To Extend or Not to Extend

Occasionally someone will posit a question about Supreme Court practice to me dealing with an issue I haven’t examined. Recently, I had one such interaction with John Elwood of Vinson & Elkins.  John asked if I had looked at applications for extensions of time to file petitions for writs of certiorari. As I hadn’t looked at this issue in any detail before, I decided to bring a quantitative understanding of this practice to this post.

Putting the material together to file a petition for a writ of certiorari to the Supreme Court is no small endeavor. Compounding the time involved, often parties locate experienced counsel to takeover cases pending possible Supreme Court review.  With filing requirements creating specific parameters for when cert petitions must be filed, counsel may find themselves under the gun to file in a timely manner.  To circumvent these requirements counsel may request certain time extensions to file. This post takes a look at these requests, namely: who files them, how the justices respond, and what these applications for time extensions contain.

The Rules of the Court create the time specific filing requisites.  Rule 13 contains the initial requirement that petitions must be filed “within 90 days after entry of the judgment.”  Rule 13.5 then adds, “For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days.” The Court has certain standards for such applications for extensions that require attorneys to establish the “basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified.”  Rule 30 entitled “Computation and Extension of Time” contains additional information.  Specifically, it identifies that,

“[a]n application to extend the time to file a petition for a writ of certiorari…shall be made to an individual Justice and presented and served on all other parties as provided by Rule 22 [the Justice allotted to the Circuit from which the case arises]. Once denied, such an application may not be renewed.”

These filings are not at all unusual. Looking at one specific, random swath of time between December 4th and 12th 2017, 42 applications for extensions were filed prior to cert petitions.  While the maximum amount of time one can request is 60 days, not all petitions request the entire amount of time. Here is an example of an application filed by experienced appellate attorney Shay Dvoretzky of Jones Day. The application for a month extension was granted but amended to one day shorter than the time requested.

For the data in the post I started with a random sample of 200 applications from the 2015 through the 2017 Supreme Court terms. First, I looked at the amount of time requested in the applications. The applications are sorted into the closest category if the requested time is in between two of them.

Fig1.png

Note that the majority of the requests are for the maximum allotted time. A substantial minority of applications asked for less than the maximum amount of time though.  Why? In theory an attorney could craft a “good cause” argument for a more limited extension.

Although the justices are responsible for applications based on their allotted circuit this does not necessarily lead to an even division of labor.

Fig2.png

Justice Kennedy who is assigned to the 9th Circuit and is thus responsible for the largest and most populated geographic region also received the most applications followed by Justice Roberts who is responsible for the 4th, D.C., and Federal Circuits and by Justice Thomas who is responsible for the 11th Circuit.

Now that we have a sense of the terrain for these applications we can take a look at the justices’ responses. The justices responded to several applications with grants like the one in the Dvoretzky application above where the application was granted but the deadline date was shifted to a few days before or after the requested deadline. This type of response most likely relates to the Court’s logistic concerns and not to the merits of the applications.

Of the 200 applications, 35 or 17.5% were met with responses that were at least a week below the requested time or that were denied.  Several justices disproportionately denied applications. In fact, only three justices denied applications in this set in their entirety at all. Of those three justices, Kennedy denied 12, Scalia six, and Ginsburg one.

More justices got into the action of granting applications but for less time than requested. The breakdown of these is as follows

Fig3.png

Justice Kennedy also led in this category along with Justice Alito with Justice Gorsuch not far behind.  Most of these amended extensions were given for one month instead of the two months requested.  As both data points suggest, Justice Kennedy is the most likely justice to deny or amend such extension applications and so those filing in the 9th Circuit should take care providing good reasons for such extensions.

I dug deeper into a separate sample of 50 applications to understand their content.  First, I looked at who files these applications and was met with some surprises. The following figure tracks the firm or group associated with each of the 50 applications where this was made clear in the application.

Fig4.png

Pro-se applications (filed on an applicant’s own behalf) by far were the largest group.  Following these and other small law offices, firms with experienced attorneys also placed highly in this figure.  Several of the attorneys of record on the applications are well known in Supreme Court circles. These include Mayer Brown’s Andrew Pincus, Stanford Supreme Court Litigation Clinic’s Jeffrey Fisher, and Kirkland & Ellis’ Paul Clement.  Other notable names in this list of 50 random applications include University of Texas’ Steve Vladeck, Jones Day’s Gregory Castanias, Latham & Watkins’ Gregory Garre, and MacArthur Justice Center’s Amir Ali.

Of these 50 applications, four were met with grants that provided less than the time requested (one was granted with an additional week likely related to scheduling surrounding the holiday season).  Only one of these amended grants was from a pro-se filer while the other three were from attorneys backed by big name firms or groups.  This at minimum implies that an attorney’s place of practice is not the only variable the justices examine when deciding on these applications.

But what do these applications contain? I ran topic modeling software across the sections of these 50 applications relating to the rationale for extensions. This led to five sets of topics that help explain the types of requests made in these applications.  The topics are as follows:

Topics

  • Petition; certiorari; argument; writ; oral; reply; date
  • Time; issues; current; complex; preparing; retained; attorneys
  • Court; additional; record; circuit petitioner; states; supreme; review; appellate; filed
  • Counsel; case; due; extension; prepare; undersigned; day; recently; holidays
  • Including; file; appeals; law; applicant; state; pending; full

Some of the explanations that these topics help clarify include other obligations before the petition’s original deadline date, holidays or break periods, case complexity, and differently retained counsel at the Supreme Court level. Such explanations by no means secure granted applications in every instance but they do give a sense of the reasons behind such requests.

While this is only a small part of Supreme Court practice, successful applications may lead to improved petitions while denied applications may lead to imperfections, incomplete information, and other aspects that may hinder a cert petition’s success.


On Twitter: @AdamSFeldman

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