Upon Further Review

Three important changes to the Federal Rules of Appellate Procedure are scheduled to take effect on Dec. 1. These amendments will affect the due dates for appellate reply briefs, the acceptance or rejection of amicus briefs that would result in the recusal of appellate judges and the procedures governing a federal appellate court's stay of its mandate in cases where U.S. Supreme Court review will be sought.

Nearly two years ago, on Dec. 1, 2016, the Federal Rules of Appellate Procedure were amended to eliminate the extra three days for responding or replying to briefs or motions that were served electronically. At the time, one concern that advocates voiced about that change was the effect it would have on the period for filing a reply brief.

Before the 2016 amendment, a reply brief would be due 17 days after the brief for the appellee was electronically filed. In practice, that would guarantee at least two weeks in which to prepare and file a reply brief. After the period for filing a reply brief was reduced to 14 days, the period for preparing and filing a reply brief could sometimes end up effectively being as short as 11 days.

For example, if the appellee's brief was due on Friday, Oct. 12, and the appellee files the brief at 11:58 p.m. on that date, the due date for the appellant's reply brief would be Friday, Oct. 26. But because of how late on a Friday night the appellee's brief was filed, the appellant's counsel might not be able to begin reviewing the appellee's brief and working on the reply brief until the following Monday, Oct. 15, providing in effect only an 11-day period in which to prepare and file the reply brief.

The federal appellate rules advisory committee viewed this concern as legitimate in 2016 when it decided to eliminate the extra three-day period for filing a reply brief, and now some two years later the remedy for this concern (extending the period for filing a reply brief from 14 to 21 days) will finally take effect. This rule amendment will take effect in the U.S. Court of Appeals for the Third Circuit as of Dec. 1, and should immediately apply to both pending and newly filed appeals.

The second noteworthy amendment to the Federal Rules of Appellate Procedure that will take effect on Dec. 1 concerns the matter of strategic recusal. Federal Rule of Appellate Procedure 29 governs the filing of amicus briefs. The amendment in question states that “a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification.”

Just as some lawyers are the spouse or parent of another lawyer, the same is true of federal judges. And typically a federal judge will recuse himself or herself from hearing cases where the law firm for which a spouse or child works represents a party. A concern that apparently has arisen is that a nonparty amicus, either intentionally or by accident, would retain a law firm whose involvement would be sufficient to trigger the recusal of an appellate judge to submit an amicus brief in a case, either at the merits or the rehearing stage. Or the identity of the amicus itself could give rise to these same recusal concerns.

This amendment to Rule 29, taking effect this December, explicitly authorizes a federal appellate court to reject any amicus brief whose consideration would result in the recusal of one or more judges. Interestingly, during the rule amendment process, the Pennsylvania Bar Association was among several groups that submitted a comment opposing this rule change, arguing that “the proposed amendment is unnecessary because amicus briefs that require the recusal of a judge are rare.” Ultimately, however, this rule amendment was approved.

The third and final noteworthy amendment to the Federal Rules of Appellate Procedure that will take effect in December concerns staying a federal appellate court's mandate. The mandate is a federal appellate court's formal notification of its decision to a lower court, and its issuance returns control of the case to the lower court from the appellate court.

The period in which the losing party can seek U.S. Supreme Court review of a federal appellate court's ruling is 90 days, while the time in which the federal appellate court ordinarily will issue its mandate is far shorter. In many cases, the issuance of a federal appellate court's mandate is of no practical consequence, because it has no discernible effect on the status quo. And as long as a petition for writ of certiorari is timely filed in the U.S. Supreme Court, the fact that a federal appellate court's mandate has already issued will have no effect on the Supreme Court's consideration of whether to accept a case for review.

But there are cases in which the losing party in a federal appellate court will want to seek a stay of the appellate court's mandate before seeking U.S. Supreme Court review. Assume a lawsuit resulted in a large award of damages to the plaintiff. The judgment could be stayed pending appeal by posting adequate security in the form of a supersedeas bond. But once the federal appellate court's mandate issues, the stay pending appeal no longer exists, even if the losing party intends to seek U.S. Supreme Court review.

In this scenario, if the defendant has reasonable apprehension that recovery of the judgment from the plaintiff would be impossible if the judgment were paid pending U.S. Supreme Court review, the defendant may have good cause to seek a stay of the mandate pending U.S. Supreme Court review. And even more urgent need for staying the mandate could exist in other cases, such as those involving challenges to imposition of the death penalty.

The amendments to Federal Rule of Appellate Procedure 41 governing stays of the mandate will accomplish two things. First, an amendment will make clear that once a stay has been obtained from a federal appellate court, the period of the stay will include any extension of time in which to file a petition for writ of certiorari that the party obtains from the U.S. Supreme Court. And a second amendment will make clear that any stay of the mandate must expire immediately after the U.S. Supreme Court denies review “unless extraordinary circumstances exist.”

The amendments to the Federal Rules of Appellate Procedure discussed above will go into effect on Dec. 1 and “shall govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate blog at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.