Amicus Curiae in Federal Trial Courts

Introduction

Circulation of Judge Lee P. Rudofsky’s order inviting interested nonparties to consider filing briefs of amicus curiae in his court in the Eastern District of Arkansas invites a fresh look at the role of such filings in federal trial courts in Arkansas and beyond. Judge Rudofsky issued his order regarding amicus briefs on March 21, 2023, indicating that the invitation to file amicus briefs would be extended to all of his cases.1 The judge expressed his views that amicus briefs could have “considerably more impact” at the district court level than the appellate level, and that “a healthy number” of district court cases warrant amicus briefing.2

Amicus Briefs in Arkansas District Courts

Historically,3 amicus briefs have been filed in Arkansas district courts when certain cases raise constitutional or statutory issues,4 or questions of broad public interest. Some parties have been granted leave to submit amicus briefs after their attempts to intervene have failed.5 In other cases, Arkansas district courts have sought or permitted input from governmental entities to assist in resolving disputes between parties.6 Some briefs of amicus curiae seek to aid the court by providing input from experts in a field at issue in the litigation.7 In a case involving requests for release of the president’s videotaped deposition in a criminal trial, Judge George Howard, Jr., actually invited representatives of the news media to file an amicus curiae brief, “in recognition of the press’ role ‘in preserving and perpetuating democracy . . . over the centuries.’”8

The district court even has discretionary authority to appoint amicus curiae in appropriate circumstances.9 District courts commonly permit amicus curiae participation when the nonparty will or may be affected by the outcome of the litigation.10 In a 1953 case, Judge John E. Miller found the interests of individual milk haulers so compelling that he allowed them to participate in trial, make arguments, and file briefs as amicus curiae, although he denied their motion to intervene.11

The United States appeared as amicus curiae in a case involving both constitutional issues and broad public interest in the desegregation of Little Rock Central High School.12 The American Civil Liberties Union, which is often a party to constitutional litigation, appeared as amicus curiae in an action challenging Arkansas law allowing creation and operation of suburban and rural improvement districts.13

Logistics of filing

The United States Advisory Committee on Civil Rules considered but did not adopt a March 2021 proposal for an amendment to the Federal Rules of Civil Procedure to add a rule providing for amicus briefs in district courts.14 Even so, there is a long history of district courts exercising inherent authority to accept filings from friends of the court.15

In the absence of a local rule (or a standing order like Judge Rudofsky’s), some commentators recommend that those who wish to file amicus briefs adhere to the procedures set forth in Rule 29 of the Federal Rules of Appellate Procedure.16 The federal appellate rule provides that nonparties other than federal or state officers and agencies must file a motion for leave to file, stating the movant’s interest, the reasons why an amicus brief is desirable, and why the matters asserted are relevant to the disposition of the case.17 The appellate rule also requires the nonparty to state whether counsel for a party authored the amicus brief in whole or in part, whether a party or its counsel contributed money to fund the submission of the amicus brief, and whether a person other than the amicus curiae, its members, or its counsel contributed money intended to fund the preparation or submission of the amicus brief.18 Under the federal appellate rule, the motion must be accompanied by the proposed brief of amicus curiae.19

A movant seeking to file an amicus brief in district court is more likely to obtain leave to file if the motion demonstrates that the brief will “present ideas, arguments, theories, insights, facts, or data that are not found in the parties’ briefs.”20 The movant should show it has “unique information or perspective [that] can help the Court beyond the help that the lawyers for the parties are able to provide.”21 Upon determining that these criteria are met, the district court has “broad discretion to determine the fact, extent, and manner of participation by the amicus.”22

(While the Arkansas Supreme Court has consistently noted that amicus briefs in that venue must base their arguments on facts shown at trial and points raised by the parties,23 nearly 83% of federal district judges who responded to a survey said briefs of amicus curiae may be useful to offer legal arguments that are absent from the parties’ briefs.24 Nevertheless, amicus curiae in federal court must strike a delicate balance—they should not “hijack” the litigation by straying too far from the parties’ agenda, but the amicus brief also should not “merely duplicate the information presented by the parties.”25)

Noting the importance of careful timing, some commentators recommend seeking leave to file an amicus brief after the party the brief is supporting has filed its principal brief, but in advance of the opposing party’s responsive or reply brief.26 It is also recommended that the amicus brief be “materially shorter” than the briefs of the parties.27 Notably, the federal rule applicable to amicus briefs on appeal provides that such briefs be filed no later than seven days after the brief of the party that the amicus supports.28 That rule also dictates that the amicus brief must be no longer than half the limit on pages, words, or lines applicable to the principal briefs of the parties.29

Conclusion

As Judge Rudofsky noted, the opportunity to file a brief of amicus curiae in a district court case is also a chance to impact the resolution of the litigation and advance the interests of nonparties. There is a long history of such filings in federal court in Arkansas. In an appropriate case, counsel should consider seeking leave to file a brief of amicus curiae.

