Smith v. The Islamic Emirate

Background

Osen LLC and Freshfields Bruckhaus Deringer US LLP sent letters asking for scheduling orders that would allow them to file separate motions for permission to submit amicus curiae briefs, meaning briefs submitted by people or organizations that are not parties but claim to offer useful information or perspective. The proposed briefs would address interpretations of the Terrorism Risk Insurance Act of 2002 in a magistrate judge’s report and recommendation and the parties’ objections to that report.

The court noted that the judgment creditors had already submitted briefing concerning the Terrorism Risk Insurance Act. The magistrate judge had accepted four amicus briefs between March 30 and April 29, 2022, and issued the report and recommendation on August 26, 2022. The two law firms sought a schedule for submitting proposed briefs 45 days in the future.

Legal standard

The court stated that no district-court rule or statute establishes a required procedure for seeking permission to file an amicus brief. Instead, the decision is within the court’s discretion. The court looked to Federal Rule of Appellate Procedure 29, which generally requires a non-government amicus to obtain permission or the parties’ consent. The court also considered whether the proposed briefing would be timely and useful.

The court relied on a test under which an amicus brief may be appropriate when a party lacks competent representation, when the amicus has an interest in another case that could be affected, or when the amicus has unique information or perspective that could help the court beyond what the parties’ lawyers can provide.

Analysis

The court found the requests untimely. The law firms sought permission nearly seven months after the last accepted amicus brief and three months after the magistrate judge issued the report. The court also found the requests unhelpful. The parties were represented by capable counsel and had been given expanded opportunities to address interpretations of the Terrorism Risk Insurance Act.

The letters did not identify the individuals the firms intended to represent. Osen described former members of Congress, and Freshfields described former senior government officials, but neither letter identified a particular person. Because the proposed amici were not identified, the court could not determine whether they had an interest in another affected case. The letters also did not persuade the court that the proposed amici had information or perspectives beyond what the parties’ attorneys had already presented.

Disposition

Judge George B. Daniels denied the requests in both the Osen letter and the Freshfields letter. The opinion did not rule on the underlying objections, the creditors’ claims, or the interpretation of the Terrorism Risk Insurance Act.