The U.S. Court of Appeals for the Ninth Circuit is located in San Francisco, California, and serves Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Below are a few unique rules and attributes of the Ninth Circuit.
Cir. R. 28-2.6 states that there must be a “Statement of Related Cases” section on the last page of the initial Brief identifying any known related cases pending in the Court. The Statement must include the name and Court of Appeals docket number of the related case and describe its relationship to the case being briefed. If no other cases are deemed related, a statement should be made to that affect.
Cir. Rule 28-2.7 states that pertinent Constitutional provisions, treaties, statutes, ordinances, regulations, or rules must be set forth verbatim and with appropriate citation either directly following the Statement of Issues Presented for Review or in an Addendum introduced by a Table of Contents and bound with the Brief or separately. If the provisions are set as an Addendum to the Brief, a statement must appear following the Statement of Issues indicating the provisions will appear in the Addendum. If the provisions are placed as an Addendum and bound with the brief, the Addendum must be separated from the body of the Brief by a distinctively colored page.
Cir. R. 28-2.8 states that every assertion in the Brief regarding matters in the record shall be supported by a reference to the location in the Excerpts of Record where the matter is to be found.
The Ninth Circuit requires “Excerpts of Record” rather than an “Appendix”. The Excerpts should be a well-organized and accessible collection of all the unsealed documents in the record that are necessary to understand and decide the issues on appeal. With the required documents at their fingertips, judges and their staff can spend more time considering the issues instead of trying to find relevant documents.
The Ninth Circuit’s Appellate ECF (Electronic Case Files) system is mandatory for all attorneys filing in the Court, unless they are granted an exemption. After the Court reviews the electronically-submitted Brief and Excerpts, the Court will direct parties to file 7 paper copies of the Brief and 4 paper copies of the Excerpts with the Court. If the opposing party is an electronic filer, it is not necessary to serve the Brief in paper format on that party. If the opposing party is not an electronic filer, it is necessary to serve the Brief in paper format on that party on the day that the Brief is submitted to the Court.
The paper copy Briefs must include at the end a “Certificate for Brief in Paper Format.” This certificate should indicate that the hard copy Briefs are exactly the same as the Brief filed electronically. This certification is NOT included in the electronic copy filed with the Court.
Trust Cockle Legal Briefs to help prepare your Appellate Brief. We take pride in our efficient and detail-oriented process. As our client, you can expect all of the following: expert consultation from one of our Ninth Circuit specialists; professional proofreading and review for rule compliance; a properly formatted Legal Brief that meets the Ninth Circuit’s requirements; and your Brief will be printed, bound, and filed by its deadline. Contact us for a sample or speak to one of our Ninth Circuit Court of Appeals experts today.
Every year, the Supreme Court receives about 10,000 petitions for writ of certiorari, but only hears about 80 of them. Unlike lower appellate courts, the Supreme Court’s review of a case is not a matter of right, but of judicial discretion. Rule 10 of the Supreme Court’s Rules states that a petition for writ of certiorari will be granted only for compelling reasons. Below are some of the factors the Supreme Court typically considers when deciding what cases to hear:
- The Court will hear cases to resolve a conflict of law. There are 13 federal circuits and 50 state supreme courts that make up the United States judicial system. Sometimes, a number of these courts reach different conclusions and fall into disharmony about an issue of federal or constitutional law. The Supreme Court then may then resolve the incongruity so that all areas of the country are uniform with respect to that law.
- The Court will hear cases that are of great public importance. Sometimes the Court will consider a highly unusual case which calls for the Supreme Court’s intervention. One example is U.S. v. Nixon which involved the Watergate scandal. Another more recent example is Bush v. Gore arising from the extremely close 2000 presidential election.
- The Court hears cases when lower courts ignore Supreme Court precedent. If a lower court blatantly disregards a past Supreme Court decision, the Court may hear the case to correct the lower court, or the Court might just overrule the case without issuing an opinion.
- The Court will hear cases where an area of law is unsettled. If a state court or a United States court of appeals has decided an important question of federal law that has not been settled by the Supreme Court, the Supreme Court may hear the case to settle the matter.
Petitions for writ of certiorari are rarely granted for any other reasons. It is a common misconception that the Supreme Court will hear a case solely because the lower court made a procedural mistake, or misapplied the law to the facts. However, Rule 10 makes clear that certiorari is rarely granted in these instances. The unfortunate reality is with so many petitions for writ of certiorari being filed each year, there is no way the 9 justices can right every wrong committed by the lower courts. The justices, understandably, have to be selective in the cases they decide to hear. If you think your case has what it takes to be heard by the Supreme Court, give Cockle Legal Briefs a call to schedule the printing of your brief!
Amicus curiae – Latin for “friend of the court,” an amicus curiae is not a party to the case, but is a person, group, or organization who files a brief lending a unique perspective to the Court in the hopes it might influence the Court’s decision of an issue.
