B.L.U.F.A look at FRAP as it applies to civil cases, most Second Amendment challenges are civil cases. Tied to games being played by Everytown in Antonyuk v. Hochul, 22-2972, (2d Cir.)

(1400 words)

There are rules for everything that the courts do. There are standard forms that are to be used. There is a general set of rules, written by congress, and each “court” can have additional, published rules.

When a party does something in a case, they must abide by the rules of that court.

FRAP starts with Rule 1, giving us the scope of the rules.

  1. Scope of Rules.
    1. These rules govern procedure in the United States courts of appeals.
    2. When these rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court.

Of course, since this is the government writing rules for the government, what they give with one hand, they remove with the other:

Rule 2. Suspension of Rules

On its own or a party’s motion, a court of appeals may—to expedite its decision or for other good cause—suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

Some of this makes perfect sense, and we see it in use all the time.

For example, we have this docket entry:

MOTION, to file oversized brief, on behalf of Appellant Matthew J. Doran and Steven A. Nigrelli in 22-2908

When looking at the actual motion, it starts with a standard form following FRAP Rule 27.

Rule 27(d) Form of Papers; Length Limits; Number of Copies describes exactly how the motion should look when submitted. If the required format is not used, the motion can (and will) be rejected.

Rule 27(d)(2)(A) sets the word limit of a motion to 5,200 words or 20 pages if typewritten or handwritten. The reply must not exceed 2,600 words or 10 pages.

As you might guess, I would have a hard time keeping to those limits. The Second Circuit court has set their own Local Rule, 28.1.1(c) for the reply to contain no more than 7,000 words.

Within the motion proper, the state is asking to raise the limit to from 7000 to 9000 words.

This is how it works. Most of the time, these motions to file extended briefs and replies are granted.

FRAP rules cover how to file different documents, when they are due, who can file them, and under what circumstances.

Rule 4. Appeal as of Right — When Taken, sets the time limits. The first step in an appeal is filing a “notice of appeal”. Rule 4(a)(1) sets the time limits on civil cases. The notice of appeal must happen within 30 days after entry of judgment or order, unless you are the United States. If you are the federal state, then you have 60 days.

There are motions that can be filed in the district court that extend the timeline. In addition, local rules can also extend the timeline.

Rule 4(5) allows the district court the power to extend the time to file for an extension.

Most of the motions on the Supreme Court’s Emergency Docket are requests for extension of time to file.

Again, local rules can change these.

Rule 5. covers begging the appeals court for permission to appeal.

Rule 8 covers Motion for Stay Pending Appeal.

This rule is interesting to us in terms of the gamesmanship that goes on. Consider Duncan v. Bonta, in Judge Benitez’s first judgment, he declared magazine bans unconstitutional. The state then filed a Motion to Stay Pending Appeal.

By Rule 8, the state must first file that motion with the district court. If the district court says “no” then the motion to stay pending appeal can be made to the appeals court. The party making the motion must first make the motion in the district court, unless the party can show that moving first in the district court would be impracticable

This allows the state to by-pass a judgment against them and jump directly to the appeals court.

Rule 10 is the Record on Appeal. The appeals court requires copies of all papers and exhibits filed in the district court, as well as any transcripts of proceedings. If you see requests for transcripts happening shortly after proceedings, you should guess that at least one of the parties is preparing to appeal.

Some of the games played are ways to shorten or length the time it takes before the appeal is heard and judgment returned.

Rule 25 if Filing and Service. FRAP 25(a)(1) requires all papers filed to be filed with the clerk of the court.

The side story on this is that a pair of lawyers hiked six miles into the woods to file a motion with a Supreme Court Justice. The Justice denied the motion and left it on a stump. After this, the rules were changed to require filing with the clerk of the court.

Rule 26 gives the rules for understanding what a time period means. As an example, there was a state that passed a 21-day waiting period. Everybody understood that to mean 3 weeks (21 / 7). When implemented, that turned into 4 weeks plus a day. Everybody “knew” that the time was in calendar days. As implemented, it was “work days” excluding Saturday, Sunday and legal holidays.

Rule 27 covers Motions.

Rule 28 covers Briefs. The briefs are in three parts, the appellant’s brief, the appellee’s Brief, and the appellant’s reply. Normally, I see these as “brief, response, and reply”

The Rule I’m interested in, this week, is Rule 28(j)

Citation of Supplemental Authorities. 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.

When the Eleventh Circuit Court found that 18, 19, and 20-year-olds were not part of The People, the state filed FRAP 28(j) letters in numerous cases. A circuit court judgment holds weight just about everywhere.

Of course, the state didn’t bother to file FRAP 28(j) letters when the Eleventh Circuit Court vacated the opinion and decided to hear the case en banc

Of important note is that The body of the letter must not exceed 350 words AND it must be a citation to an authority.

What it isn’t, is a “brief”. You don’t get to use an FRAP 28(j) to introduce new arguments.

Why is this important? Let’s take a look at this docket entry:

FRAP 28(j) LETTER, dated 10/12/2023, on behalf of Amicus Curiae Everytown for Gun Safety, RECEIVED

What new authoritative judgment are they citing in their 350-word letter?

Wait, this “letter” is 23 pages long!

Pursuant to F.R.A.P. 28(j), amicus curiae Everytown for Gun Safety writes to notify this Court of supplemental authority supporting the constitutionality of the restrictions on firearms in parks in New York’s Concealed Carry Improvement Act (“CCIA”).1 In its amicus brief, Everytown pointed to 66 individual historical restrictions on firearms in parks and a compilation of federal restrictions. See Dkt. 193 (No. 22-2908) at 26 n.21 (linking to website).2 Everytown has since identified 53 additional examples and sources. We attach the full list as Exhibit A, with newly identified restrictions and sources highlighted.

In other words, Everytown, one of the premier infringers in the country, is trying to sneak a briefing into the case while the court is deciding.

If the Second accepts this, it will be another tea-leaf to read. One that will not tell us anything we don’t know. The three – judge panel will rule against The People.

Not that it really matters, except as a delaying tactic, no matter how the panel rules, one of the parties will appeal. The Supreme Court won’t take the case if an en banc panel is not requested. The Second Circuit will grant the en banc hearing. And then wait another year before ruling against The People.

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