Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the February 3, 2025 edition of the National Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Rule 29 of the Federal Rules of Appellate Procedure generally controls who can file amicus curiae briefs in a federal appellate court, when they may do so, and what the briefs must contain. In August 2024, the Judicial Conference Committee on Rules of Practice and Procedure proposed amendments to Rule 29, which, among other things, impose a new requirement that amici must move for leave from the court to file their briefs, even if none of the parties object to the filing. This proposed judicial consent requirement, coupled with the proposed “Purpose” section of the Rule, could radically limit the ability of third parties to file amicus briefs, while simultaneously creating additional, unnecessary work for judges’ chambers.
Currently, Rule 29 allows the authors of amicus briefs to file their briefs with the consent of the court or with the consent of all parties. See FRAP29(a)(2). The proposed amendments remove the option to file with consent of the parties, leaving judicial consent as the only possible avenue for a prospective amicus. See Comm. on R. of Practice and Proc. of the Judicial Conf. of the United States, Proposed Amendments to the Federal Rules of Appellate and Bankruptcy Procedures, and the Federal Rules of Evidence (Aug. 2024) (committee proposal) at 29. If these recommended amendments are adopted, the appellate courts will be taking the exact opposite approach to amici as the Supreme Court has, which removed all consent requirements for amicus brief filing in 2023, when it amended Supreme Court Rule 37.2.
In its proposal, the committee even acknowledges its departure from the Supreme Court’s position on amici and states that it had initially been inclined to follow the court’s lead, but ultimately decided that the rules for the appellate courts were distinguishable from those of the Supreme Court for two reasons. See Committee Proposal at 25-26. First, it argues, the Supreme Court also requires that amicus briefs must be submitted as printed booklets, which creates a “modest filter” on amicus filings. Second, the participation of an amicus in a case might force panel judges to recuse themselves, because: (a) a judge may have an interest in the organization or firm filing the amicus brief; and (b) parties typically consent to the filing of amicus briefs as a professional courtesy and without checking whether the amicus’ participation will create recusal issues for a judge, so party consent does not meaningfully protect against a potential spate of recusals.
Neither argument is persuasive. The committee’s insistence that the Supreme Court is somehow “filtering” potential amici by requiring them to print their arguments into a booklet lacks any factual support. The committee does not provide a single example of a third party being deterred from filing an amicus brief because of the trivial amount of time and money it would cost to print their brief in booklet form. If the committee were truly convinced that the Supreme Court’s booklet deterrent makes a meaningful difference, then it could have drafted a rule incorporating the booklet requirement into its proposed amendments for the appellate courts, which would have placed much less of a burden on amici and the courts than the actual proposed amendments. It didn’t do that.
Perhaps recognizing the frivolousness of the booklet argument, the committee focuses much more of its energy on the potential issue of recusals. Here, too, however, the committee provides no evidence that the existing rules permitting consent of the parties have, in fact, caused a troubling number of recusals in cases before the appellate courts. It notes that circuit court judges have historically recused themselves because of amicus briefs filed with the court, but provides no evidence of the actual quantum of judicial recusals resulting from filed amicus briefs, which is needed to evaluate whether this phenomenon is truly concerning or ultimately trivial. More importantly, the Federal Rules of Appellate Procedure already protect against the threat of amicus briefs triggering recusal issues. Rule 29(a)(2) currently permits courts to “strike an amicus brief that would result in disqualification,” giving judges the ultimate authority to decide whether to recuse themselves or strike a brief that would otherwise necessitate their recusal. The committee provides no insight into why it believes the existing rule is insufficient to prevent the supposed recusal problem that it has identified.
Beyond the lack of meaningful justification, the proposed amendments to Rule 29 would also chill amicus activity. While some amicus briefs are propounded by well-resourced firms and organizations that can afford to engage in the extended motion practice that requesting leave from a court may require—including, where necessary, retaining local counsel—others are certainly not. The proposed rule changes would, therefore, disproportionately favor parties with connections to monied interests, categorically denying access to prospective amici that do not have large budgets to participate in this manner, which is manifestly unjust and undermines the value of amicus briefs in providing perspectives from interested parties not directly represented in the instant litigation. See, e.g., Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062,1063 (7th Cir. 1997) (an amicus brief should be accepted where “the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide”).
The judicial consent requirement is further problematized by the new “purpose” language for Rule 29 that the committee recommends, which needlessly increases the administrative and evaluative burden on judges. The new language states that amicus briefs are “disfavored” if they are “redundant with another amicus brief” or if they cover matters “already mentioned by the parties.” Committee Proposal at 28. Such requirements constitute bad policy on their face. “Redundancy” in an amicus brief can be valuable to a court in illustrating broad consensus around a particular issue, particularly if the amicus brief presents a different perspective on the same issue. Moreover, the language restricting matters “already mentioned by the parties” is so vague that it could prohibit amici from expanding significantly on a point that a party rose only in passing. These requirements also create unnecessary work for judges’ chambers. Judges would be forced to carefully evaluate every single amicus brief for redundancy by comparing them with every other submitted amicus brief, as well as the parties’ filings, before granting a motion for leave to any potential amicus. The committee has said nothing to suggest why such a system is preferable to the current system, which gives judges’ chambers flexibility to both: (a) evaluate amicus briefs through any method of their choosing as they are filed; and (b) quickly discard those that they would not find useful.
The committee has not advanced a compelling argument as to why its proposed amendments around judicial consent will be a boon to the appellate courts, while a quick consideration of the potential consequences suggests that such amendments may only disproportionately harm certain amici, while hobbling judges with additional, unnecessary work. Attorneys on all sides of appellate litigation should be wary of how such changes may sideline useful amicus allies if they are adopted. Attorneys may still submit comments on the proposed amendments through Feb. 17, and if they are adopted, they will take effect on Dec. 1, 2026. I respectfully suggest that we, on both sides of the bar, take steps to stop the madness.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at [email protected].
Thank you to DiCello Levitt associate Rebecca Trickey for contributing to this column.