Before you put together a U.S. Supreme Court petition’s appendix, you must do two things:
- Forget what you’ve previously learned about lower court appendices; and
- Read Supreme Court Rule 14.1(i).
Rule 14.1(i)’s limited categories of required documents reflect the Court’s unique role and the narrow purpose of a petition for certiorari: to demonstrate a case’s cert worthiness. While it directly lays out a specific order for appendix material, vague wording in the rule makes it difficult to determine what the Court wants in particular cases. This post will delve into the petition appendix rule while demonstrating its proper application.
A petition for a writ of certiorari asks the Supreme Court to select your case for review from a huge stack of petitions competing for a coveted slot on the docket. Rule 10 describes what the Court itself considers while wading through the cert pool. Only “rarely” does the Court care about “erroneous factual findings or the misapplication of a properly stated rule of law.” As described in an analysis of the cases which the Court accepts or denies, the “Justices have repeatedly claimed that the Court’s role is not to remedy incorrect legal conclusions of the lower courts.” R. Stephenson, Federal Circuit Case Selection at the Supreme Court: An Empirical Analysis, 102 Georgetown L.J. 271, 288 (2013).
Instead, the subparagraphs in Rule 10—labeled a, b, and c—essentially narrow the Court’s “compelling reasons” for granting a writ to:
- settling disputes among lower federal and state courts about what federal law is;
- bringing lower state and federal appellate courts’ application of federal law into line with settled Supreme Court precedents;
- correcting “far” departures by a federal court from “the accepted and usual course of judicial proceedings”; and
- addressing important unsettled federal questions moving up through the federal or state courts.
Just as your brief’s argument should focus on these factors, your appendix should advance that narrow argument, after satisfying certain minimum requirements, discussed below.
Required: “Relevant” Lower Court/Agency Opinions and Orders
Required appendix documents are all court or administrative agency orders of some kind. These may or may not be obvious, so here are some guidelines about selection and arrangement, as prescribed by Rule 14:
The Challenged Decision.
Begin the appendix with “the opinions, orders, findings of fact, and conclusions of law, whether written or orally given and transcribed, entered in conjunction with the judgment sought to be reviewed.” The first item will be the document in which the highest court (below the U.S. Supreme Court) explained its reasons for the final judgment that you are attacking.
When Cockle reviews a batch of documents intended for inclusion in an appendix and checks for compliance with Rule 14’s requirements, we start by identifying the court order which explains why the court below took the action that petitioner claims was wrong. Typically, this is the latest opinion issued by the federal court of appeals or state supreme court.
There may also be a formal judgment or order decreeing the action (dismissal, affirmance, reversal, etc.) without explaining why, but it is the explanatory decision that goes first in the appendix. The formal nonexplanatory order likely would come next, but only because it is the latest in the batch of documents in the next required category. An accompanying mandate should not be included.
Other Relevant Decisions.
“Any other relevant opinions, orders, findings of fact, and conclusions of law entered in the case by courts or administrative agencies” should be included next. “Relevant” is the key narrowing phrase here.
Think of this second category as the direct line of decisions or actions by courts/agencies that led to the decision you now challenge.
To help you choose which documents to include, review the first item above, and see if it refers specifically to an order by a lower court as the subject of review. If so, that second, specified decision is part of this next batch. And if that referenced order refers to something else that places it in the chain of decision—such as a district court judge referring to a magistrate’s report as adopted or rejected in whole or in part—then it should also be included in this batch.
Omit the many procedural orders and notices that do not highlight the relevant facts or law at issue. “Other relevant decisions” also may include opinions in companion cases “if reference thereto is necessary to ascertain the grounds of the judgment.”
Once you have identified everything that goes in the “other relevant” batch, the individual documents should be arranged in reverse chronological order.
Rehearing Denial.
The last required appendix document may not exist, but if it does, it goes at the end of the “required” category. This would be an order denying rehearing by the court that issued the final judgment you are directly challenging.
It is not necessary to request rehearing to preserve the right to petition for certiorari, but if you do, and if the request was timely, then the court’s denial of rehearing sets the starting date for the 90 days allowed for filing a cert petition. Placement of the denial here may be out of reverse chronological order, but Rule 14 and standard practice contemplate the document at this location.
Nothing else should be included in this sequence of required court or agency orders. If a document doesn’t fit under subparagraphs (i) through (iv), it would have to fit under one of the next two provisions to be included at all, and would have to follow all of the required orders.
Spillover from the Brief
Next up are two specific subcategories that are listed under provisions for required sections of the brief, but the rule requires you place them in the appendix instead if they are “lengthy” or “voluminous.” Rule 14.1(i)(v) refers back to two required sections of the brief, one involving the text of law involved in the case, Rule 14.1(f), and the other involving quotations from state-court records showing the timing and manner of raising federal questions and how the state courts dealt with them, Rule 14.1(g)(i). If the provisions under (f) are “lengthy” or the record portions under (g)(i) are “voluminous,” they “shall be” included in the appendix, and “citation alone” in the brief suffices for the law provisions.
These two categories differ for an important tactical reason. When you move “lengthy” text of laws from the brief to the appendix, you do not gain anything under the word-limit provision in Rule 33 applicable to the brief. That is because verbatim quotations of laws required to be in an early section of the brief under Rule 14.1(f) do not count against the brief’s word limit anyway. Rule 33.1(d).
However, the word-limit provision makes no mention of excluding from the count anything required to be included in the brief under Rule 14.1(g)(i). As such, if you pull a “voluminous” amount of 14.1(g)(i) text out of the brief and move it to the appendix, you don’t have to include it in the brief’s word count.
Other Material Believed Essential
Rule 14.1(i)(vi) is the tempting catchall for petitioners who don’t care too much about printing costs. It calls for “any other material the petitioner believes essential to understand the petition.”
To resist the temptation to pile up exhibits and testimony and pleadings and material from outside the case record, recall the limited purpose of certiorari petitions discussed in the first part of this series. The key word is “essential”. A few factors about the essential-material category may be helpful:
First, there is no designated order for arranging the documents within this end-of-appendix grouping.
Second, the rule talks about “material,” not the case record. Just as you can refer in the brief to any document in the world, whether in the case record or on the internet or on a library shelf in Outer Mongolia, you can put anything from anywhere in the appendix, as long as it can fit in the Supreme Court’s booklet format.
Third, unlike the category for required orders, the catchall materials can be edited down to the truly essential parts. A snippet of trial testimony can be as short as the contextual information and bits and pieces of the transcript, with a row of three asterisks marking the omitted material.
Fourth, always keep in mind that the Court, at the petition stage, probably will not focus on whether documents in the petition appendix establish the truth of what you are arguing in the petition brief. The focus is on whether to accept the case. A citation in the brief to the record below normally is as good as a citation to an appendix page for backing up a factual assertion or some other point, in the same way that you would cite to a case or a book or internet page without attaching copies. Just as the court can look up a case citation, it can pull up the case record to check a claim about what happened in the lower courts.
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Now you can put your Rule 14 appendix together with confidence that following these guidelines will help you effectively present your plea to hear your case on the merits.