The Importance of Being Earnest

Writing an effective supplemental authorities letter

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Illustration ©Getty / Mack15
BY LAUREN E. SANCKEN

It’s 4 p.m. on Friday, a week after you’ve submitted your appellate brief to the Ninth Circuit, when you get an alert from your legal research database that the Second Circuit has just decided a case on a similar, novel issue. You’re intrigued, so you read the opinion and realize it’s a great persuasive case for your client. What should you do?

Most practitioners would agree that the appropriate next step is to file a notice of supplemental authorities with the Ninth Circuit under Federal Rule of Appellate Procedure 28(j). The rule states:

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

On its face, Rule 28(j) does not ask a lot of practitioners: merely that they identify “pertinent and significant” authorities and “promptly” advise the court of the supplemental authorities’ relevance to the case in “350 words.” But it also doesn’t give a lot of guidance. What is “pertinent and significant”? When is “promptly”? And what can you say in a mere 350 words? Effective appellate advocates consider these questions and walk a careful line to follow the letter and the spirit of the rule. To ensure your letters help your case, here are a few practice tips for crafting effective ones.11 Washington has a similar Rule of Appellate Procedure, RAP 10.8, but unlike the federal rule, it specifies that the statement “should not contain argument” and does not have a word or page limit. Like Rule 28(j) letters, Washington letters should explain the relevance of the new authority to the pending case, typically by quoting the case directly, avoiding introducing new argument, and being concise. Letters that substantially differ from these guidelines have been rejected. See, e.g., Frank v. Fischer, 46 Wn. App. 133, 730 P.2d 70 (1986), aff’d, 108 Wn.2d 468, 739 P.2d 1145 (1987) (disregarding new argument raised in additional authorities letter); Brewer v. Fibreboard Corp., 127 Wn.2d 512, 531, 901 P.2d 297 (1995) (rejecting 368-page additional authorities’ letter and any interpretation of RAP 10.8 that would allow it).

USE SUPPLEMENTAL AUTHORITY LETTERS TO PROVIDE ‘PERTINENT AND SIGNIFICANT’ AUTHORITIES

Supplemental authority should be “pertinent and significant,” meaning the new legal authority should be directly relevant to an issue raised on appeal and should have the potential to affect the outcome of the case. One commentator says “only cases clearly supporting principal arguments of the brief on similar facts, or cases on point as to which no prior authority has been found, should be submitted.”2 2See Bennett Evan Cooper, “Notices of Supplemental Authority,” Fed. Appellate Practice: Ninth Circuit Ch. 14:33 (2020). An uncontroversial and wise purpose for a Rule 28(j) letter is to alert the court to newly decided authorities between briefing and oral argument. See, e.g., United States v. Sterner, 23 F.3d 250, 252 n.3 (9th Cir. 1994) (supplemental authorities letter notified court that the United States Supreme Court issued a decision changing the law on the pending issue).

Lawyers misuse Rule 28(j) letters when the purpose is to raise new arguments, point out new evidence, or bring in cases that should have been discovered during the initial rounds of briefing. These types of misuse frustrate a presiding panel, and courts have no qualms striking letters submitted for these purposes. See, e.g., Confederated Tribes of Umatilla Indian Rsrv. v. Bonneville Power Admin., 342 F.3d 924, 933 (9th Cir. 2003) (rejecting argument raised for first time in Rule 28(j) letter); Manley v. Rowley, 847 F.3d 705, 710, n.2 (9th Cir. 2017) (striking Rule 28(j) letter that “offers no new authorities, but rather seeks to supplement the record with new evidence”).

Rule 28(j) does not require that the supplemental authority be recently decided, only that it be recently discovered by counsel. Still, citing a case that should have been discovered earlier is not an ideal use for a Rule 28(j) letter and courts routinely reject these letters. See, e.g., Doe v. Att’y Gen. of the United States, 956 F.3d 135, 149 (3d Cir. 2020) (waiving argument based on readily available case cited for the first time in a Rule 28(j) letter). If a case should have been cited in opening briefing but has been overlooked by counsel, chances are a judicial clerk will find it, so include the case in a Rule 28(j) letter as soon as possible and offer a humble apology.

‘PROMPTLY ADVISE’ THE COURT OF THE AUTHORITIES

“Rule 28(j) is designed for the diligent.”33 David F. Herr, “Informing the Court about Supplemental Authorities,” Federal Appeals Jurisdiction and Practice Ch. 12:21 (2021). The Ninth Circuit Advisory Committee advises counsel to submit Rule 28(j) letters as soon as possible, and “at least 7 days in advance of any scheduled oral argument.” Appellate law clerks typically start researching and writing bench memoranda shortly after the parties have filed their briefs. It’s best to submit supplemental authorities while there is time for them to be considered during this process.

Filing authorities “promptly” is easy to do with access to various alerts and notices from court and legal research databases.44 For how to create an alert on a variety of legal research databases, please see “Creating Database Alerts,” University of Washington Gallagher Law Library Guides, https://guides.lib.uw.edu/law/staying-current/alerts. Once a search is set to look for Supreme Court and relevant circuit decisions on a particular topic, practitioners can passively stay abreast of any changes in the relevant law. Oral argument is generally scheduled with at least one month’s notice, and that notice is a good time to start searching for any supplemental authorities.

