Animal Law Committee of the Environment, Energy and Natural Resources Section

Amicus Brief Practice in Federal Court

A program sponsored by the DC Bar Environment, Energy and Natural Resources Section’s Animal Law Committee and the DC Bar Litigation Section - November 3, 2004

Presentation Overview

Are amicus curiae or “friends of the court” briefs an effective tool in federal practice? Are they being fully utilized by practitioners on behalf of their clients? We learned about amicus briefs in law school. This program focused on how to put them into practice. It covered:

The basics of amicus practice in federal courts
How to identify cases of interest at the trial level
When to use amicus briefs
How amicus briefs are viewed by judges and justices
Whether amicus briefs are influential or successful
Ways in which amicus briefs can be utilized

Speakers:

Nancy B. Firestone, Judge, United States Court of Federal Claims
Jeffrey S. Kerr, General Counsel, Foundation to Support Animal Protection
Justin Smith, Senior Counsel, Law and Policy Section, ENRD, U.S. Department of Justice

Format

Each of the speakers individually shared their viewpoints and suggestions regarding amicus practice, then collectively answered questions from the audience.

Discussion

Justin Smith: The DOJ’s Perspective

Case Study: Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192 (Dec. 16, 2004) (deciding whether a private party who has not been the subject of an underlying civil action pursuant to CERCLA Sections 106 or 107 may bring an action seeking contribution pursuant to CERCLA Section 113(f)(1) to recover costs spent voluntarily to clean up properties contaminated by hazardous substances).

An amicus brief was filed by multiple states in support of Aviall, on a discrete legal issue not raised by the parties, but nevertheless relevant to the case (arguing that the absence of a limitations period in 113(g)(3) for a contribution action following voluntary clean up does not diminish a right to contribution). At oral argument, the brief proved effective in prompting questions which may not have been asked otherwise.

General Pointers:

Often, an amicus brief must be written for a client at the last minute, and without a deep involvement in the issues beforehand. The time may be too short to effectively file.
Developing relationships with clients and others to identify and stay abreast of the status of cases relevant to a client’s interest will allow more time to write briefs.
An amicus is a player in the litigation and should know the applicable local rules/considerations (e.g., in some courts, if the amicus brief would cause one of the judges to be recused, the brief cannot be filed; standing issues; filing fees, which may differ from the party briefs; etc.).
Avoid the “me too” brief that just repeats what the parties have argued - not effective and frowned upon by the courts.

Possible goals of the amicus brief:

To raise policy/real-world implications of the case’s outcome - similar to a Brandeis brief (recall the compelling footnote from Brown v. Board of Education discussing psychological studies involving Black and White dolls).
To reveal the “invisible” interests of which the court may not be aware (e.g., the insurance industry, sovereigns, etc.).
To present a particular legal analysis not argued by the parties

Participating as an Intervener vs. as an Amicus:

Intervention pros:

More symbolic.
More control because an intervener can appeal.

Intervention cons:

May need to participate in all aspects of litigation (i.e., discovery, pleadings, etc.), and incur the associated litigation costs.
Claim and issue preclusion applies.

Special considerations/issues when the U.S. is an amicus:

The DOJ needs more time to prepare an amicus brief because the Solicitor General must be involved.
The DOJ must carefully consider in which cases to file, particularly because the positions taken in one case could have limiting implications in future cases.
Though a minor point, the DOJ must consider how it looks to have the U.S. “gorilla” flexing its influence in a case.
Sometimes, the U.S. believes the court will get it right without its input, so it will remain uninvolved.
The DOJ will not file an amicus brief when the U.S. is a real party in interest.
See 28 U.S.C. 2403 regarding intervention by the U.S.
Tribal sovereignty, superfund, and citizen suits, are typical types of cases in which the U.S. will get involved.

