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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

STATE OF FLORIDA, by and

through Bill McCollum, et al.,

Plaintiffs,

v. Case No.: 3:10-cv-91-RV/EMT

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

et al.,

Defendants.

____________________________________/

ORDER ON AMICUS CURIAE FILINGS

Over the last several weeks, this court has received numerous inquiries from

organizations and individuals expressing an interest in filing amicus curiae briefs in

support of one position or another in this litigation. Such briefs are recognized as

appropriate in some cases:

“Amicus curiae is a latin phrase for ‘friend of the court’

as distinguished from an advocate before the court. It

serves only for the benefit of the court, assisting the

court in cases of general public interest by making

suggestions to the court, by providing supplementary

assistance to existing counsel, and by insuring a complete

and plenary presentation of difficult issues so that the

court may reach a proper decision.”

Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 808 (3d Cir.

1991) (citation omitted). Amici curiae typically appear at the appellate level, and

are not usually necessary or helpful at the trial level. Consequently, there is no

provision in the Federal Rules of Civil Procedure or in the Local Rules of this court

pertaining to such appearances. However, district courts have broad discretion and

the inherent authority to allow amici to participate in appropriate cases. Because an

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amicus curiae participates for the benefit of the court, “‘it is solely within the

discretion of the court to determine the fact, extent, and manner of participation by

the amicus.’” See id. (citation omitted); accord, e.g., Leal v. Secretary, U.S. Dep’t

of Health and Human Services, 2009 WL 1148633, at *1 (M.D. Fla. Apr. 28,

2009); Resort Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495, 1500-01

(S.D. Fla. 1991).

Although there are no formal rules or guidelines for the use of amicus curiae

briefs in district courts, Rule 29 of the Federal Rules of Appellate Procedure and

Rule 37 of the United States Supreme Court Rules govern amicus curiae briefs in

those appellate proceedings, and they are instructive. Rule 29 provides that an

amicus curiae may file a brief only with leave of court and only after the movant

states his interest in the case and explains “why an amicus brief is desirable and

why the matters asserted are relevant to the disposition of the case.” Rule 37 of

the Supreme Court Rules states that an amicus curiae brief which “brings to the

attention of the Court relevant matter not already brought to its attention by the

parties may be of considerable help to the Court.” However, the circumstances

under which an amicus curiae brief will be deemed “desirable” and “helpful” are

very limited. As the Seventh Circuit Court of Appeals has stated:

The vast majority of amicus curiae briefs are filed by

allies of litigants and duplicate the arguments made in the

litigants’ briefs, in effect merely extending the length of

the litigant’s brief. Such amicus briefs should not be

allowed. They are an abuse. The term “amicus curiae”

means friend of the court, not friend of a party . . . An

amicus brief should normally be allowed when a party is

not represented competently or is not represented at all,

when the amicus has an interest in some other case that

may be affected by the decision in the present case

(though not enough affected to entitle the amicus to

intervene and become a party in the present case), or

when the amicus has unique information or perspective

that can help the court beyond the help that the lawyers

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for the parties are able to provide. Otherwise, leave to file

an amicus curiae brief should be denied.

Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997)

(Posner, J.; chambers opinion). The First Circuit has similarly cautioned that district

courts “should go slow in accepting [amicus curiae briefs] unless . . . the amicus

has a special interest that justifies his having a say, or unless the court feels that

existing counsel may need supplementing assistance.” Strasser v. Doorley, 432

F.2d 567, 569 (1st Cir. 1970). It is “particularly questionable” to allow an amicus

brief when the existing parties are “already well represented.” Id. While the parties

in this case are certainly well represented, I recognize that there possibly may be

helpful contributions from amicus curiae on the merits of the important claims

presented here. Accordingly, an orderly procedure for providing an opportunity to

do so is appropriate.

With the foregoing in mind, it is hereby ORDERED that in this case:

(1) Amicus curiae briefs will not be allowed in support of, or in opposition to,

the defendants’ anticipated motion to dismiss, as it is expected that motion will

raise discrete legal or procedural issues for which amici involvement would not be

helpful or beneficial. Rather, an amicus may only seek to file a brief on the merits,

which for purposes of this litigation will be at the summary judgment stage. If the

case survives dismissal, the plaintiffs have already indicated an intent to promptly

seek summary judgment, but either side may move for summary judgment within

the time frame to be set. I will consider allowing amicus briefs (in support of, or in

opposition to, either side) at that point in the proceedings. 

(2) Any organization or individual desiring to file an amicus brief in support

of, or in opposition to, a summary judgment motion filed by either side must first

seek leave of court by an appropriate motion. The motion may not exceed ten (10)

pages, and must be filed no later than seven (7) days after the filing of either the

motion or brief that the amicus supports. The proposed amicus brief should not be

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attached to the motion for leave to file.

(3) Any motion for leave to file must demonstrate (1) that the amicus has an

interest that may be affected by the decision in this case; (2) that the amicus brief

is desirable and relevant to the disposition of the case; and (3) that the amicus has

unique information or perspective that can help the court beyond the help that the

lawyers for the “already well represented” parties are able to provide. 

(4) Any motion for leave to file an amicus curiae brief that does not meet the

foregoing standard will be summarily denied.

(5) If leave to file an amicus curiae brief is granted --- and, it should be

noted, it is perhaps unlikely that leave will be granted in this case --- the brief shall

be filed within seven (7) days from the date of the order granting leave to file. The

brief shall not exceed a total of fifteen (15) pages. No appendix or attachments

shall accompany the brief. The brief shall be in the form set out in Rule 29(c) of the

Federal Rules of Appellate Procedure (except no cover shall be required), and it may

be filed electronically or in paper form, with copies to the parties of record. An

amicus curiae may not file a reply brief.

DONE and ORDERED this 14th day of June, 2010.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

Case No.: 3:10-cv-91-RV/EMT

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