Penalizing “A Want of Clairvoyance”

Joseph v. United States, ___ U.S. ___ (2014).  Most if not all appellate courts have a rule that issues not raised in an opening brief cannot be raised in subsequent filings.  That principle makes sense, as Justice Kagan said in a “Statement” respecting the denial of certiorari in this case in which Justices Ginsburg and Breyer joined, since “[i]t ensures that opposing parties will have notice of every issue in an appeal, and that neither they nor reviewing courts will incur needless costs from eleventh-hour changes of course.”  But what happens if a higher court, such as the Supreme Court of the United States, issues a decision, after the appellant’s main brief has been filed, that directly affects the appeal, such as by overturning a prior precedent that may give the appellant a new theory or claim?  Most Circuits, including the Third Circuit, allow supplemental or substitute briefs in that circumstance.

The Eleventh Circuit, however, does not permit that (at least sometimes).  In this appeal from a conviction for drug offenses, defendant was sentenced as a career offender.  When defendant filed his opening brief, Eleventh Circuit law precluded any argument that he did not qualify as a career offender.  Thereafter, however, the Supreme Court decided Descamps v. United States, 570 U.S. ___ (2013), which made clear that the prior Circuit authority no longer was good law.  Defendant then moved to file a substitute brief that addressed Descamps and argued that he should not have been treated as a career offender.  The Government did not object to that, but the Eleventh Circuit refused to allow a substitute brief.

Justice Kagan did not approve of that result.  “When a new claim is based on an intervening Supreme Court decision– as Joseph’s is on Descamps— the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance.”  She was also disturbed that the Eleventh Circuit does not apply its policy consistently, and she cited two cases in which the Eleventh Circuit addressed a Descamps claim after the opening appellant’s brief had been filed.   

Nonetheless, Justice Kagan and her two compatriots joined in the Court’s decision to deny certiorari.  That was because the Court “do[es] not often review the circuit courts’ procedural rules,” instead “allow[ing] the courts of appeals to clean up intra-circuit divisions on their own.”  Accordingly, she was willing to defer to the Eleventh Circuit “in the hope that it will recosnider whether its current practice amounts to a reasoned exercise of its authority.” 

Justices Kennedy and Sotomayor voted to grant certiorari.  Had even just two of the three Justices who signed on to Justice Kagan’s statement voted that way, there would have been the necessary four votes to review the Eleventh Circuit’s decision.  Presumably, the Eleventh Circuit will take the Court’s hint.  If not, there may be later be enough votes to grant certiorari and review this seemingly bizarre decision.