Rule 29. Brief of an AmicusCuriae(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus �lings during a

court’s initial consideration of a case on the merits.

(2) When Permitted. The United States or its of�cer or agency

or a state may �le an amicus-curiae brief without the consent

of the parties or leave of court. Any other amicus curiae may

�le a brief only by leave of court or if the brief states that all

parties have consented to its �ling.

(3) Motion for Leave to File. The motion must be accompanied

by the proposed brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why

the matters asserted are relevant to the disposition of the

case.

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(4) Contents and Form. An amicus brief must comply with Rule

32. In addition to the requirements of Rule 32, the cover must

identify the party or parties supported and indicate whether

the brief supports af�rmance or reversal. An amicus brief

need not comply with Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure

statement like that required of parties by Rule 26.1;

(B) a table of contents, with page references;

(C) a table of authorities—cases (alphabetically arranged),

statutes and other authorities—with references to the

pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus

curiae, its interest in the case, and the source of its

authority to �le;

(E) unless the amicus curiae is one listed in the �rst

sentence of Rule 29(a), a statement that indicates

whether:

(i) a party’s counsel authored the brief in whole or in

part;

(ii) a party or party’s counsel contributed money that

was intended to fund preparing or submitting the

brief; and

(iii) a person—other than the amicus curiae, its

members, or its counsel—contributed money that

was intended to fund preparing or submitting the

brief and, if so, identi�es each such person;

(F) an argument, which may be preceded by a summary

and which need not include a statement of the applicable

standard of review; and

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(G) a certi�cate of compliance under Rule 32(g)(1), if

length is computed using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief

may be no more than one-half the maximum length

authorized by these rules for a party’s principal brief. If the

court grants a party permission to �le a longer brief, that

extension does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must �le its brief,

accompanied by a motion for �ling when necessary, no later

than 7 days after the principal brief of the party being

supported is �led. An amicus curiae that does not support

either party must �le its brief no later than 7 days after the

appellant’s or petitioner’s principal brief is �led. A court may

grant leave for later �ling, specifying the time within which an

opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus

curiae may not �le a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral

argument only with the court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus �lings during a

court’s consideration of whether to grant panel rehearing or

rehearing en banc, unless a local rule or order in a case

provides otherwise.

(2) When Permitted. The United States or its of�cer or agency

or a state may �le an amicus- curiae brief without the consent

of the parties or leave of court. Any other amicus curiae may

�le a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for

leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the

amicus brief. The brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for

rehearing or supporting neither party must �le its brief,

accompanied by a motion for �ling when necessary, no later

than 7 days after the petition is �led. An amicus curiae

opposing the petition must �le its brief, accompanied by a

motion for �ling when necessary, no later than the date set by

the court for the response.

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2017 California Rules of CourtRule 8.200. Briefs by parties and amici curiae

(a) Parties' briefs

(1) Each appellant must serve and file an appellant's opening brief.

(2) Each respondent must serve and file a respondent's brief.

(3) Each appellant may serve and file a reply brief.

(4) No other brief may be filed except with the permission of the presiding justice, unless it qualifies under (b) or (c)(7).

(5) Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or arelated appeal.

(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2003.)

(b) Supplemental briefs after remand or transfer from Supreme Court

(1) Within 15 days after finality of a Supreme Court decision remanding or order transferring a cause to a Court of Appeal forfurther proceedings, any party may serve and file a supplemental opening brief in the Court of Appeal. Within 15 days aftersuch a brief is filed, any opposing party may serve and file a supplemental responding brief.

(2) Supplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless thepresiding justice permits briefing on other matters.

(3) Supplemental briefs may not be filed if the previous decision of the Court of Appeal was a denial of a petition for a writ withinits original jurisdiction without issuance of an alternative writ or order to show cause.

(Subd (b) adopted effective January 1, 2003.)

(c) Amicus curiae briefs

(1) Within 14 days after the last appellant's reply brief is filed or could have been filed under rule 8.212, whichever is earlier, anyperson or entity may serve and file an application for permission of the presiding justice to file an amicus curiae brief. Forgood cause, the presiding justice may allow later filing.

(2) The application must state the applicant's interest and explain how the proposed amicus curiae brief will assist the court indeciding the matter.

(3) The application must also identify:

(A) Any party or any counsel for a party in the pending appeal who:

(i) Authored the proposed amicus brief in whole or in part; or

(ii) Made a monetary contribution intended to fund the preparation or submission of the brief; and

(B) Every person or entity who made a monetary contribution intended to fund the preparation or submission of the brief,other than the amicus curiae, its members, or its counsel in the pending appeal.

(4) The proposed brief must be served and must accompany the application, and may be combined with it.

(5) The covers of the application and proposed brief must identify the party the applicant supports, if any.

(6) If the court grants the application, any party may file an answer within the time the court specifies. The answer must be servedon all parties and the amicus curiae.

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(7) The Attorney General may file an amicus curiae brief without the presiding justice's permission, unless the brief is submittedon behalf of another state officer or agency. The Attorney General must serve and file the brief within 14 days after the lastappellant's reply brief is filed or could have been filed under rule 8.212, whichever is earlier, and must provide the informationrequired by (2) and comply with (5). Any party may serve and file an answer within 14 days after the brief is filed.

(Subd (c) amended effective January 1, 2009; adopted as subd (b); previously relettered effective January 1, 2003; previously amendedeffective January 1, 2007, and January 1, 2008.)