Brief in Opposition – The response to a petition for a writ of certiorari filed by the respondent setting out the reasons the Court should not grant certiorari. A brief in opposition is not mandatory, except in a capital case, and the right to file one is often waived.
Case law – The law as established in previous court decisions.
Conference – The private meeting held every two weeks during which the 9 justices decide which petitions for writs of certiorari to grant. Every petition that gets docketed gets distributed for conference, but only a select few are discussed. An even smaller number are actually granted.
Circuit court – One of the 13 United States Courts of Appeals comprising the intermediate appellate courts of the federal court system.
Docket – A docket is an official summary of proceedings in a court. It can also refer to a court’s calendar. In the Supreme Court, a case is “docketed” when it is placed on the Court’s docket and assigned a docket number.
En banc – French for “on the bench,” it is where all the judges of a court of appeals decide a case together as opposed to the usual panel of three judges.
Habeas corpus – Latin for “you have the body,” a petition for habeas corpus asks a federal court to review the legality of a prisoner’s detention and to justify the prisoner’s continued confinement.
Joint appendix – A joint appendix is a collection of legal documents from a case’s appellate record submitted by both parties at the merits stage of a Supreme Court case.
Judgment – The official decision of a court giving final resolution to the dispute between parties to a lawsuit.
Jurisdictional statement – A concise statement in an appellate brief which shows the court the basis of its jurisdiction to hear a case.
Merits stage – The round of briefing that occurs once the Court has granted certiorari in a case. At this stage, the focus in brief writing shifts from why a case should be heard to why a party should win.
Opinion – When a court decides a case, it typically issues a written summary of the facts and legal analysis used to arrive at a case’s decision.
Opinion below – The opinion issued by the court that heard the case immediately before appealing to the Supreme Court, usually from a federal court of appeals or a state court of last resort.
Order – A written instruction from a court directing a party or parties to take a certain required action.
Parties – The participants in a lawsuit or case.
Per curiam – Latin for “by the court,” refers to an unsigned opinion written for the court as a whole by an unidentified justice.
Petition for rehearing – A written request to a court by a losing party asking to rehear a case in light of new facts or circumstances.
Petition for writ of certiorari – A written request to the Supreme Court asking it to review the decision of a court below.
Petition for writ of mandamus – A judicial remedy granted by the Supreme Court, exceptionally rarely, where it orders a lower court to fulfill some legal obligation. Unlike a certiorari petition, there are no filing date constraints.
Petitioner – A party who lost in the lower court and asks the Supreme Court to review the decision of the lower court.
Pro se – A person who acts as one’s own attorney.
Question presented – A concise statement of the legal issue or issues the petitioner is asking the Court to resolve.
Reply – The petitioner’s response to the respondent’s brief in opposition.
Respondent – The party who won in the lower court.
Service – The mandatory process of presenting opposing parties with the documents filed in a court.
Statute – A law passed by a legislature.
Supreme court – The Supreme Court of the United States is the farthest you can appeal a case in the United States. It consists of 9 justices, appointed by a sitting president, who serve for life or until retirement. The Supreme Court hears cases on a discretionary basis, resolving federal law questions of great import and legal issues where the circuit courts or the highest state courts are in disharmony.
Table of authorities – A list of all of the cases, statutes, provisions, and other items one references in their brief.
The U.S. Supreme Court Rules describe an utterly unique and highly specific set of practice standards. Every new filer—whether she is a seasoned litigator with years of experience in the lower courts, or a pro se petitioner—should review the Rules to make sure the document will be accepted by the Clerk. However, many of the idiosyncrasies of practice in the Supreme Court can leave the new filer more than a little confused, even after a close reading of the Rules. The experts at Cockle Legal Briefs review every draft to make sure the briefs we print adhere to all of the Supreme Court Rules. Here are some common misunderstandings we encounter:
First, The Big One: Rule 13 gives petitioners ninety days to file. NOT three months. If you calendar your due date for the same date three months after your lower court judgment, denial of rehearing, or denial of discretionary review, you will usually* miss your jurisdictional filing deadline. If you are not sure about your due date, give us a call so we can run it through our calculator to confirm your deadline.
Another frequent mistake, even for regular amicus filers, arises from a misreading of Rule 37, governing amicus briefs. In most respects, the requirements of Rule 37.2—dealing with petition-stage amicus briefs—mirror those found in Rule 37.3—applying to merits-stage amicus briefs—with one important exception: at the petition stage, amici are required to give the parties ten days’ notice of intention to file. This requirement is independent of obtaining the parties’ consents, and the Rules do not provide for a party’s waiver of the notice requirement. Furthermore, while government amici are excused from the consent requirement, they still must give ten days’ notice of intent to file, and they must aver to that notice in the brief.
A certain class of respondents must also give notice. Under a recent revision to Supreme Court Rule 12.6, respondents who were aligned with the petitioner below, and who support the grant of a petition, must give the other parties notice of their intention to file a respondent’s brief in support. But with a quirky twist to the notice scheme, the Supreme Court Rules mandate notice within twenty days of docketing, not ten days before filing. A similar deadline, but not always the same.
