During my tenure as a judicial clerk on the U.S. Court of Appeals for the Ninth Circuit, I found the most misused element of appellate practice to be submissions of supplemental authority under Federal Rule of Appellate Procedure 28(j). The current version of that rule provides:
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.
Submissions under the rule are a unique tool available to appellate practitioners in all federal courts. Many state courts offer similar means by which practitioners can alert the court to supplemental authority after close of briefing. Deftly deployed, these letters have the eminent power to swing the pendulum of a case in a party’s favor. But more often, counsel’s fumbles with these letters end up annoying—or worse, alienating—the presiding panel.
I see 28(j) letters as akin to topical medication. Used properly, they are a valuable balm; used improperly, they risk irritation. In that vein, I offer three points of guidance for applying 28(j) letters to appellate practice.
1) Use as directed.
Most attorneys know to honor the Federal Rules and the Local Rules as gospel. Rule 28(j) is no exception. The rule clearly limits letters to 350 words, and to raising “pertinent and significant authorities” on a briefed issue. Yet court decisions are rife with frustration over counsel’s misuse of 28(j) letters to introduce new evidence or to raise unpreserved arguments. See, e.g., Feinberg v. Commissioner, 916 F.3d 1330, 1337 n.2 (10th Cir. 2019); Packsys v. Exportadora De Sal, S.A. de C.V., 899 F.3d 1081, 1090 n.5 (9th Cir. 2018). Indeed, the Fifth Circuit has even gone so far as to issue clarifying notes about submissions under the rule.
When considering a 28(j) submission, counsel should abide by the clear provisions of the rule. There remain, of course, unaddressed gray areas. For instance, may an attorney submit a letter citing an overlooked case that was in fact available at the time of briefing? Judges and courts differ on this issue. Generally, though, the appropriateness of a 28(j) letter in gray areas will hinge on whether the cited case is truly on point. Some courts are fine with counsel highlighting important, pertinent, and overlooked precedent; most do not take well, however, to letters citing previously available and tangentially related decisions as mere pretext to shoehorning unpreserved issues and facts.
2) Use immediately.
Rule 28(j) permits counsel to “promptly advise” the court of supplemental authorities. But attorneys often fail to timely monitor new precedent governing central issues in pending appeals. While I understood that counsel often lacked the time to regularly search for new precedent, there were few things more irritating to me as a law clerk than receiving—ten minutes prior to argument—28(j) letters citing authority that had been issued many months prior. An attorney engaging in such practice risks prejudicing her own position because judges typically assess cases long before the eve of oral argument. When a favorable precedent is issued, therefore, attorneys would do well to highlight it as soon as possible.
3) Use sparingly.
Most important of all, 28(j) letters are most effective when used sparingly. Such submissions are most necessary when citing newly issued precedent that governs at least one preserved issue in an appeal.
Beyond that—for instance, if the case is persuasive but unpublished or not binding; if the case was already published at the time of briefing; and if the case is not squarely on point—attorneys should exercise careful judgment. In those situations, relevant factors in determining whether to submit a letter include, for instance, the strength of other favorable precedent already invoked and the extent to which the supplemental authority is legally and factually similar to the pending case.
It bears noting here that judges and clerks dutifully survey the record and the law, and counsel are unlikely to fool the court into thinking that an irrelevant decision is anything but. Similarly, courts are unlikely to miss truly pertinent precedent already available at the close of briefing. And attorneys do themselves and their clients a disservice when they use 28(j) letters—or responses to 28(j) letters—as transparent, hamfisted attempts at additional briefing. Worst of all is the pair of adversaries who file four or five letters in succession, each refusing to allow the other the last word. In a flurried battle of 28(j) letters, there are no winners; only casualties.
When in doubt, restrict 28(j) submissions to truly new and pertinent precedent, and limit the content of those submissions to the cited case and its relevance to the (preserved) issues. The art of 28(j) lies in minimalism: the practitioners who reap the best 28(j) results are typically those who use the rule as directed, immediately, and sparingly.