Different Strokes for Different Courts

In a new book to be published in November, Second Circuit Judge Jon O. Newman and Duke law professor Marin K. Levy detail the many different rules adopted by the federal circuit courts. Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals, grew out of Levy’s clerkship experience in the Second Circuit where she wondered whether other circuits used a “non-argument” calendar for a limited range of cases. When she asked the clerk of court that question, she learned that the courts operate in silos and know little about what sister courts do.

At a Constitution Day event sponsored by the Supreme Court Historical Society (September 17), the two coauthors explained that the book reflects an examination of local rules and practices, as well as interviews with chief judges and surveys of court clerks. During their talk, Judge Newman and Professor Levy highlighted three practices from different circuits.

One concerned a situation that often bedevils appellate counsel. You have argued the case or made a motion that is fully briefed, and then you wait and wait for a disposition. Counsel will often sit in frustration at the delay, but rarely attempt to bring the situation to the court’s attention so as not to create a bad impression. In one state court appellate case I argued, I waited more than two years for the court’s opinion, which finally issued the decision earlier this year. When I served on a panel at a conference with another judge from that circuit, I asked whether there was anything I could do to encourage a decision. She told me that there really was nothing to do, although she mentioned a legendary response that had occurred on one occasion: a brave lawyer filed a birthday card on the second anniversary of oral argument. A decision issued soon afterwards. I chose not to follow that approach but received a favorable decision two years and one month after the oral argument.

Many advocates similarly eschew some type of prod to the court. They may file supplemental authority to remind the court that the case is pending, but take no other action. Newman and Levy, though, learned that the Ninth Circuit encourages counsel to contact the clerk over a delayed motion or appeal. The advisory committee note to Circuit Rule 25-2 tells counsel to send a letter to the Clerk. It sets timelines for when a delay is deemed unreasonable: a motion pending more than four months, no notice of oral argument or submission on the briefs within 15 months of the completion of briefing, a merits decision more than nine months after submission, a mandate taking more than 28 days to issue, or a petition for rehearing pending longer than six months. No other federal circuit has made similar provision to address unreasonable delay.

Also unique among the federal circuits is the Federal Circuit instructions on who to refer to the district court in a case. For the past decade, the Federal Circuit has published Internal Operating Procedures that includes Procedure 11, which describes citation rules. Rule 9 of that booklet indicates that it is disrespectful to the originating court for counsel to refer to it as “the court below,” “the lower court,” the lower tribunal,” or “the judge below.” Instead, the court insists that counsel use “district court,” “trial court,” “district judge,” “trial tribunal,” or “court.”

The third unique example the authors discussed was the Second Circuit’s deadline for briefing. Federal Rule of Appellate Procedure 31(a)(1) requires the appellant to file a brief within 40 days after the record is filed. Replies are due within 30 days of that brief, while a reply is due within 21 days as long as it is at least seven days before argument. Rule 31(a)(2) authorizes a court of appeals to shorten the time by local rule or order in a particular case. Yet, the Second Circuit, by local rule, has lengthened the time, requiring the opening brief within 90 days to render unnecessary motions to extend the due date. The parties may confer and set their own times, as long as it does not go beyond 90 days. The court will deny motions to extend beyond that absent “a most extraordinary circumstance.”

A multitude of other differences exist between circuits. For example, in most circuits, you learn of the judges who will serve on your panel 30 days before oral argument. However, in the Fourth and Seventh Circuit, the clerk posts the panel the very morning of argument.

Although it may seem odd that different circuits follow such different rules, it pays for an advocate who argues in more than one circuit to know the differences. Written & Unwritten performs a valuable service for that traveling advocate.