Tag: supreme court

Supreme Court: Electronic Filing is Mandatory, but Does Not Count as “Filing”

Since even before I was licensed to practice law, I’ve chronicled the absurdity that is filing a case with the U.S. Supreme Court. From requiring those dropping off papers to place their documents in garbage bags, to requiring 40 copies of all documents in specialized and expensive “booklet format,” to rejecting a filing for having an “insufficiently thick cover,” instead of making justice as accessible to all as possible, this court has made practice before it the ultimate hoop-jumping experience.

All of the issues above are correctable; that is, if you do it wrong, you just need to fix it. But at the end of last year, the Supreme Court caught me with one that is not only uncorrectable, but not specified in their rules, and I post this both as a plea for the high court to get their shit together as well as to serve as a warning to other attorneys: the Supreme Court does not count “electronic filing” as “filing” for the purpose of meeting a deadline for a petition for certiorari.

Sure, electronic filing is mandatory. And sure, the Web site to submit your electronic filing calls itself “Electronic Filing System” and the address of the Web site is file.supremecourt.gov. But please be forewarned: what you do at this site does not count as a “filing.”

Of course, in order to submit your documents, you push a button labeled “New Filing.” And of course, when you complete the process, it tells you, “Your electronic filing was submitted on [date] [time].” But do not be confused: you have not filed anything.

SCOTUS E-File Portal
If you think this tool might file a document, you are mistaken, comrade.

You may also have thoroughly read each and every one of the court’s rules and guidelines and found nothing to indicate that even though you have successfully transmitted a document to the court, the court will not treat it as filed. This is true even if, as an experienced litigator, you know that literally every other federal court in this great nation considers a document as filed for deadline purposes at the earlier of when the court receives either the paper or electronic version, and that failure to file paper copies when required is a minor, correctable breach of rules rather than a jurisdictional time bar-creating nightmare. But you clearly do not understand that the Supreme Court is special, so not only must you disregard your experience with other federal courts, you must make peace with the fact that some rules are just not meant to be written.

Unfortunately, an explainer-guide like the above did not exist before this post, so when I e-filed a petition with the Supreme Court on the night of the filing deadline and saved a filing confirmation, I took comfort in the court’s Electronic Filing Guidelines, which state that the electronic and paper copies must be filed “at or near the same time.” So, “the morning after the electronic filing” seemed to me to be “near the same time” for the purpose of filing paper copies, but the Clerk of the Supreme Court rejected my filing for missing a jurisdictional time bar because, I was told for the first time, regardless of whether or when you electronically file, the only date that counts for meeting a deadline is the date the paper copies are sent.

Of course, there’s no law actually requiring the court to consider this a jurisdictional miss, since Congress has not precluded the court from “counting” the electronically filed version, but if the Supreme Court can disregard you, it, quite simply, will. My motion to file the petition “out-of-time” was denied yesterday without comment.

It’s not just me. Attorneys are regularly caught by this absurd rule, as evidenced by motions on the court’s docket to hear their petitions “out-of-time.” I was able to find at least 3 attorneys who had this problem in 2022 alone, and probably many more: since the Supreme Court (as best I can find) has never granted such a motion, I would imagine most attorneys don’t bother to file one due to the embarrassment of publicly outing themselves as having missed a deadline. I’m assuming this is also why a post like this doesn’t yet exist. It is never the highlight of an attorney’s day to tell their client — let alone any member of the public who cares to read the docket, or their blog — that a case is over because a deadline was missed, and it is not the highlight of mine. But the Supreme Court’s refusal to even put a clarification in their own rules, or a tiny note on their e-file portal, despite this regular occurrence, is a failure for which the legal community deserves warning and SCOTUS deserves shaming.

I joined this profession to help people get much needed justice, and although I wasn’t able to get it for my client this time (an unfortunate reality of civil rights litigation sometimes, even when a case is not snagged by procedural boobytraps), I hope this guide helps at least one more person get justice, and I know it will help more than one attorney avoid pulling their hair out when receiving a nastygram from the clerk after thinking they were in the clear.

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Corbett Files Petition for U.S. Supreme Court to Consider TSA Mask Mandate

Petition for CertiorariOn April 20th, 2022, TSA stopped enforcement of its travel mask mandate after a federal district court decided the CDC’s similar mandate was unlawfully issued. But, TSA has never publicly, formally rescinded its mandate, and so it could be immediately reinstated whenever the next strain or virus crosses some arbitrary threshold. I asked attorneys for TSA to indicate whether rescission was forthcoming, and they refused to answer (which, to me, is a pretty clear answer).

So, I’ve asked the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit allowing TSA authority to regulate anything that affects the “operational viability” of the transportation system. TSA’s mandate from Congress is security, not “operational viability,” a term which to me would include basically anything: the price of jet fuel, the hours pilots are allowed to work, the routes which airlines are allowed to fly… what doesn’t affect “operational viability?”

The Supreme Court (at least of recent) has been clear that agencies may not deviate from the normal boundaries of their authority based on creative interpretation of their enabling statutes. In the last year, OSHA was prevented from issuing vaccination mandates because corona is not an “occupational” hazard, the CDC was not allowed to maintain an eviction moratorium because housing is far from disease control, and the EPA was prevented from forcing power plants to switch from coal because the law gave them powers to set standards for coal, not eliminate it. Regardless of whether you agree with these decisions, and regardless of whether you agree that a mask mandate is a “good idea,” it clearly follows that TSA should be prevented from issuing mandates on communicable diseases when their mandate was to stop terrorism.

