Nat'l Organization v. Scheidler, Joseph M. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3076, 99-3336, 99-3891 & 99-3892
National Organization for Women, Inc.,
on behalf of itself and others, et al.,
Plaintiffs-Appellees,
v.
Joseph M. Scheidler, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 86 C 7888--David H. Coar, Judge.
Submitted March 13, 2000--Decided March 14, 2000
Opinion July 31, 2000
Before Posner, Chief Judge, and Kanne and Diane P.
Wood, Circuit Judges.
Posner, Chief Judge. On February 26 of this
year, the motions judge for the week denied the
requests of Priests for Life, Life Legal Defense
Foundation, and the Southern Christian Leadership
Conference for permission to file amicus curiae
briefs in support of the appellants.
Reconsideration of the judge’s order was twice
sought by one of the appellants, the second time
urging that a three-judge panel consider the
requests even though the court has, pursuant to
Fed. R. App. P. 27(c), delegated the decision of
such requests to a single judge, the motions
judge for the week in which the request is filed.
7th Cir. Operating Proc. 1(a)(1). The requests
were, however, referred to the entire motions
panel, and by it denied, and we have decided to
issue an opinion explaining our denial in the
hope of clarifying the court’s standards for
amicus curiae briefs.
Whether to permit a nonparty to submit a brief,
as amicus curiae, is, with immaterial exceptions,
a matter of judicial grace. Fed. R. App. P.
29(a); United States v. Michigan, 940 F.2d 143,
165 (6th Cir. 1991); Strasser v. Doorley, 432
F.2d 567, 569 (1st Cir. 1970); cf. Miller-Wohl
Co. v. Commissioner of Labor & Industry, 694 F.2d
203, 204 (9th Cir. 1982). The reasons are
threefold (see Ryan v. CFTC, 125 F.3d 1062 (7th
Cir. 1997) (chambers opinion); Community Ass’n
for Restoration of the Environment v. DeRuyter
Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash.
1999); Long v. Coast Resorts, Inc., 49 F. Supp.
2d 1177, 1178 (D. Nev. 1999); United Stationers,
Inc. v. United States, 982 F. Supp. 1279, 1288 n.
7 (N.D. Ill. 1997)):
1. We court of appeals judges have heavy
caseloads requiring us to read thousands of pages
of briefs annually, and we wish to minimize
extraneous reading. It would not be responsible
for us to permit the filing of a brief and then
not read it (or at least glance at it, or require
our law clerks to read it), at least when
permission is granted before the brief is
written, and so reliance on our reading it
invited. Therefore amicus curiae briefs can be a
real burden on the court system. In addition, the
filing of an amicus brief imposes a burden of
study and the preparation of a possible response
on the parties.
2. Amicus curiae briefs, which we believe
though without having proof are more often than
not sponsored or encouraged by one or more of the
parties in the cases in which they are sought to
be filed, may be intended to circumvent the page
limitations on the parties’ briefs, to the
prejudice of any party who does not have an
amicus ally. The lawyer for one of the would-be
amici curiae in this case admits that he was paid
by one of the appellants for his preparation of
the amicus curiae brief. And that appellant comes
close to admitting that its support of the
requests to file amicus briefs is a response to
our having denied the appellant’s motion to file
an oversized brief.
3. Amicus curiae briefs are often attempts to
inject interest-group politics into the federal
appellate process by flaunting the interest of a
trade association or other interest group in the
outcome of the appeal.
The policy of this court is, therefore, not to
grant rote permission to file an amicus curiae
brief; never to grant permission to file an
amicus curiae brief that essentially merely
duplicates the brief of one of the parties (for a
particularly egregious example of such an amicus
brief, see United States v. Gotti, 755 F. Supp.
1157 (E.D.N.Y. 1991)); to grant permission to
file an amicus brief only when (1) a party is not
adequately represented (usually, is not
represented at all); or (2) when the would-be
amicus has a direct interest in another case, and
the case in which he seeks permission to file an
amicus curiae brief may, by operation of stare
decisis or res judicata, materially affect that
interest; or (3) when the amicus has a unique
perspective, or information, that can assist the
court of appeals beyond what the parties are able
to do. Ryan v. CFTC, supra, and cases cited
there; see also United States v. Boeing Co., 73
F. Supp. 2d 897, 900 (S.D. Ohio 1999). The first
ground is not available to these requesters; the
appellant’s argument that no one can adequately
represent it within the page limits permitted by
this court is, of course, a reason against
granting the request--it is an end run around our
order denying permission to file an oversized
brief. The second ground is illustrated by the
two amicus curiae briefs that the motions judge
did allow to be filed on behalf of the
appellants, for both of those amici curiae are
organizations faced with the same kind of civil
RICO claims that formed the basis of the judgment
against the appellants. Finally, none of the
rejected briefs presents considerations of fact,
law, or policy overlooked by the appellants, who
have filed briefs totaling 104 pages. So ground
(3) is unavailable as well.
These requests for leave to file amicus curiae
briefs were therefore properly denied.