U.S. Supreme Court justices have mixed feelings about the increasing number of amicus curiae briefs filed with the court, many of which go unread. Justice Ruth Bader Ginsburg once said she has her clerks sort amicus briefs according to priority — and the “must read” pile is small.
But a brief filed in a case set for argument October 9 struck the fancy of enough justices that the court ordered lawyers for both sides to read it and be ready to discuss it at argument.
The order, which appears to be unprecedented, points the lawyers to a brief filed by Duke Law School professor Stephen Sachs in the case Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. The high court said in its October 1 order that the parties “should be prepared to address at oral argument the arguments raised” in his brief.
“It shows that amicus briefs are still garnering attention notwithstanding the unprecedented number of amicus briefs filed in recent years,” said Anth­ony Franze of Arnold & Porter, who has written extensively about amicus participation before the high court. “Last term alone amici filed more than 1,000 briefs, so it is impressive that the justices continue to wade through the mountain of briefs.”
Franze said the court will sometimes ask parties afterward to file supplemental briefs addressing an amicus argument. But he does not recall the court ever telling the parties in advance to be ready to discuss an amicus brief “on the front end.” The high court’s order, he said, is “probably more efficient” and represents “a more proactive approach to considering new arguments raised by amicus than I’ve seen in the past.”
The Atlantic Marine case poses a knotty civil procedure question that arises when a contract has a clause specifying that lawsuits be filed in a particular forum, but the plaintiff files suit somewhere else. One side says the defendant in such a case should file a motion under Federal Rule of Civil Procedure 12(b)(3) to declare the venue improper, while the other side says the defendant’s only course of action is to move to transfer the case.
But Sachs, a civil procedure scholar who clerked for Chief Justice John Roberts Jr. in 2009-2010, said in his brief that “both sides are wrong,” and suggested a third way: The defendant should use the forum-selection clause as an affirmative defense against liability and seek dismissal of the suit.
“The parties in this case defend two sides of a many-sided circuit split,” Sachs wrote. “This brief argues that a third view is correct.”
In an interview last week, Sachs said he decided to press the third way with the court after reading the initial briefing and seeing that neither side had addressed it. “I thought, this has to be wrong,” he said. Sachs likened his motivation to the famous cartoon in which a person is up late at night at the computer because “someone is wrong on the Internet.”
Sachs added, “I teach this stuff. I’ve always seen it as a responsibility of an academic to not just write a critical article afterward, but to provide information beforehand” so the court can consider all possible alternatives. The Sachs brief filed “in support of neither party” was authored together with Jeffrey Bucholtz and Daniel Epps of King & Spalding.
Sachs was so convinced that the court should consider the third option that he also asked the court for argument time, a long shot at best. The court almost never allows amici to argue, unless they represent federal, state or local government entities.
In his motion asking to appear before the court, Sachs said he wanted to present “a crucial issue that the parties would otherwise elide.” He noted that the U.S. Court of Appeals for the First Circuit had adopted the position he was espousing in Rivera v. Centro Médico de Turabo, a 2009 case. Lawyers for both sides opposed his motion.
W. Scott Hastings of Locke Lord’s Dal­las office, representing Atlantic Marine, asserted that Sachs’ alternative had not been addressed by the courts below. “Accordingly, that issue is not before the court, and should be reserved for a future day,” Hastings wrote.
On the other side, William Allens­worth of Allensworth & Porter in Austin, Texas, said Sachs’ participation “would serve only to distract the court” with a “novel approach” that is not properly before the court.
Allensworth represents J-Crew Man­agement Inc., Atlantic Marine’s adversary in the contract dispute. Atlantic, a federal contractor based in Virginia Beach, Va., hired J-Crew to build a day-care center at Fort Hood in Texas. A disagreement over payments prompted J-Crew to file a suit in the federal court for the Western District of Texas, even though their contract specified that disputes be litigated in state or federal court in Norfolk, Va., near Atlantic’s headquarters.
After Atlantic’s motion to transfer the case to Norfolk was denied, the company filed a writ of mandamus, which names the Texas federal court as defendant.
The Supreme Court’s order denied Sachs’ request for argument time, but telling the parties to be prepared to discuss his brief is the next best thing. “I’m just very gratified that the court thought my brief was worth addressing,” Sachs said.
Contact Tony Mauro at email@example.com.