Should Kiobel judges be able to prevent their colleagues from seeing critical amicus briefs?

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Last Friday we filed a rather unusual motion in the Second Circuit Court of Appeals, the federal court that decided the Kiobel case two months ago.  (Kiobel was the decision that held that corporations cannot be sued for human rights abuses under the Alien Tort Statute.)  Seven groups of legal scholars and NGOs filed amicus briefs arguing that the case should be re-heard, supporting the plaintiffs’ petition for rehearing.  Unfortunately, all of these amicus briefs were rejected–by the same judges who decided Kiobel.  So we filed a motion asking the full Court of Appeals to reconsider whether the briefs can be filed.

What’s going on here?  It may only be of interest to lawyers, but it’s important to the way our courts function.  Federal appeals courts hear cases in panels of three judges; Kiobel was decided by two judges, with the third judge disagreeing.  A panel decision can be reconsidered by the court sitting “en banc,” which means roughly “as a whole”–all of the active judges of the court get together to hear the case again.  In the Second Circuit, that’s ten judges right now.  (There are three vacancies, which President Obama has nominated candidates for; “senior” judges, a semi-retired status that still allows them to hear cases, generally are not included in the “en banc” court.)  When a party files a petition for rehearing, it gets circulated to all of the judges, who can then vote to decide to whether the case will be re-heard “en banc.”

The problem here is that only the original three judges decide whether to accept the amicus briefs, and they can prevent the other judges from seeing them–the amicus briefs only get circulated to all of the judges if the judges who wrote the opinion decide to accept them.  So the judges whose opinion is being challenged can decide whether their colleagues see amicus briefs that challenge their decision.  I don’t think that’s an appropriate gatekeeping function for judges who obviously have an interest in limiting access to this material.

So what we filed was a petition for rehearing of our motions to file amicus briefs in support of the plaintiffs’ petition for rehearing.  As far as we know this has only been done once before in the Second Circuit, so who knows what will happen.  But the petition at least ensures that the other judges will be aware that the amicus briefs were filed, and that the judges who wrote the Kiobel decision didn’t want their colleagues to see them.

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