Under Sup. Ct. R. 13.1, a petition for writ of certiorari is timely when it is filed on or before 90 days after entry of the judgment sought to be reviewed, or within the same 90-day period following an order denying discretionary review.
A Supreme Court Justice may, upon application, grant a motion for extension of time in which to file a petition for a period typically not exceeding 60 days. Though the application must be filed at least 10 days in advance of the petitioner’s due date, it is advisable to arrange for the Court to receive the application within this time period.
In order to obtain an extension, the pro se petitioner or petitioner’s counsel must first demonstrate that either “good cause” or “extraordinary circumstances” exist. And though the Court provides no official guidance to indicate acceptable reasons for the grant, Rule 13.5 warns to first “set out specific reasons why an extension of time is justified.”
Often acceptable forms of good cause:
- Illness or death of counsel; Illness or death of counsel’s immediate family.
- Substitution of counsel.
- Pendency of settlement negotiations which would make filing the petition moot.
- Imminence of Congressional action or ruling in another proceeding.
- Printing difficulties.
Often unacceptable forms of good cause:
- Competing appellate litigation or professional commitments.
- Planned vacation trips.
- Religious or national holiday observance.
The application itself is a short and simple document, often 2-3 pages in length. The document will be prepared in 8 ½- by 11-inch paper-format instead of the Court’s booklet-format. The type should be double spaced (except indented quotes) and filed electronically on the Supreme Court’s website. Here is a sample.
Application Contents:
- Supreme Court case caption.
- Name of the appropriate Justice (by allotment order, below).
- Corporate disclosure statement (list corporate entities by footnote).
- Statement that counsel is applying for an extension. Provide the Court with the petition’s current due date, date of the judgment sought to be reviewed, brief description of said judgment, and date of the denial of rehearing (if applicable).
- Jurisdictional statute (28 U.S.C. §1254(1) or 28 U.S.C. §1257(a)). For 28 U.S.C. §1257(a) cases counsel should provide the stage of the proceeding and manner in which the federal questions were raised (with quotations and citations to the record) and the way in which the issues were passed upon.
- Description of the nature of the case and rulings below.
- Good cause for the extension (stating whether the other parties have consented).
- Formal prayer for extension.
- Complete signature block.
- Appended copy of the opinion below and order denying rehearing (if any).
- Certificate of service.
No hearing will be held on the application; the appropriate Justice will simply make a ruling on the papers and notify parties by mail of the action taken. The Court’s electronic docket, available here, will also be updated to reflect the revised schedule.
Practitioner’s notes:
- In multi-party cases, an extension of time obtained is effective only as to those parties name as applicants or petitioners in the application. Other parties are bound by the original time limitation in which to file.
Allotment Order
District of Columbia Circuit, John G. Roberts, Jr., Chief Justice,
First Circuit, Stephen Breyer, Associate Justice,
Second Circuit, Ruth Bader Ginsburg, Associate Justice,
Third Circuit, Samuel A. Alito, Jr., Associate Justice,
Fourth Circuit, John G. Roberts, Jr., Chief Justice,
Fifth Circuit, Samuel A. Alito, Jr., Associate Justice,
Sixth Circuit, Sonia Sotomayor, Associate Justice,
Seventh Circuit, Brett M. Kavanaugh, Associate Justice,
Eighth Circuit, Neil M. Gorsuch, Associate Justice,
Ninth Circuit, Elena Kagan, Associate Justice,
Tenth Circuit, Sonia Sotomayor, Associate Justice,
Eleventh Circuit, Clarence Thomas, Associate Justice,
Federal Circuit, John G. Roberts, Jr., Chief Justice.