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Legal Commentary: Prawfs
Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs]. According to Easterbook, amicus briefs in support of rehearing en banc must be filed no later than the petition for rehearing itself, notwithstanding Fed. R. App. P. 29(e), which provides that ?[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed.? (A deadline with which the amici in this case complied, at least vis-a-vis the petition for rehearing.) For Easterbook, the "principal brief" is not the petition for rehearing (which, he argues is not even a "brief"), but the opening merits brief of the party before a three-judge panel.
Leaving aside the expediency-based reasons that Judge Easterbook invokes to support his reading of Rule 29(e) (at least some of which strike me as easily preserved through other means), this strikes me as a ruling that is both silly and likely to cause mischief: Silly because a petition for rehearing en banc is very much a "brief," full of legal arguments for why the original panel opinion should be reconsidered by the entire court. Indeed, is a "petition for certiorari" any less a brief because it is a "a request for discretionary relief" that's not called a "brief"?
And it's likely to cause mischief because one of the central utilities of amicus briefs is to advance arguments _not_ made in the relevant filing by the party (and how could the amicus know what the party was arguing before their brief is actually filed?). Instead, Easterbrook's bizarre reading will encourage the very kind of substantive and logistical coordination between parties and their potential amici that both the FRAP and the Supreme Court's rules in various places (rightly, in my mind) attempt to discourage.
I have a great deal of respect for Chief Judge Easterbrook, but this strikes me as a very unfortunate ruling--and one that I hope his colleagues successfully persuade him to reconsider.
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