Endnotes:

1. See Huck v. Dillon Transp. LLC, No. 4:22cv-00546 LPR, Order (E.D. Ark. March 21, 2023). The standing order also provides that the principal drafter of an amicus brief on a dispositive motion or as to preliminary injunctive relief will be granted at least 10 minutes of oral argument, so long as that person has been a lawyer for fewer than seven years.

2. Id. For an analysis of the utility of amicus briefs in federal courts generally, see Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 Rev. Litig. 669 (2008).

3. In an Arkansas district court case in the early twentieth century, the United States appeared as an amicus curiae to brief the constitutionality of a federal law on the liability of rail carriers to their employees. Watson v. St. Louis I.M. & S. Ry. Co., 169 F. 942, 943 (E.D. Ark. 1909). Later, in a 1950 quiet title action, counsel before the district court were identified as representing unspecified amicus curiae. Banks v. Chicago Mill & Lbr Co., 92 F. Supp. 232 (E.D. Ark. 1950). (However, in a 2003 first amendment lawsuit concerning access to the Harry Potter series of books in a school district’s libraries, Judge Jimm Larry Hendren noted the “unusual nature” of the attempted amicus curiae filing in district court, and decided not to consider the amicus brief. Counts v. Cedarville School Dist., 295 F. Supp. 2d 996, 998 (W.D. Ark. 2003). But in so doing, Judge Hendren acknowledged that amicus briefs had been received in matters pending in district courts. Id.)

4. In Purdom v. Morgan, 3:16-CV-3072, 2017 WL 700138 (W.D. Ark. Feb. 22, 2017), a challenge to the constitutionality of an Arkansas statute, the Arkansas Attorney General filed a brief as amicus curiae to opine on the effect and effective date of a statute amending the Arkansas law.

5. See, e.g., Edwards v. Beck, No. 4:13CV00224 SWW, 2013 WL 12146739 (E.D. Ark. 2013) (denying motion to intervene in abortion rights case, but granting leave to file an amicus brief on permanent injunction issue); Arkansas Power & Light Co. v. Arkansas Public Service Comm’n, 107 F.R.D. 335, 343 (E.D. Ark. 1985) (motions to intervene were denied but court would not foreclose parties from attending proceedings and seeking leave to file amicus briefs); Rock v. Bryant, 459 F. Supp. 64, 68 (E.D. Ark. 1978) (motion of former candidate to intervene in suit challenging state election law was denied, but his brief was treated as an amicus curiae brief). Cf. United States ex rel. Murphy v. Baptist Medcare, Inc., No. 4:02-CV-440 (RSW), 2005 WL 8154773 (E.D. Ark. Oct. 27, 2005) (United States declined to intervene, but submitted brief as amicus curiae in opposition to defendant’s motion for summary judgment).

6. For instance, Chief Judge J. Smith Henley granted the Equal Employment Opportunity Commission leave to state its views concerning the possibility of illegal discrimination in a suit against the Arkansas labor commissioner challenging a state statute regarding overtime pay for women. Potlatch Forests, Inc. v. Hays, 318 F. Supp. 1368, 1373 (E.D. Ark. 1970). See also Work v. Tyson Foods, Inc., 720 F. Supp. 132 (W.D. Ark. 1989) (in Clean Water Act case, court acknowledged amicus curiae brief from attorney for Arkansas Department of Pollution, Control & Ecology); In re State of Missouri, 8 B.R. 974 n.2 (E.D. Ark. 1980) (district court received amicus curiae briefs from Attorneys General of Texas and Iowa).

7. See, e.g., Brandt v. Rutledge, 551 F. Supp. 3d 882, 890 & n.3 (E.D. Ark. 2021) (noting opinions of medical organizations regarding effective treatment for gender dysphoria).

8. United States v. McDougal, 940 F. Supp. 224, 225 (E.D. Ark. 1996) (quoted case omitted).

9. Lee v. Miller Cty, No. 4:08-cv-04102, 2009 WL 1537785 (W.D. Ark. June 1, 2009) (acknowledging discretionary authority but declining to appoint amicus curiae).

