Petitioning for a Writ of Certiorari before the U.S. Supreme Court

Supreme Court Rule 10 provides the starting point for analyzing the Court’s certiorari jurisdiction. Before petitioning the Supreme Court for a writ of certiorari, counsel must consider whether the case is “certworthy,” meaning that it presents a question that satisfies one or more factors governing the Supreme Court’s exercise of its certiorari jurisdiction. The US Supreme Court generally has discretionary jurisdiction to hear appeals from: (1) the U.S. Courts of Appeals and (2) each state’s court of last resort, to address questions of federal law. See 28 U.S.C. § 1254(1); 28 U.S.C. § 1257(a). Despite this broad jurisdictional grant, the Supreme Court typically exercises its jurisdiction sparingly. When deciding whether to exercise its certiorari jurisdiction, the Supreme Court considers whether the decision below (1) conflicts with a decision of a US court of appeals “on an important federal question” (commonly called a circuit split), conflicts with a decision of a state court of last resort “on an important federal question,” conflicts with a US Supreme Court decision “on an important question of federal law,” involves an important federal question that the Supreme Court has not decided, or departs drastically from “the accepted and usual course of judicial proceedings.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017); Hillman v. Maretta, 133 S. Ct. 1943, 1949 (2013); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1427 (2017);  Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 505-06 (2007). However, the Supreme Court rarely grants a writ of certiorari: (1) where the decision below merely: consists of erroneous factual findings or misapplies a properly stated rule of law, (2) to address questions of state law, or (3) To resolve conflicts among the federal district courts. Michigan v. Long, 463 U.S. 1032 (1983); Murdock v. City of Memphis, 87 U.S. 590 (1874);

The chances of obtaining Supreme Court review are exceedingly small, even if the case otherwise presents a question that may satisfy the Supreme Court’s guidelines for exercising its certiorari jurisdiction. For example, for cases involving circuit splits, counsel should consider whether (1) the split is so uneven that the outlier courts may change course, (2) only a handful of courts have addressed the issue, and (3) the conflict relates to an isolated issue that may not arise again. If so, the Supreme Court may be less likely to grant review. Other common obstacles to Supreme Court review include: vehicle issues, mootness, alternative grounds for affirmance such as an independent and adequate state legal conclusion, waiver, and finality.

In November 2017, the Supreme Court began requiring attorneys to submit cert petitions and other documents using its Electronic Filing System (in addition to serving and filing paper petitions). Before electronically submitting a petition, counsel must register to use the Supreme Court’s Electronic Filing System. Because it may take several days for the Supreme Court to approve counsel’s application, counsel should apply well before the petition’s filing deadline.

To register for electronic filing, counsel must: (1) submit an application on the Supreme Court’s website. The Supreme Court Clerk’s Office notifies counsel via email once it approves an application (typically within one or two business days) and (2) activate the application with 48 hours after receiving the clerk’s notification email. Once activated, counsel can immediately submit documents using the Electronic Filing System. Only Supreme Court Bar members are eligible to register for electronic filing.

Counsel must serve and file a petition for a writ of certiorari within 90 days (not three months) after entry of judgment in the court below. U.S. Sup. Ct. R. 13.1 and U.S. Sup. Ct. R. 13.3. The Supreme Court Clerk does not accept or file any untimely cert petition. U.S. Sup. Ct. R. 13.2.

The 90-day time period for filing a cert petition begins running on the date the court below enters judgment on the docket. This typically occurs when the court files the opinion. The time for filing a cert petition does not run from when the court below issues its mandate, a “writ of execution,” remittitur, or other similar document. (U.S. Sup. Ct. R. 13.3.)

 If any party timely petitions for rehearing in the court below, the time for filing a cert petition runs from either: (a) the date the court denies rehearing or (2) the entry of a new judgment, if the court grants rehearing. U.S. Sup. Ct. R. 13.3. If a petitioner seeks review of a judgment issued by a lower state court that is subject to discretionary review by the state court of last resort, the time for filing a cert petition runs from entry of an order denying discretionary review U.S. Sup. Ct. R. 13.1.

 When calculating the time to file a petition, counsel should: (1) exclude the day of the event that triggers the period, (2) count every day, including intermediate Saturdays, Sundays, and legal holidays, and (3) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not Saturday, Sunday, or a legal holiday. U.S. Sup. Ct. R. 30.1.

 If the petition is due on a day when the Supreme Court is closed, the time for filing is extended to the next regular business day . U.S. Sup. Ct. R. 30.1. A cert petition must contain: a cover, statement of the questions presented for review, list of parties to the proceedings, corporate disclosure statement. table of contents, table of authorities, list of citations to the decisions below, statement of jurisdiction, list of constitutional and statutory provisions, statement of the case, reasons for granting the petition, a conclusion, and an appendix. U.S. Sup. Ct. R. 14.1 and U.S. Sup. Ct. R. 29.6.