Practice Pointer: Filing Non-Record Materials

When the Court grants certiorari in a case, it receives a copy of the record and the parties also compile a joint appendix. But what happens if counsel believes that the Court should have access to non-record materials?

In May 2003, as part of a series of amendments to the Supreme Court rules, the Justices established a straightforward procedure by which parties may “lodge” (not “file”) non-record material. Under Rule 32.3, any party or amicus must first describe such materials in a letter, served on all parties, along with an explanation why they are proper subjects for the Court’s consideration. Regardless of whether other parties consent to the lodging, parties may only submit the materials if the Clerk of the Court so requests.  The Rule was a response to the recurring tendency of parties and amici to file voluminous non-record material with the Clerk, much of it burdensome and not particularly illuminating.

Little has been written about practice under the Rule, so we thought it worth noting that the Court employed Rule 32.3 most recently in  an Indian-law case, Carcieri v. Kempthorne (07-526). In its brief on the merits, the federal government referred to four documents from the Department of the Interior written between 1936 and 1994. Three days later, the Solicitor General requested permission to lodge the documents with the Court, and on Tuesday the Clerk approved the request (docket here).

By our count, parties lodged non-record materials four times last term.  Following oral argument in Dada v. Mukasey (06-1181), the Clerk approved the petitioner’s request to lodge copies of filings and unpublished agency decisions in a similar immigration case (docket here). In Dept. of Revenue of Kentucky v. Davis (06-666), the Clerk approved the petitioner’s request to lodge copies of record material in an 1881 case, Bonaparte v. Tax Court (docket here). In Baze v. Rees (07-5439), the Clerk approved the respondent’s request to lodge a copy of a deposition transcript from the state of Kentucky’s medical expert (docket here). And in Boumediene v. Bush (06-1195), the Clerk approved the petitioners’ request to lodge records of unreported cases cited in petitioners’ brief (docket here).