10. See, e.g., United States v. Tyson’s Poultry, Inc., 216 F. Supp. 53 (W.D. Ark. 1963) (appearance by Arkansas Poultry Federation in action for enforcement of subpoenas issued to alleged live poultry dealers); Echubby Lake Hunting Club, LLC v. United States, No. 5:03CV00285 JMM, 2005 WL 8164449 (E.D. Ark. June 6, 2005) (Arkansas Farm Bureau Federation filed amicus curiae brief).

11. Durkin v. Pet Milk Co., 14 F.R.D. 374, 381 (W.D. Ark. 1953). See also Wessel v. Pryor, 461 F. Supp. 1144, 1145 (E.D. Ark. 1978) (In a case involving a constitutional challenge to Arkansas’ civil commitment procedures, Judge G. Thomas Eisele allowed amicus curiae participation on behalf of state chancery judges in post-consent decree conferences.).

12. Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark. 1957).

13. Clem v. Cooper Comm., Inc., 344 F. Supp. 579 (E.D. Ark. 1972).

14. https://www.uscourts.gov/rules-policies/ records-rules-committees/rules-suggestions.

15. See generally A. Petry, Annotation, Right to file briefs in trial court, 86 A.L.R.2d 1233

(1962).

16. E.g., posting of Josephine Mason Patrick. Amicus Briefs: Friend of the District Court, Too? https://www.appellateinsight. com/2019/09/10/amicus-briefs-2/.

17. Fed. R. App. P. 29(a)(3). The motion for leave to file procedure was followed by the City of Little Rock in obtaining leave to appear as amicus curiae in Advanced Comm’ns Corp. v. MCI Comm’ns Corp., 101 F. Supp. 2d 1154 (E.D. Ark. 2000).

18. Fed. R. App. P. 29(a)(4)(E).

19. Fed. R. App. P. 29(a)(3).

20. Washington Alliance of Technology Workers v. United States Dep’t of Homeland Security, 518 F. Supp. 3d 448, 453 & n.2 (D.D.C. 2021) (denying motion to strike amicus brief) (quoted case omitted).

21. Id. (quoting Hard Drive Prods, Inc. v. Does 1-1,495, 892 F. Supp. 2d 334, 334, 337 (D.D.C. 2012)) (internal quotation marks omitted).

22. Id. (internal quotation marks omitted).

23. E.g., Baptist Health v. Murphy, 358 Ark. 341, 189 S.W.3d 438 (2004); Ark. S. Ct. R. 4-6(a) (“The briefs shall be limited to matters in the record on appeal and shall address only the issues raised by the parties at the appellate level.”).

24. Simard, supra note 2, at 692.

25. Id.

26. Akiva Shapiro, Lee R. Crain, Amanda L. Lesavage, Tips for District Court Amicus Brief Success, 264 N.Y. L. J. 122 (2020), published at https://www.gibsondunn.com/ wp-content/uploads/2020/12/ShapiroCrain-LeSavage-Tips-for-District-CourtAmicus-Brief-Success-New-York-LawJournal-12-23-2020.pdf.

27. Id.

28. Fed. R. App. P. 29(a)(6).

29. Compare Fed. R. App. P. 29(a)(5) (limiting amicus briefs to one-half the length of principal briefs) with Fed. R. App. P. 32(a)(7) (limiting principal briefs of appellate parties to 30 pages, or 13,000 words, or 1,300 lines of text when printed in a monospaced face). ■

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Little Rock Marriott | October 5, 2023

In a time of great political polarization, fast-paced and underexamined “news,” and community division caused by the stresses of a post-pandemic world and ongoing racial injustice, it is crucial that we examine the institutions that have been sacred to us. Join us as we talk with lawyers, judges, journalists, and social scientists to understand the modern jury system in today’s society.

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Hon. Kristine G. Baker, U.S. District Judge, Eastern District of Arkansas

Hon. Christopher R. Cooper, U.S. District Judge, District of Columbia

Benjamin L. Crump, American Civil Rights Attorney

Prof. Thaddeus Hoffmeister, University of Dayton

Dahlia Lithwick, Author, Journalist

Hon. Lavenski R. Smith, Chief Judge of the United States Court of Appeals for the Eighth Circuit

Andrew Walker, Cogent Legal

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By Brett D. Watson