When Is an “Amicus Curiae” Not a “Friend?”

Most experienced appellate counsel have noticed an increase in the filings of amicus curiae (“Friend of the Court”) briefs in recent years. That in and of itself is not a remarkable occurrence. What is remarkable is the fact that vast numbers of those briefs are increasingly being used as pure “lobbying” vehicles in favor of one party or another. And when federal appellate judges start either criticizing or rejecting amicus curiae briefs, it is perhaps time to look at all of this a bit more closely.

Court rules govern virtually everything in appellate practice and amicus curiae briefs are no exception. Consider Rule 37(1), of the Supreme Court of the United States [SCOTUS] on this point:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

There we see that SCOTUS is looking for “relevant matter not already brought to its attention” as the guiding light for what that Court is looking for in an amicus curiae brief.

Federal Rule of Appellate Procedure [FRAP], Rule 29(b), is a bit more specific, requiring the amicus party to satisfy a two-prong test, to wit:

  (1) the movant’s interest; and
  (2) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

Of course, neither prong is very difficult to satisfy in the average appeal, especially in criminal cases.

However, the U.S. Court of Appeals for the Armed Forces [CAAF] – for reasons unknown –  utilizes a totally different approach to briefs of amici curiae. There is no specific “test” or requirements as in SCOTUS Rule 37(1), or FRAP Rule 29(b). Indeed, the suggestion is just the opposite, viz., it is more or less assumed that an amicus curiae brief will generally be “in support of a party . . . .” or in support of “neither party.” CAAF Rule 26(b). Hence there is no suggestion that an amicus bring “relevant matter” not otherwise brought to the Court’s attention or even explain why the amicus curiae brief contains matters “relevant to the disposition of the case.”

And, there lies the issue.

UNITED STATES v. SCHLOFF

Currently pending before the CAAF is the case of United States v. Schloff. On the merits, the issues involve a question of statutory interpretation of the scope of what constitutes a “touching” for a charge of “abusive sexual contact” under Article 120(g), UCMJ, 10 U.S.C. § 920(g). What is interesting however, is that after the government filed their Brief at CAAF, the Special Victim Counsel [SVC] filed an amicus curiae brief as well, not “in support of” the government, but simply “ON BEHALF OF VICTIM.” (sic). Nowhere does the SVC’s brief state:

 • What “relevant matter” it is bringing before the court “not already brought to its attention by the parties . . . .” [SCOTUS Rule 37(1)];
 • What the SVC’s “interest” is in the case [which may be inferred, but still is not specified]; or
 • “[T]he reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” [FRAP, Rule 29(b)].

Comparing the government’s brief with that of the SVC’s amicus curiae brief, the SVC brief essentially tracks and mirrors both the arguments and authorities raised by the government’s brief, with minor stylistic differences. The question then becomes, of what value to the CAAF is such an amicus brief when all it really does is to echo the government’s brief and lobby the Court to deny relief to the appellant via the SVC?

SOME THOUGHTS ON THE AMICUS CURIAE PROCESS

Modern appellate practice, until recently, has seen “friends of the court” briefs used in a number of constructive ways. For example, presenting historical data on the issues before the court; social science research and data that may be relevant to a particular disposition; adverse or unintended consequences of adopting a position urged by a party; flushing out complex issues in arcane areas of the law, e.g., admiralty law and patent law; and so forth.

Looking at Schloff, under CAAF’s ambiguous and broad amicus curiae rule, the SVC cannot be faulted for seeking amicus status. Yet, in United States v. Dearmond, 65 M.J. 423 (CAAF), rev. denied, 65 M.J. 424 (CAAF 2007), the Court without explanation denied amicus curiae status to a “pro bono victim advocate counsel.”  And in United States v. Green, 68 M.J. 205 (CAAF), aff'd 68 M.J. 360 (CAAF 2010), a majority of the CAAF denied an amicus curiae request over a dissent by Judge Baker and then C.J. Effron. Their dissent is instructive, which reads in relevant part:

Our rules do not preclude such a filing, nor indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed. As a result, I would grant the motion; the court could then determine what consideration and weight, if any, to give to the filing.

And as the dissent noted:

Airman Basic Witt, an appellant in the Court of Criminal Appeals, requests the opportunity to file an amicus brief to inform this court as to how the issue(s) presented in the instant case will, in his view, impact the broader and uniform application of the law, including in his case.

Witt certainly satisfied the requirements of FRAP Rule 29(b) – at least in the minds of the dissenting judges.

Some years ago, Judge Posner of the Seventh Circuit Court of Appeals, authored a short opinion on when an amicus curiae brief was appropriate and when it should be denied. In Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 (7th Cir. 1997), in his capacity as Chief Judge, he first made the following observations and ultimately denied the amicus request:

The tendency of many judges of this court, including myself, has been to grant motions for leave to file amicus curiae briefs without careful consideration of “the reasons why a brief of an amicus curiae is desirable,” although the rule makes this a required part of the motion. After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion. Id. at 1063.

He continued as follows:

The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants' briefs, in effect merely extending the length of the litigant's brief. Such amicus briefs should not be allowed. They are an abuse. The term “amicus curiae” means friend of the court, not friend of a party. Id. [Emphasis added, citation omitted]  * * * * *    We are not helped by an amicus curiae's expression of a “strongly held view” about the weight of the evidence . . . but by being pointed to considerations germane to our decision of the appeal that the parties for one reason or another have not brought to our attention. Id. at 1064 [internal citation omitted].

See also United States v. State of Michigan, 940 F.2d 143, 163 et seq. (6th Cir. 1991) [exhaustive discussion of the role and appropriateness of amici curiae curiae briefs]; and Anderson, Frenemies of the Court: The Many Faces of  Amicus Curiae, 49 U. Richmond L. Rev. (forthcoming 2015), available here:

Returning to Schloff, the SVC can be faulted in this writer’s opinion, for not demonstrating why the “victim” had a bona fide interest in what was by everyone’s admission, a pure question of law. Especially when the SVC’s brief is nothing more that a regurgitation of the government’s official brief. This should not be considered an ad hominem attack on the SVC because it is not. Rather, it is a critique of CAAF’s dysfunctional amicus curiae rule that encourages such briefs without aiding the Court (or the parties) by bringing “relevant matter” to the Court’s attention not addressed by the parties.

While appellate courts’ amicus rules should be interpreted liberally, they likewise need to ensure that such briefs are more than just “friends of a party” pleadings, duplicating what is already before the court. Judge Posner’s analysis is apt and persuasive and is consistent with SCOTUS Rule 37(1). CAAF’s Rules Committee should consider revising CAAF Rule 26(b), so that it is harmonious with FRAP Rule 29(b).