RAMIREZ_PetitionFOR A WRIT OF CERTIORARI_2_6_2017
13 C. To the extent that the Eleventh Circuit’s local rules were to permit the clerk to return such motions unfiled, those local rules would be an unreasonable exercise of the supervisory and rulemaking powers because the local rules would conflict with the Federal Rules of Appellate Procedure and produce draconian results. The Federal Rules of Appellate Procedure allow the courts of appeals to promulgate their own local procedural rules, so long as those local rules do not conflict with the Constitution, federal statutes, or other rules promulgated by this Court. See generally Fed. R. App. P. 47. The Eleventh Circuit promulgated Local Rule 42-2; and it dismissed Ramirez’s appeal and refused to file his unopposed motion under that rule. But if that rule really permitted such action, it would be an unreasonable exercise of the Eleventh Circuit’s powers and would require a reversal of the order of dismissal. This Court’s “review of rules adopted by the courts of appeals in their supervisory capacity is limited in scope, but it does demand that such rules represent reasoned exercises of the courts’ authority.” Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993). Under Federal Rule of Appellate Procedure 47(a) (1),“A local rule must be consistent with—but not duplicative of—Acts of Congress and rules adopted [by this Court] under 28 U.S.C. § 2072 … .” See also 28 U.S.C. § 2072(a) (“The Supreme Court shall have the power to prescribe general rules of practice and procedure … for cases in the United States … courts of appeals.”). “Even a sensible and efficient use of the supervisory power ... is invalid if it conflicts with constitutional or statutory provisions.” Thomas v. Arn, 474 U.S. 140, 148 (1985). This is so because allowing federal courts to use their inherent authority in conflict with the Constitution or federal statutes “would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.” United States v. Payner, 447 U.S. 727, 737 (1980). Cf. Bank of Nova
14 Scotia v. United States, 487 U.S. 250, 254 (1988) (criminal context). See generally Joseph v. United States, 135 S. Ct. 705 (2014) (statement of Kagan, J., joined by Ginsburg and Breyer, JJ., respecting the denial of certiorari) (criticizing Eleventh Circuit for inconsistent application of local rule). Ramirez had called the clerk to inquire about his unopposed motion, and one of the clerks even thought the unopposed motion might have gotten lost in the clerk’s office. A. 91. Apart from the possibility that the clerk may have made a simple mistake—in which event this Court should grant relief under Part A, supra —there are only a few possible explanations for the clerk’s failure to file Ramirez’s unopposed motion and submit it to the Eleventh Circuit for consideration. And each of those explanations would mean that Local Rule 42-2 necessarily conflicted with a Federal Rule of Appellate Procedure or federal statute, and consequently is invalid. First, we have the clerk’s own stated reason: that it dismissed the appeal under 11th Cir. R. 42-2(c) because the corrected appendix was not timely filed (A. 1) and that it did not file Ramirez’s unopposed motion to accept it as timely because the appeal had been treated as dismissed (A. 36). But that rationale is a nonstarter because it pulls itself up by its own bootstraps: the unopposed motion was filed to avoid or correct the dismissal, so the dismissal itself should not preclude the unopposed motion’s filing. Moreover, the motion and corrected appendix were received on April 15, but the dismissal was not entered until April 20. A. 1, 35. If Local Rule 42-2 permitted the clerk to return the unopposed motion as unfiled, it would conflict with: • Federal Rule of Appellate Procedure 27(a)(1) (applications for relief made by motion); • Federal Rule of Appellate Procedure 25(a)(1) (papers permitted to be filed must be filed with the clerk);
- Page 1 and 2: № ____________________ IN THE SUP
- Page 3 and 4: ( ii) CONTENTS PETITION CONTENTS Qu
- Page 5 and 6: ( iv) Clerk Correspondence re Entry
- Page 7 and 8: ( vi) ELEVENTH CIRCUIT LOCAL RULES
- Page 9 and 10: 2 JURISDICTION The Eleventh Circuit
- Page 11 and 12: 4 Bausch & Lomb’s brief on its ow
- Page 13 and 14: 6 ARGUMENT This Court should grant
- Page 15 and 16: 8 appendix, but the clerk simply di
- Page 17 and 18: 10 to be entered of record.”). Li
- Page 19: 12 Administration, No. 15-15549, th
- Page 23 and 24: 16 with the requirement.” The 199
- Page 25: 18 CONCLUSION Although this Court e
14<br />
Scotia v. United States, 487 U.S. 250, 254 (1988) (criminal context). See generally<br />
Joseph v. United States, 135 S. Ct. 705 (2014) (statement of Kagan, J., joined by<br />
Ginsburg and Breyer, JJ., respecting the denial of certiorari) (criticizing Eleventh<br />
Circuit for inconsistent application of local rule).<br />
Ramirez had called the clerk to inquire about his unopposed motion, and one of<br />
the clerks even thought the unopposed motion might have gotten lost in<br />
the clerk’s office. A. 91. Apart from the possibility that the clerk may have made a<br />
simple mistake—in which event this Court should grant relief under Part A, supra<br />
—there are only a few possible explanations for the clerk’s failure to file Ramirez’s<br />
unopposed motion and submit it to the Eleventh Circuit for consideration. And each<br />
of those explanations would mean that Local Rule 42-2 necessarily conflicted with a<br />
Federal Rule of Appellate Procedure or federal statute, and consequently is invalid.<br />
First, we have the clerk’s own stated reason: that it dismissed the appeal under<br />
11th Cir. R. 42-2(c) because the corrected appendix was not timely filed (A. 1) and<br />
that it did not file Ramirez’s unopposed motion to accept it as timely because the<br />
appeal had been treated as dismissed (A. 36). But that rationale is a nonstarter<br />
because it pulls itself up by its own bootstraps: the unopposed motion was filed to<br />
avoid or correct the dismissal, so the dismissal itself should not preclude the<br />
unopposed motion’s filing. Moreover, the motion and corrected appendix were<br />
received on April 15, but the dismissal was not entered until April 20. A. 1, 35. If<br />
Local Rule 42-2 permitted the clerk to return the unopposed motion as unfiled, it<br />
would conflict with:<br />
• Federal Rule of Appellate Procedure 27(a)(1) (applications for relief made by<br />
motion);<br />
• Federal Rule of Appellate Procedure 25(a)(1) (papers permitted to be filed must<br />
be filed with the clerk);
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