My case was assigned number 22-33, and the high court will be able to hear it, refuse it, ask the government to weigh in, or immediately send it back to the D.C. Circuit for further consideration. This was my first petition for certiorari as an attorney after having been admitted to the court’s Bar last month, and shockingly only the tenth time anyone has ever asked the court to hear a TSA-related case (3 of the other 9 were also mine over the last decade). Interestingly, filing is actually made more difficult when you’re an attorney: in addition to still needing to send in 40 paper copies in funny booklet format and pay by old-school check, you also need to submit the documents electronically through a buggy and, frankly, insecure-seeming custom platform.

Corbett v. TSA – Docket | Petition (.pdf)

Supreme Court petitions are expensive! If this work seems valuable to you, donate!

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Is It *Really* Impossible To Get A Gun License in NYC? (Part XIV — Supreme Court Strikes Down Proper Cause)

This is the fourteenth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals), Part XIII (No Help from Second Circuit). 

Total Time Spent So Far: 88 hours
Total Money Spent So Far: $2,744

Before the pandemic, I published 13 parts of a series on what it is like for an ordinary, law-abiding citizen to obtain a permit to carry a gun in New York City, in light of state law that requires one to demonstrate “proper cause” (in other words, a reason you need a gun greater than that of the average citizen) before such a license will issue. We left off with the U.S. Court of Appeals for the Second Circuit declining to reach the merits of my case because, they wrote, that a state court had already adjudicated the matter so they didn’t have to.

I had planned to re-apply and then re-file in federal court without starting in state court, but coronavirus happened and pandemic-related cases ended up dominating my time. In the meantime, however, I looked at how one could qualify for “proper cause.” Regularly carrying around large amounts of money was one way, so I started documenting whenever I had large amounts of cash. Running or working for a security company was another way, so I took and passed New York’s exam required as a prerequisite to starting such a company. I ended up re-filing my application earlier this year, but it appears we’ll never find out if I reached a level that would be sufficiently “proper” in the eyes of the NYPD Licensing Division, as today, the U.S. Supreme Court struck down the proper cause requirement in NYSPRA v. Bruen. The high court held, as was obvious, that you cannot parse the word “bear” in “the right to keep and bear arms” without concluding that the amendment provides for outside-of-home rights.

New York officials are predictably apoplectic. Gov. Kathy Hochul took to Twitter to call the decision “reckless.” Manhattan Borough President Mark Levine took to Twitter to flat-out lie, alleging that the decision struck down the requirement to get a permit. I’ve corrected Mark several times when he has made this statement in the past, and he continues to repeat it, possibly not understanding that if a citizen reasonably relies on that statement and carries a gun without a license, they may be able to use his post in defense of a gun charge. But the fact of the matter is that all of the criminals already have their guns, and law-abiding citizens with carry licenses are among the most crime-free group in the country, so there is no reason to expect an increase in violence.

I was told when I submitted my new app earlier this year that it would take 9 months (!!) to even assign my app to an officer. I will certainly update this series when I hear back.

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Supreme Court Declines To Consider Whether Travelers Have Standing to Challenge Random TSA Searches

After 5 years, my challenge to whether the TSA can disallow “opting out” of the body scanners has concluded with the U.S. Supreme Court refusing to hear the case.  The details of the case and the issue presented to the Supreme Court are well covered in a post earlier this year, so I won’t repeat them here.

The Supreme Court is busy, but it’s a bit disappointing that they didn’t take up this case, which raises a serious question as to when the citizens have standing to challenge infrequent or random searches — a question that the Eleventh Circuit approaches differently than any other Court of Appeals in the country.

The door is still open to anyone who wants to sue after being denied an opt-out request, but challenges exist there as well, and frankly, it is sad that the citizens have to wait to actually be violated by their government before they can ask the government to be enjoined from abuse.  That said, if you’ve recently asked to opt out of the body scanners in favor of a pat-down, but TSA has refused, please be in touch and I would gladly consider your case.

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U.S. Supreme Court Lifts Part of Travel Ban Injunction, Agrees to Hear Case

Travel Ban ProtestFirst: No, this was not a vindication of the “TRAVEL BAN.”

The U.S. Supreme Court today issued an opinion on the preliminary injunction entered by the 4th and 9th Circuits, as well as the government’s request that they hear the case (a “petition for certiorari” — that word is pronounced “sir-she-uh-ruh-ree,” for those wondering).  The tl;dr:

We grant the petitions for certiorari and grant the stay applications in part.

So, the Court will hear the case in the fall, but what part of the injunction did they put on hold?

The injunctions remain in place only with respect to parties similarly situated to [the plaintiffs].  In practical terms, this means that §2(c) [and §6(b)] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.

What it boils down to is this: the plaintiffs in this case were all alleging that they were denied access to attend to their family or business in the United States.  When you file a lawsuit, as a general rule, you can only ask the court to help you, not to right a wrong against the public.   Even if your case is a class-action, you can only seek to reach people “similarly situated” to you.

The lower courts enjoined the government from applying these two odious sections of the TRAVEL BAN to anyone.  But, since some people seeking entry have no connections to the U.S., those people are not similarly situated to these plaintiffs, and thus the Supreme Court narrowed the injunction to only those with some connection to U.S. persons or entities.

So, in summary:

  1. If you are accepted to university, are visiting a family member, or have been hired by a company in the U.S., the TRAVEL BAN is still on hold as to you.
  2. If you have no connection to the U.S. at all, you may have to wait a few months if you’re coming from one of the 6 Muslim countries Trump has banned — or get some family or business connections here first (the ruling isn’t quite clear if having “friends” to visit in the U.S. would count as a sufficient connection).
  3. In upholding the injunction as applied to those with a connection to the U.S., the Supreme Court is implying that the plaintiffs in this case are likely to win, because showing “likelihood of success on the merits” is required for any kind of injunction.  Good deal.
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