Revised Procedures for Commission Approval of Amicus Curiae Participation

January 13, 2021

MEMORANDUM

Attached is a copy of the revised “Procedures for Obtaining Commission Approval of a Recommendation to Participate as Amicus Curiae,” which was approved by the Commission on January 13, 2021.  These procedures are effective as of the date of adoption and supersede the “Revised Procedures for Obtaining Commission Approval of a Recommendation to Participate Amicus Curiae,” approved by the Commission on June 25, 1985.  In eighteen (18) months from the adoption date of these procedures, the Commission will conduct an evaluation of practical experience gained to assess whether alterations to the procedures are warranted.  These procedures may be modified at the Commission’s discretion by Commission vote.  

PROCEDURES FOR OBTAINING COMMISSION APPROVAL OF A
RECOMMENDATION TO PARTICIPATE AS AMICUS CURIAE

Identification of Potential Amicus Opportunity

• Upon identifying a decision s/he believes may be appropriate for amicus participation, the Office of General Counsel (OGC) shall provide a copy of the decision to the Commissioners as well as a general description of the issues under consideration.
• OGC shall promptly advise the Commissioners whenever it receives a request from any court for amicus participation.
• OGC shall promptly alert the Commissioners whenever the United States Supreme Court issues an order – either granting certiorari or calling for the views of the Solicitor General (SG) – in a case in which OGC may submit an amicus recommendation to join in the SG’s brief. Further, as soon as OGC receives a copy of the brief the SG intends to file, it will circulate it to the Commissioners. If available at the time of the submission, OGC will attach the brief the SG intends to file to the amicus recommendation.  OGC will also circulate to the Commissioners, as soon as received, copies of any available input submitted to the SG by another agency with regard to the matter.

When and How the Office of General Counsel Must Seek Approval for Amicus Participation

• Before participating as amicus curiae in any case, OGC shall submit to the Commission, through the Executive Secretariat, a detailed written memorandum describing the position(s) s/he proposes to take as amicus curiae. To facilitate thorough evaluation of the recommendation by the Commission at the earliest stages of the consideration period as possible, the Commission encourages OGC to provide a detailed explication of relevant arguments for (and against, as applicable) the proposed position(s) in the memorandum.  
• OGC shall obtain the Commission’s authorization for all amicus participation at each stage of any judicial proceeding, including upon panel rehearing or rehearing en banc, even when the Commission has previously authorized amicus participation at the panel stage.
• With regard to a case before the United States Supreme Court in which OGC wants to join an amicus brief to be filed by the SG, OGC shall submit to the Commission, through the Executive Secretariat, a written memorandum describing the position(s) the SG (and EEOC) would take as amicus curiae in the brief. Such a recommendation is required both in instances where the EEOC had asserted a position in the case while it was in the lower courts, as well as when the Commission would be presenting its position in a case for the first time.  
• The Executive Secretariat shall circulate OGC’s recommendation to the Commissioners immediately upon receipt, or as soon as possible thereafter. The default consideration period of an amicus recommendation is three business days.  If court deadlines allow it, OGC will indicate that a longer consideration period is appropriate.  In cases of emergency, OGC will consult with the Chair to set a shorter consideration period, but no less than one business day.  In such cases, the Executive Secretariat’s transmittal will be clearly labeled “Special” and OGC’s memorandum will set out the circumstances which require immediate action.
• The Commissioners may offer comments on the positions or arguments proposed in the amicus recommendation memorandum. Commissioners are encouraged to ask questions of, seek clarifications on pertinent facts, law, or arguments, and otherwise engage with OGC on the matter based upon the submitted memorandum (as opposed to waiting to comment or ask questions until a draft brief is available).  
• OGC’s recommendation will be approved if no Commissioner has placed a hold on it within the consideration period.
• Any Commissioner may place a recommendation on hold by completing a Commissioner hold sheet and submitting the sheet to the Executive Secretariat or formally registering the hold in the Commission’s notation voting system.
• OGC will attempt to resolve the matter informally with the Commissioner(s) who placed the matter on hold.
• When a hold has not been released within the consideration period, the recommendation shall be placed on the agenda for the next Commission meeting for formal consideration. Where no Commission meeting is scheduled prior to the date when the Commission’s amicus brief will be due for filing, the matter shall be submitted to the Commission for a notation vote accompanied by comments, if any, provided by the Commissioner(s) who placed the matter on hold and OGC. 
• At any time prior to formal consideration, a Commissioner may withdraw his or her hold on the recommendation. If there are no other holds on the recommendation, it will be approved and withdrawn from the agenda
• In the event that a Commissioner requests a copy of the draft brief for his or her review, OGC shall, as feasible and once a substantial draft of the brief is complete, distribute the draft brief to the Commissioner, as well as the other Commissioners, simultaneously.
• If between the time that the Commission approves an amicus recommendation and the deadline for filing an amicus brief, there is an intervening Supreme Court or binding circuit decision or statutory or regulatory amendment changing the legal landscape in such a way as to require material alteration of the approved amicus argument, OGC shall submit for authorization the proposed revised amicus recommendation to the Commission.
• The Commissioners may offer comments on draft amicus briefs. Such comments should be provided to OGC as soon after circulation of a draft brief as possible, recognizing that comments submitted close to the filing deadline could create unnecessary burdens for OGC.  Comments should ordinarily be limited to circumstances in which (1) a Commissioner has reason to believe that the brief to be filed will depart in a material respect from the approved amicus argument(s) or (2) for other compelling substantive (e.g. non-stylistic) reasons. 
• In the event OGC revises a draft brief in response to a Commissioner’s comments, OGC will distribute the revised brief, or the relevant section, as soon as possible to all the Commissioners.
• If the Commission approves an amicus recommendation, OGC retains discretion subsequently to make edits to the brief that are consistent with the amicus approval, pursuant to the General Counsel’s authority over the conduct of litigation.

After an Amicus Brief Has Been Filed

• In all cases where an amicus brief has been authorized and filed, OGC shall email a copy of the court-filed brief to all Commissioners promptly after it has been filed.
• After an amicus brief has been filed, OGC retains the authority in appropriate cases to address intervening legal developments that do not materially alter the approved amicus argument through other appropriate means (e.g. filing with the relevant court a F.R.A.P. “28(j) letter”).
• The Commission’s statutory authority includes the power to change its position on a legal issue, including a legal issue addressed in a pending amicus brief. These procedures are effective as of the date of adoption and supersede the “Revised Procedures for Obtaining Commission Approval of a Recommendation to Participate Amicus Curiae,” approved by the Commission on June 25, 1985.