Amicus briefs are often thought of as limited to appellate courts. However, they can be useful in federal district court, too. District courts have inherent authority to allow amici curiae to participate in briefing. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005).
Benefits to Amici in District Court
Potential amici are likely to be interested in the broader impact on the law, especially when the case involves novel legal questions or pertains to an issue of public interest. Paul M. Collins, Jr., Who Participates as Amici Curiae in the U.S. Courts of Appeals?, 94 Judicature 128, 134 (2010). Amici may provide new perspectives and educate the court about the broader consequences its ruling may have.
For example, a group of amici weighed in on the district court case involving the termination of the Deferred Action for Childhood Arrivals (DACA) program. Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018) (Doc. 137-3). The amici were over a hundred tech companies, including Facebook and Microsoft, whose employees and businesses would be affected if DACA were terminated. The amici argued that terminating DACA would result in substantial economic damage to their businesses and the national GDP. The district court granted the injunction, finding irreparable harm to “organization interests, economic output, public health, and safety.” Id. at 1046.
Nuts and Bolts
Amicus briefs filed in district court should adhere to the same requirements as those applicable in the Court of Appeals. See Fed. R. App. P. 29; Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136-37 (D.D.C. 2008). Unless the amicus is the government or its agency, the amicus must file with consent or court permission. Fed. R. App. P. 29(a)(2). The motion must be accompanied by the proposed amicus brief, and a statement of the movant’s interest and how the brief will assist the court. Id. R. 29(a)(3)(A)-(B). An amicus brief should be filed as promptly as possible to avoid prejudicing the parties. Tafas v. Dudas, 511 F. Supp. 2d 652, 660 (E.D. Va. 2007).
An amicus brief is most impactful when it is not funded or authored by a party or a party’s counsel. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 304 (S.D.N.Y. 2000), aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). But of course, “by the nature of things an amicus is not normally impartial . . . there is no rule that amici must be totally disinterested.” Tafas, 511 F. Supp. 2d at 661 (cleaned up).
Wide-Ranging Impact of Amici
Amici curiae have been successful in helping to persuade the court in a number of recent high-profile civil rights matters. See, e.g., California v. Azar, No. 19-cv-01184-EMC, 2019 WL 1877392, at *2 (N.D. Cal. Apr. 26, 2019) (medical providers’ information for pregnant patients); Regents of the Univ. of Cal., 279 F. Supp. 3d at 1046 (DACA’s impact on the tech sector); Duronslet v. Cty. of L.A., 266 F. Supp. 3d 1213 (C.D. Cal. 2017) (whether heightened scrutiny applied to transgender minor’s claim regarding restroom access).
And amicus participation is not limited to civil rights cases. Amici have weighed in on thousands of district court cases with the potential to affect all manner of government and business interests. See, e.g., Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 593 (S.D.N.Y. 2018) (copyright); Ohio Valley Envtl. Coal., Inc. v. McCarthy, 313 F.R.D. 10, 32 (S.D.W. Va. 2015) (environment); In re BRCA1-, BRCA2-Based Hereditary Cancer Test Patent Litig., 3 F. Supp. 3d 1213, 1220 (D. Utah), aff’d and remanded, 774 F.3d 755 (Fed. Cir. 2014) (cancer patents); United States v. SBC Commc’ns, Inc., 489 F. Supp. 2d 1, 8 (D.D.C. 2007) (telecommunications antitrust).
When litigating high-stakes cases—even in district court—parties should consider recruiting amici, who can provide a unique perspective about the broader social and business interests at stake. A well-written amicus brief can persuade the judge to pay closer attention to how a ruling may actually affect nonparties, and as a result, may ultimately impact the outcome of the case.
Summer Associate, Kayla Bowen, co-authored this article.
Josephine is an Appellate Specialist certified by the California State Bar, and Senior Counsel with Hanson Bridgett's Appellate Practice Group. She represents companies, governmental organizations, nonprofits, and other litigants in all manner of civil appeals and writs, and advises clients and trial litigators on strategy and dispositive legal issues.
