An Update on Federal Rule of Appellate Procedure 29(a)(2).

August 6, 2020

By Joshua C. Ashley

(Originally published by the Federation Flyer, Federation of Defense and Corporate Counsel, Summer 2020)

It has been roughly a year-and-a-half since the amendment of Federal Rule of Appellate Procedure 29(a)(2), which sets out when amicus briefs are permitted during merits briefing. Former Rule 29(a)(2) authorized amicus briefs only on leave of court or with the consent of all the parties. Amended Rule 29(a)(2), which went into effect December 1, 2018, authorizes amicus briefs on the same terms, except that the court may prohibit or strike an amicus brief “that would result in a judge’s disqualification.” Getting the consent of all the parties, then, no longer guarantees success. 

There has now been some time to see how amended Rule 29(a)(2) plays out in cases, so we thought it would be helpful to look at some examples.

Two come from the Eleventh Circuit. In 2019, multiple corporations, including Google, Apple, Airbnb, eBay, Deutsche Bank, and IBM, moved for leave to file an amicus brief supporting the appellee in Adams v. School Board of St. Johns County, No. 18-13592. The court denied the motion about two weeks later, quoting the disqualification language of Fed. R. App. P. 29(a)(2). Earlier this year, in another case, the Reporters Committee for Freedom of the Press and 33 media organizations moved for leave to file an amicus brief supporting the appellees in Parekh v. CBS Corp., No. 19-11794. The media organizations included the Associated Press, BuzzFeed, the New York Times, and Politico. About a month-and-a-half later, the court denied the motion, again quoting the disqualification language of Fed. R. App. P. 29(a)(2).

A third example, this one from the Second Circuit, was more tangled. In Federal Trade Commission v. Quincy Bioscience Holding Co., No. 17-3745, Public Citizen and other interest groups were granted leave to file an amicus brief supporting appellants. The court heard oral argument about a month later. A few days after hearing argument, the court vacated the order granting leave, and the next day the amicus brief (which had since been filed) was struck from the docket. The order vacating leave cited Fed. R. App. P. 29(a) (2) and Local Rule 29.1 without elaboration. A few days after that, the appellees moved to recuse the panel member whose potential conflict had triggered the striking of the amicus brief, arguing that it was too late to strike the brief. The panel addressed this issue in its summary order shortly thereafter. The court noted that Rule 29(a)(2) allows a panel to strike an amicus brief after it has been filed, and that “[t]he rule does not in text or spirit require an amicus brief to be stricken prior to oral argument.” 753 F. App’x 87, 90 (2d Cir. 2019). The court denied the motion to recuse, stating that the amicus brief had not been considered in the resolution of the case. Id.

There is a warning in these examples. The substantial cost of preparing and submitting an amicus brief can wind up being for naught if the brief would trigger disqualification. There is usually no telling in advance where the recusal points will lie. But certain precautions can be taken. The most obvious one is to avoid casting too wide a recusal net. The impact of an amicus motion joined by multiple massive corporations, such as the one in Adams, must be weighed against the potential for a judge’s connection to any of those entities. Nor, as Quincy Bioscience teaches, should one take an accepted amicus brief as safe from striking. The parties may hope that the panel members monitor recusal issues as amicus motions come in, or, if that’s too early (perhaps at that point the panel hasn’t been assigned), then at least once the case is assigned to the panel. But sometimes things slip through the cracks. In the meantime, both potential amici and the parties must navigate this issue with care and be aware of the issues.

Joshua C. Ashley, an associate at Friday, Eldredge & Clark concentrates his practice in appellate advocacy, commercial litigation, oil-and-gas litigation, and railroad litigation.