FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAUL GARCIA CUEVAS,

Petitioner-Appellant,

v.

JAMES D. HARTLEY,

Warden, Avenal State

Prison,

Respondent-Appellee.

No. 12-55807

D.C. No.

2:10-cv-09775-VAP-MLG

ORDER

Filed August 4, 2016

Before: Alex Kozinski and Susan P. Graber, Circuit

Judges, and Charles R. Breyer,* Senior District Judge.

Order;

Dissent by Judge Kozinski

* The Honorable Charles R. Breyer, Senior United States District Judge

for the Northern District of California, sitting by designation.
2 CUEVAS V. HARTLEY

SUMMARY**

Criminal Law

The panel filed a published order granting an

“Application to File an Oversized Replacement Answering

Brief.”

The panel granted the Application because of the

complexity of the case and its procedural history, including

the fact that the original brief answered a short pro se filing.

Dissenting, Judge Kozinski wrote that he does not consent

to the filing of a fat brief because the state’s motion is wholly

inadequate. He wrote that in what has become a common and

lamentable practice, lawyers, instead of getting leave to file

an oversized brief before the deadline, wait for the last minute

to file chubby briefs and dare this court to bounce them.

COUNSEL

Nathaniel H. Lipanovich, Stephen Rossi, and Michael G.

Ermer, Irell & Manella LLP, Newport Beach, California, for

Petitioner-Appellant.

Xiomara Costello, Deputy Attorney General; Kenneth C.

Byrne, Supervising Deputy Attorney General; Lance E.

Winters, Senior Assistant Attorney General; Gerald A.

Engler, Chief Assistant Attorney General; Kamala D. Harris

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CUEVAS V. HARTLEY 3

Attorney General; Office of the Attorney General, Los

Angeles, California; for Respondent-Appellee.

ORDER

Because of the complexity of this case and its procedural

history, including the fact that the original brief answered a

short pro se filing, the “Application to File an Oversized

Replacement Answering Brief” is GRANTED. The brief

tendered July 25, 2016, is ordered filed.

Circuit Judge Kozinski, dissenting:

I do not consent to the filing of a fat brief because the

state’s motion is wholly inadequate. The state had previously

filed a compliant brief that covered many of the same points,

but we ordered replacement briefs in light of Daire v.

Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The

discussion of Daire in the state’s oversized brief takes up

only 3 pages; the state’s lawyer gives no coherent explanation

for why she needed to add 14 pages. The state mentions the

complexity of the facts it wishes us to consider, but those

facts were contained in the earlier version of the state’s brief. 

Its remaining explanations are equally unconvincing. To me,

it seems perfectly clear that the state filed an overly long brief

because it thought it could get away with it.

This has become a common and rather lamentable

practice: Instead of getting leave to file an oversized brief

before the deadline, lawyers wait for the last minute to file

chubby briefs and dare us to bounce them. Of course, it’s
4 CUEVAS V. HARTLEY

hard to decide cases without a brief from one of the parties,

and denying the motion usually knocks the briefing and

argument schedule out of kilter. Denying the motion is thus

more trouble than allowing the brief to be filed and putting up

with the additional unnecessary pages. Sly lawyers take

advantage of this institutional inertia to flout our page limits

with impunity. This encourages disdain for our rules and

penalizes lawyers, like petitioner’s counsel, who make the

effort to comply.

For my part, I don’t feel bound to read beyond the 14,000

words allowed by our rules, so I won’t read past page 66 of

the state’s brief. If counsel for the state wishes me to

consider any argument in the remaining portion of her brief,

she should feel free to file a substitute brief, no longer than

14,000 words, which I will read in lieu of her oversized brief,

so long as it is filed no later than 7 days from the date of this

order.