Other courts are also relaxing deadlines, but even if they are, there are things practitioners should consider.
The U.S. Supreme Court has extended the deadline to file any petition for a writ of certiorari due on or after March 19, 2020, to 150 days from the date of the lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing. This extension applies prior to any ruling on a petition for writ of certiorari, said the Court, referencing Rules 13.1 and 13.3.
The Supreme Court’s action is in keeping with the actions of federal courts of appeal across the country that have responded rapidly to the COVID-19 pandemic—postponing arguments, extending deadlines, and restricting access to courthouses, according to Tim Droske, an attorney at the international law firm Dorsey & Whitney and co-chair of the firm’s Appellate Practice Group. Many courts are advising attorneys that they are relaxing certain filing deadlines or paper copy requirements, and courts are also allowing extensions as a matter of course for COVID-19-related reasons.
Droske stressed that there are a few key things appellate practitioners should keep in mind in the midst of this situation:
Only some deadlines are flexible. “Courts are exhibiting flexibility on deadlines. But attorneys should not treat the deadline to file the notice of appeal as being similarly flexible.” For example, the Third Circuit has specifically stated that “[t]he due date for a notice of appeal, petition for review or other document that confers jurisdiction on the Court is not altered by [its] notice” extending deadlines for other filings. Said Droske, “while FRAP 4(a)(5) and (6) provide means to request that the district court extend the time to file a notice of appeal or reopen the time to file a notice of appeal, it is unclear whether citing COVID-19 would be an adequate basis calling for such relief, and which in any event would be subject to the district court’s discretion.”
Droske continued, “appellate courts are being increasingly flexible on deadlines, [but] it is important to make sure the particular circuit’s rules are being carefully followed. While some courts have extended deadlines automatically, many others—even those granting extensions as a matter of course—still require that the extension be specifically requested and cite COVID-19 interruptions.”
“Use the extra time well.” Work from home interruptions due to COVID-19 are real, especially for attorneys who are parents also having their children at home. “Coordination with the client and getting appropriate approvals could take more time as businesses are scrambling to address the COVID-19 situation. And the new economic environment could change clients’ views about pursuing an appeal. It is important to factor all of this in when scheduling your brief writing,” Droske pointed out
Prepare for remote oral arguments. Courts seem to be either cancelling or moving telephonic with respect to oral argument. For counsel, it is important to “weigh the value in potentially earlier disposition by waiving oral argument vs. the utility in conducting telephonic oral argument that may perhaps be scheduled farther out,” Droske noted.
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