LESS IS MORE: MAKE THE MOST OF 350 WORDS

Prior to 2002, Rule 28(j) required supplemental authority letters to be submitted “without argument.” The Rule was amended to remove that restriction and replace it with a strict 350-word limit, including footnotes. Perhaps the Advisory Committee was calling it like it is—the act of submitting a Rule 28(j) letter is, effectively, argument—because selecting a case to identify to the court and explaining its relevance in the best light is the bread and butter of persuasion.

Even without the prohibition of argument, seasoned practitioners advise that Rule 28(j) letters should be written more like a law review article with a neutral tone than an advocacy pitch. By not (explicitly) arguing the new authority, the case speaks for itself, and its citation is “more like an assist to the court rather than another bite at the argument apple.”55 Professor Jeff Feldman, University of Washington School of Law, email with the author on April 11, 2021. Put simply, a Rule 28(j) letter should not be a supplemental brief.

Effective letters favorably describe the holding of a supplemental case without explicit argument. Take, for instance, the following description of a Fifth Circuit decision in a Rule 28(j) letter filed by petitioners in State of West Virginia v. EPA, No. 15-1363 (D.C. Cir. 2016). Petitioners challenged the authority of the United States Environmental Protection Agency (EPA) to regulate states under the Clean Power Plan.

Staying EPA’s disapproval of certain “state implementation plans” under the Clean Air Act, the Fifth Circuit agreed that EPA failed to properly consider concerns about grid reliability when it imposed emission controls on power plants. The court concluded that “EPA assertions about grid reliability” were owed “diminished” deference because “EPA has no expertise on grid reliability.”

By selectively quoting favorable parts of the decision, the letter lets the Fifth Circuit make counsel’s argument. The letter goes on to explain why the decision is “pertinent and significant” by linking it to the party’s prior briefing:

First, it supports Petitioners’ argument that the Rule requires clear congressional authorization because, inter alia, EPA has no expertise in managing electric generation. Pet. Core Br. 32-36. As Petitioners have explained, that expertise lies with state utilities regulators and FERC. Id. At 38.

This letter connects the new, favorable decision to Petitioner’s prior arguments in a direct and persuasive manner.

EPA’s response to this letter follows the same principles of persuasion: It characterizes the new authority favorably for its side and distinguishes it from the pending case while relating it to prior briefing.

Petitioners cite a Fifth Circuit decision staying an EPA rule promulgating federal plans for Oklahoma and Texas to control regional haze. Texas v. EPA, No. 16-60118, 2016 WL 3878180 (5th Cir. July 15, 2016). This ruling has minimal relevance because it is not a final decision on the merits, id. at ∗12 n.29, and concerns a different regulatory program and distinct administrative record.

Contrary to Petitioners’ suggestion, Texas fully supports EPA’s position that its statutory interpretations are reviewed under the familiar Chevron standard. See EPA Br. 40-44. As the Fifth Circuit stated, judicial review “is deferential to EPA’s interpretation of the Clean Air Act if the statute is susceptible to multiple reasonable interpretations.” 2016 WL 3878180, at ∗12 (citing Chevron).

The D.C. Circuit surely read Texas and reached its own conclusion, but each party effectively directed the court’s attention to a favorable aspect of the case without turning the citation into hyperbolic argument.

To write an effective Rule 28(j) letter, include new cases that are likely to be influential to the pending decision, avoid bringing new arguments, and file the letter promptly, while the court’s law clerks are still digesting the case and preparing bench memoranda. Use the letters as an opportunity to persuade by favorably characterizing the new case and clearly linking that case to existing arguments.

Above all, be earnest. Rule 28(j) letters are designed to help the court decide cases with the best available authorities. A court is likely to see through anything else.

. . .

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About the author

Lauren E. Sancken is an associate teaching professor and the co-director of the Legal Analysis, Research, and Writing Program at the University of Washington School of Law.

NOTES

1. Washington has a similar Rule of Appellate Procedure, RAP 10.8, but unlike the federal rule, it specifies that the statement “should not contain argument” and does not have a word or page limit. Like Rule 28(j) letters, Washington letters should explain the relevance of the new authority to the pending case, typically by quoting the case directly, avoiding introducing new argument, and being concise. Letters that substantially differ from these guidelines have been rejected. See, e.g., Frank v. Fischer, 46 Wn. App. 133, 730 P.2d 70 (1986), aff’d, 108 Wn.2d 468, 739 P.2d 1145 (1987) (disregarding new argument raised in additional authorities letter); Brewer v. Fibreboard Corp., 127 Wn.2d 512, 531, 901 P.2d 297 (1995) (rejecting 368-page additional authorities’ letter and any interpretation of RAP 10.8 that would allow it).

2. See Bennett Evan Cooper, “Notices of Supplemental Authority,” Fed. Appellate Practice: Ninth Circuit Ch. 14:33 (2020).

3. David F. Herr, “Informing the Court about Supplemental Authorities,” Federal Appeals Jurisdiction and Practice Ch. 12:21 (2021).

4. For how to create an alert on a variety of legal research databases, please see “Creating Database Alerts,” University of Washington Gallagher Law Library Guides, https://guides.lib.uw.edu/law/staying-current/alerts.

5. Professor Jeff Feldman, University of Washington School of Law, email with the author on April 11, 2021.

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