15 F.4th 670
5th Cir.2021Background
- Three retired federal judges moved for leave to file an amicus curiae brief in an appeal involving Priscilla Lefebure and Samuel D’Aquilla; D’Aquilla opposed the motion.
- Defendant relied on two circuit precedents (D.C. Cir.’s Boumediene and 3d Cir.’s Thornburgh) to argue for categorical exclusion of such amicus briefs.
- The putative amici did not address those categorical precedents or the defendant’s contention that the brief should be disqualified because of questionable origins (a former law clerk with ties to a party).
- Judge James C. Ho granted the motion, holding the Fifth Circuit does not adopt the categorical bans urged by defendant and that motivations/origins concerns are matters for merits review, not preclusion.
- The opinion emphasizes Rule 29 discretion, warns against viewpoint discrimination, and endorses allowing amicus briefs unless they obviously fail Rule 29 criteria.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retired judges’ amicus briefs should be categorically excluded (Boumediene) | Allow amicus briefs by retired judges; no categorical bar | Apply Boumediene rule to deny leave for retired-judge amici | No categorical exclusion; leave granted |
| Whether amici must have a "legally cognizable interest" (Thornburgh) | Rule 29 requires stating interest and relevance, not legal stake | Amici lack cognizable interest; deny leave | Rejected categorical interest requirement; Rule 29 governs |
| Whether the amicus brief should be disqualified because of its origins/motivation | Origins do not warrant preclusion; address substance on merits | Alleged improper origins/bias justify denying leave | Origins are concerns for merits review, not exclusion |
| Whether permitting the brief risks viewpoint discrimination or requires restrictive policy | Grant unless brief clearly fails Rule 29; openness avoids suppressing useful input | Restrictive rules needed to avoid perceived bias and confusion | Use principled discretion; avoid categorical rules; grant leave |
Key Cases Cited
- Boumediene v. Bush, 476 F.3d 934 (D.C. Cir. 2006) (D.C. Circuit majority denying leave to retired-judge amici)
- Boumediene v. Bush, 553 U.S. 723 (2008) (Supreme Court later accepted amicus briefs of former judges)
- American College of Obstetricians & Gynecologists v. Thornburgh, 699 F.2d 644 (3d Cir. 1983) (Third Circuit denied leave where amici lacked a cognizable interest)
- Neonatology Associates, P.A. v. Comm’r of Internal Revenue, 293 F.3d 128 (3d Cir. 2002) (discussing discretion to permit amici and risk of viewpoint discrimination)
- In re Halo Wireless, Inc., 684 F.3d 581 (5th Cir. 2012) (Rule 29 leave is matter of judicial grace)
- United States v. Alvarez, 567 U.S. 709 (2012) (First Amendment principles resisting ad hoc suppression of speech)
- United States v. Gozes-Wagner, 977 F.3d 323 (5th Cir. 2020) (Fifth Circuit has accepted briefs from retired federal judges)
- Sun Coast Resources, Inc. v. Conrad, 956 F.3d 335 (5th Cir. 2020) (recognizing routine denial of oral argument when not helpful)
- In re Flynn, 961 F.3d 1215 (D.C. Cir. 2020) (D.C. Circuit listing amicus briefs by former judges)
- In re Leopold, 964 F.3d 1121 (D.C. Cir. 2020) (D.C. Circuit listing amicus briefs by former magistrate judges)