Phantom Rules: You’re Sure They’re There, But They’re Not
Old habits die hard, and an attorney who has practiced extensively in the lower courts might simply assume that the U.S. Supreme Court applies the same requirements found in other courts.
For example, federal appellate litigators are familiar with the electronic Pacer filing system used in the federal district and circuit courts. But the U.S. Supreme Court Rules do not provide for electronic filing. Filers must send paper documents to the Court and to service recipients. Recently, the Court began requiring filers to email a separate PDF version of their document to service recipients, in addition to the paper service. And at the merits stage, the Court asks filers to email a PDF copy to the Clerk’s Office, but Rule 25.9 makes clear that the PDF does not replace the paper filing. And these PDF’s are directly emailed, not uploaded onto Pacer or some other document-management system.
Another common practice in the lower courts is to file an appendix that includes every document referenced in the brief. This is not the practice in the U.S. Supreme Court. The requirements for an appendix to the petition—the only type of brief that must include an appendix—are fully laid out in Supreme Court Rule 14.1(i). Basically, the appendix must include the opinion or order being appealed, the final orders or opinions from the other courts below, and any order denying rehearing or discretionary review.
Rules That Say…Well…Something
Some Supreme Court Rules can be a little impenetrable. Rule 33.1 requires booklet briefs to be printed on 60-pound paper, bound in 65-pound cover stock. So if your petition runs to say, eighty-five pages, and you file forty copies with the Court, the poor clerk will need to process over 100 tons of documents!
Actually, no. In the printing industry, we describe paper thickness in pounds, expressing the weight the paper would have over a certain number of sheets, not the mass of each sheet.
But what’s that part about 2-points of leading between the lines (Rule 33.1(b))? Pronounced like the metal surrounding panes of stained glass—not like the questions only permitted on cross examination—leading is a very old printer’s measurement from a time when printers inserted strips of lead between lines of type.
The Cockle family began printing legal briefs in 1923, so we know how navigate the Supreme Court Rules. Let us help you make sure your brief conforms to all of the Court’s requirements.
* If the initiating event occurs in the January of a non-leap year, the December before a non-leap year, or in any February, three months is within ninety days.
Today, August 8th, 2014, Cockle Legal Briefs printed and filed Virginia’s petition in the same-sex marriage case Rainey v. Bostic, et al. in the United States Supreme Court.
The question presented is:
Whether Virginia violates the Due Process and Equal Protection Clauses by denying the right of marriage to same-sex couples and by refusing to recognize same-sex marriages lawfully performed outside of Virginia.
Litigation at the Supreme Court is called an Original Action. The parties are bringing their dispute directly to the Supreme Court, bypassing all lower courts. Most Original Actions are civil disputes between two or more States and the Court always has original and exclusive jurisdiction over these cases. See 28 U.S.C. § 1251(a). Recent cases have involved disputes over water rights between States and interpretation of Interstate Compacts.
In addition, 28 U.S.C. § 1251(b) identifies other cases where the Court has original (but not exclusive) jurisdiction:
- All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
- All controversies between the United States and a State;
- All actions or proceedings by a State against the citizens of another State or against aliens.
- Orig. 128, Alaska v. United States;
- Orig. 136, Brzak, et al. v. United Nations, et al.;
- Orig. 139, Mississippi v. City of Memphis, et al.;
- Orig. 140, Louisiana v. John Bryson, Secretary of Commerce;
- Orig. 141, Texas v. New Mexico & Colorado.
Supreme Court Rule 17 controls Original Actions. And, although the content of pleadings and briefs should comply with the Federal Rules of Civil Procedure, these documents must be prepared in booklet format as prescribed by Supreme Court Rule 33.1.
The initial pleading (Complaint) must be preceded by a Motion For Leave To File and may be accompanied by a brief in support of the motion. An appendix is optional. See Supreme Court Rule 17.3. There is no due date and the filing fee is $300. When a State is a party, the Complaint must be served on both the Governor and the Attorney General.
After resolution (and sometimes years later), a case between the same parties involving the same or similar issues may be brought again under the same docket number. Example:
- Orig. 126, Kansas v. Nebraska & Colorado, filed 5/1/98; case concluded 12/1/03; new motion for leave filed 5/3/10; motion granted 4/4/11; active case.
However, there is no guarantee that the Court will grant the motion. Example:
- Orig. 133, Arkansas v. Oklahoma, filed 11/7/05; motion denied 2/21/06.
Original Actions are rare. The most recent filing is Orig. 143, Mississippi v. Tennessee, et al., filed 6/6/14. Each Original Action is unique. But each one goes through the same, distinct stages from filing to resolution. Our next posts will explore those stages in depth.
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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.
Cockle Blog will occasionally provide opinions on certain cases and Court procedures. These opinions should be viewed with the recognition that no one can predict with certainty how the Supreme Court will rule on particular cases. Any reliance on articles contained in Cockle Blog must be done at one's own risk.