Jeffrey Kerr: The Public Interest Organization’s Perspective

General Pointers:

See U.S. Supreme Court Rule 37(1) (“An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.
An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”).
Disclosure of interest of the parties behind the amicus brief is important, and adds to the relevance of the brief.
Rarely is there a need to get involved at the district court level because the issues have not been fully developed yet - it’s better to wait for the appellate stage.
Clients must be prepared for the demands of quickly filing an amicus brief, particularly corporate clients not familiar with the process.
Practitioners should look for opportunities for their clients to file amicus briefs.
Know the Supreme Court Rules.
Establish a network that identifies cases addressing issues of particular interest.

Considerations in Determining Whether to File:

Is the case/issue relevant or important to the client?
Will involvement add value to the case - or actually hurt it?
Is involvement necessary?
If a real party to the case has asked for an amicus brief to be filed, their motivations for asking should be considered. Might the party help the client next time?
Will the amicus brief be good for networking/other opportunities, e.g., might the filer be asked to testify on the legislative side of an issue as a result of the brief?

The Amicus Brief in Animal Law:

The issues to follow and on which to file a brief are not just the obvious ones like regulatory issues regarding animal treatment.
Also important are larger legal concepts that impact public interest organizations and activities, including: standing; right to free speech and assembly; search and seizure of protestors; infiltration of organizations by law enforcement agencies; status of animals as individuals versus property (e.g., in divorce and estate planning cases); recovery of damages for emotional pain and suffering from loss of a companion animal; FOIA; and even civil RICO cases.

Case Study: Scheidler v. NOW, Inc., 537 U.S. 393 (2003) (RICO used to prevent closing of abortion clinics by right-to-life protestors, raising the issue of whether an economic motivation is necessary to bring a RICO suit for extortion). People for the Ethical Treatment of Animals (PETA) became involved because the same law could land an animal activist in prison if the “obtain property” element of RICO is not required. So, again, it’s not always the obvious legal issues that amici address.

Judge Nancy Firestone: The Court’s Perspective

When and when not to file:

Do file where there is a direct interest in another case that will be impacted by the outcome of this case - especially where large amounts of money are at stake (e.g., a government benefits case). The judge may arrange it this way to ensure she has a full understanding of the issues in all of the cases so she can issue sound decisions.
Don’t file in trial court cases - the goal is not to shape the case, just to influence the case’s outcome - unless: (1) the party in interest is doing an inadequate job/is ill-suited or ill-financed to handle the issues; or (2) the policy issue is front and center in the case, e.g., the first case pursuant to a new high-profile regulatory scheme.
Don’t file “me too” briefs, which just create more for the judge/clerks to sort through - unless there is an explanation of why the amicus brief’s treatment of the issues is better and thereby provides damage control.

General Pointers:

85% of U.S. Supreme Court cases have at least one amicus brief filed, but Judge Posner, for example, has disallowed amicus brief in some cases.
Before filing an amicus brief in a Supreme Court case, get an attorney who knows how to do it - it really helps advance the position and the Court takes notice of practitioners it already knows.
A very good law review article on amicus briefs is The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743 (2000).
Be clear and simple. Map-out the policy implications of each possible outcome of the case, realizing that judges may not be (or probably are not) aware of them because they’re unfamiliar with the subject matter. This will help the judge reach the correct decision, which is what a judge wants.
The goal is to be the “savior of the day” to the court by bringing clarity to the issues.
The district courts will often allow an amicus to participate in oral argument, but rarely so in Supreme Court cases.
A truly helpful amicus brief is welcomed; a bad amicus brief is just annoying.

General Panel Comments

Instead of or in addition to filing an amicus brief, consider discussing the issues with the party attorneys to see if they’re thoroughly addressing every issue.
PACER is another way to access briefs and other filings to see if issues are being adequately addressed by the parties.
Identify the amici on the other side of the issue.
A party may actually direct/coordinate with an organization filing an amicus brief.
Leave of court to file an amicus brief may be required.
By filing the initial request for amicus participation, even if denied, the brief filed with the motion will be read or seen, thereby advancing the position at least to some extent - and it’s a red flag to the judge that there are larger issues here. Of course, in reality, the amicus brief is rarely denied.
Review Supreme Court filings by the Solicitor General to get a good model of an amicus brief.