Terry v. United States has a fascinating procedural attitude. The petition contained a question about the application of the First Step Act to “crack offenders before August 3, 2010”. In December 2020, the incumbent SG Jeff Wall rejected the petition. And on January 8, 2021 – twelve days before the inauguration – the Court of Justice issued an instrument. On March 12, the Tribunal set an oral hearing on April 20. Three days later, on March 15, the government’s response was due. Watch the ideas of March. The United States did not provide a brief response. Instead, the incumbent Attorney General Prelogar submitted a letter. She wrote that after the “change in administration” the government changed positions:
After the change in administration, the Department of Justice began its review of the government’s interpretation of Section 404 of the First Step Act. As a result of this review, the Department of Justice has concluded that the petitioner’s conviction is a “covered crime” under Section 404, that the petitioner is entitled to apply for a reduced sentence, and that the Court of Appeals made a mistake when it came to something has determined otherwise.
As a result, the government proposed that the Court appoint an amicus curiae to defend the judgment below. In general, given the late nature of this move, the Court would simply postpone the case for the October 2021 term. However, this option would cause other problems. Prelogar stated that under the government’s new position, Terry would complete his sentence on September 22, 2021 – before the start of the new term. The acting SG declared “[w]Before the case was resolved before September 22nd, a matter of dispute would arise that would need to be resolved prior to a decision on the matter. “Terry also filed a letter on the same day requesting the Tribunal to” resolve the issue raised here, as the Tribunal originally intended. “
In response, the Court acted quickly. A week after the government wrote, on March 19, the court removed the case from the calendar. The Court next appointed Professor Adam Mortara to support the judgment below. I think this was Circuit Justice Amy Coney Barrett’s first amicus appointment. And she made a wise choice in this law professor. Mortara is well equipped to handle this case quickly. At the time, the court stated that “the case will be postponed to deal with that time limit”. On March 25, the Tribunal set a very expedited timeline for the briefing. Mortara’s letter would be due April 13th. The reply letter was due on April 28th. And the case was put up for discussion on May 4th – about a week after the final scheduled argument date on April 28th.
The SG really clogged up the court here. It took the SG two months to reverse their positions. And it waited until the reply letter was due. This late move tells me that the SG probably had an assignment ready to be submitted, but those in power made the final decision at the last minute. Criminal law groups have undoubtedly lobbied the government. Had the decision been taken earlier in the term of office, the Court could have kept the April argument date. Instead, the Justice Department waited until the last possible moment. In fact, Terry blamed the government for the undue delay:
That the United States has waited to this day to admit mistakes – on the day its earnings were short and three months after the change of administration – should not affect the petitioner and others in a similar position .
Terry is right. The government’s indecision put the court and the petitioner in a very difficult position. Because the SG had waited so long, they forced the court to schedule a very rare session in May.
In 2017 I researched all May meetings of the last quarter of a century. I was able to find three. All urgent matters involved. First, Raines v. Byrd (1996) with the Constitutionality of the Veto Law on Line Items. Second, Felker v. Turpin (1996) with the constitutionality of AEDPA. Third, Swidler & Berlin v US (1998) referred to the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. Fun Fact: This case was Brett Kavanaugh’s first and only argument in the Supreme Court.
Terry represents a legitimate breakdown of the circuit, but it doesn’t even come close to the imperative nature of these other cases. The Court was forced to schedule a session in May in order to avoid a dispute in the following term for a single petitioner. (I was wondering if the certificate pool memo flagged this possible vehicle issue).
This expanded calendar also resulted in another premiere. On March 31, the United States filed an application for permission to file a brief late filing. Based on my quick research, I was only able to find one other case where the government had made such a request. (I’ve ruled out cases where the government wanted to file an amicus letter). Court observers may be able to advise. Note: The case was decided in 1983. Another note I wrote about the case in a recent post.
The answer is Bob Jones versus USA (1983). Not the best company to be with. Bob Jones’ demeanor was tortured. The files relating to this case can be found on p. 22. 36 of this archive.
In February 1982 the government filed a request for late filing of a brief.
And this application was granted in April 1982:
The movement of the Lawyer General for permission to submit a pleading on the matter out– –of– –time is granted. The movement of the Lawyer General for permission to submit a split reasoning request out– –of– –time is granted.
Law students everywhere can now use this practice as an excuse for late filings. (Not in my class). If I missed other such requests, please email me.
On Monday, April 5, the court granted the incumbent General Assembly’s motion to late filing the pleading. The court also gave the SG a split argument time in Terry. I would be surprised if the judges expressed frustration with the government’s litigation position. I acknowledge that many of the reversals of the Biden government are due to real position differences. But the reigning SG botched Terry. And President Biden’s failure to appoint a general secretary in time could have had a negative impact on the government’s position before the court. (And there is still no nomination).