Greene Espel attorneys Caitlinrose Fisher and Virginia McCalmont recently published an article in the Eighth Circuit Bar Association’s newsletter titled One Strike and Your Amicus Is Out: The uncertainty of FRAP 29’s recent amendment. The article analyzed the implications of the United States Court of Appeals for the Fifth Circuit’s decision to strike an amicus brief in State of Texas v. United States of America, a high-profile case concerning the validity of the Affordable Care Act. In that case, the Fifth Circuit struck an amicus brief filed by a Gibson Dunn attorney and former Acting Associate Attorney General, Stuary Delery, invoking the newly-amended Federal Rule of Civil Procedure 29.

Here are 3 takeaways from the article:

  1. As of December 2018, federal appellate courts “may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.” Fed. R. Civ. P. 29(a)(2). As the Fifth Circuit’s order in State of Texas v. United States of America demonstrates, appellate courts may invoke this rule after briefs have been filed, without providing the factual basis for the strike, and even if the disqualification likely relates to a judge that is not scheduled to hear the given case.

  1. Amended Rule 29 does not address the standards for when an amicus brief requires a judge’s disqualification. Those standards, codified in 28 U.S.C. § 455, broadly require disqualification in “any proceeding in which [the judge’s] impartiality might reasonably be questioned,” among other circumstances. Quite simply, it will in many instances be impossible to determine before filing an amicus brief whether an appellate judge may be disqualified from considering the arguments of a given amici.

  1. Given Rule 29’s broad authority to strike briefs, and the difficulty of determining whether and when an appellate court will strike an amicus brief, attorneys preparing amicus briefs in federal appellate proceedings should advise their clients about Rule 29 and the possibility that any amicus brief will be struck, long after it has been prepared and filed. Attorneys should question whether counsel, a law firm, or the amici itself is likely to give rise a potential judicial disqualification. Attorneys should also consider developing contingency plans with clients in the case of a strike – such as having different counsel file an amended amicus brief.

Caitlinrose Fisher practices Government and Constitutional Litigation, bringing an in-depth knowledge of and experience with the constitutionality of state and federal laws, and the federal appeals process having clerked for Judge Diana Murphy of the United States Court of Appeals for the Eighth Circuit Court of Appeals and Chief Judge Sidney R. Thomas of the United States Court of Appeals for the Ninth Circuit.

Virginia McCalmont helps public and private-sector clients craft effective strategies that resolve disputes. To do so, she draws on her extensive experience with the court system through a federal appellate clerkship with Judge Diana Murphy of the United States Court of Appeals for the Eighth Circuit and a federal district court clerkship with Judge Janet Hall of the United States District Court for the District of Connecticut.