Rule 8.200 amended effective January 1, 2017; repealed and adopted as rule 13 effective January 1, 2002; previously amended andrenumbered effective January 1, 2007; previously amended effective January 1, 2003, January 1, 2008, and January 1, 2009.

Advisory Committee Comment

Subdivision (a)(2). A respondent, other than a respondent who has filed a notice of cross-appeal, who files a respondent's brief may be required to pay a filingfee under Government Code sections 68926 if the respondent's brief is the first document filed in the appellate proceeding in the Court of Appeal by that party.See rule 8.25(c).

Subdivision (b). After the Supreme Court remands or transfers a cause to the Court of Appeal for further proceedings (i.e., under rules 8.528(c)–(e) or10.1000(a)(1)(B)), the parties are permitted to file supplemental briefs. The first 15-day briefing period begins on the day of finality (under rule 8.532) of theSupreme Court decision remanding or order transferring the cause to the Court of Appeal. The rule specifies that "any party" may file a supplemental openingbrief, and if such a brief is filed, "any opposing party" may file a supplemental responding brief. In this context the phrase "any party" is intended to mean any orall parties. Such a decision or order of transfer to the Court of Appeal thus triggers, first, a 15-day period in which any or all parties may file supplementalopening briefs and, second-if any party files such a brief-an additional 15-day period in which any opposing party may file a supplemental responding brief.

Subdivision (c)(1). The time within which a reply brief "could have been filed under rule 8.212" includes any authorized extension of the deadline specified inrule 8.212.

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2017 California Rules of CourtRule 8.520. Briefs by parties and amici curiae; judicial notice

(a) Parties' briefs; time to file

(1) Within 30 days after the Supreme Court files the order of review, the petitioner must serve and file in that court either anopening brief on the merits or the brief it filed in the Court of Appeal.

(2) Within 30 days after the petitioner files its brief or the time to do so expires, the opposing party must serve and file either ananswer brief on the merits or the brief it filed in the Court of Appeal.

(3) The petitioner may file a reply brief on the merits or the reply brief it filed in the Court of Appeal. A reply brief must be servedand filed within 20 days after the opposing party files its brief.

(4) A party filing a brief it filed in the Court of Appeal must attach to the cover a notice of its intent to rely on the brief in theSupreme Court.

(5) The time to serve and file a brief may not be extended by stipulation but only by order of the Chief Justice under rule 8.60.

(6) The court may designate which party is deemed the petitioner or otherwise direct the sequence in which the parties must filetheir briefs.

(Subd (a) amended effective January 1, 2007.)

(b) Form and content

(1) Briefs filed under this rule must comply with the relevant provisions of rule 8.204.

(2) The body of the petitioner's brief on the merits must begin by quoting either:

(A) Any order specifying the issues to be briefed; or, if none,

(B) The statement of issues in the petition for review and, if any, in the answer.

(3) Unless the court orders otherwise, briefs on the merits must be limited to the issues stated in (2) and any issues fairly includedin them.

(Subd (b) amended effective January 1, 2007.)

(c) Length

(1) If produced on a computer, an opening or answering brief on the merits must not exceed 14,000 words, including footnotes,and a reply brief on the merits must not exceed 8,400 words, including footnotes. Each brief must include a certificate byappellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on theword count of the computer program used to prepare the brief.

(2) If typewritten, an opening or answering brief on the merits must not exceed 50 pages and a reply brief on the merits must notexceed 30 pages.

(3) The tables required under rule 8.204(a)(1), the cover information required under rule 8.204(b)(10), a certificate under (1), anysignature block, any attachment under (h), and any quotation of issues required by (b)(2) are excluded from the limits statedin (1) and (2).

(4) On application and for good cause, the Chief Justice may permit a longer brief.

(Subd (c) amended effective January 1, 2011; previously amended effective January 1, 2007, and January 1, 2009.)

(d) Supplemental briefs

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(1) A party may file a supplemental brief limited to new authorities, new legislation, or other matters that were not available in timeto be included in the party's brief on the merits.

(2) A supplemental brief must not exceed 2,800 words, including footnotes, if produced on a computer or 10 pages if typewritten,and must be served and filed no later than 10 days before oral argument.

(Subd (d) amended effective January 1, 2007.)

(e) Briefs on the court's request

The court may request additional briefs on any or all issues, whether or not the parties have filed briefs on the merits.

(f) Amicus curiae briefs

(1) After the court orders review, any person or entity may serve and file an application for permission of the Chief Justice to filean amicus curiae brief.

(2) The application must be filed no later than 30 days after all briefs that the parties may file under this rule-other thansupplemental briefs-have been filed or were required to be filed. For good cause, the Chief Justice may allow later filing.

(3) The application must state the applicant's interest and explain how the proposed amicus curiae brief will assist the court indeciding the matter.

(4) The application must also identify:

(A) Any party or any counsel for a party in the pending appeal who:

(i) Authored the proposed amicus brief in whole or in part; or

(ii) Made a monetary contribution intended to fund the preparation or submission of the brief; and

(B) Every person or entity who made a monetary contribution intended to fund the preparation or submission of the brief,other than the amicus curiae, its members, or its counsel in the pending appeal.

(5) The proposed brief must be served. It must accompany the application and may be combined with it.

(6) The covers of the application and proposed brief must identify the party the applicant supports, if any.

(7) If the court grants the application, any party may file either an answer to the individual amicus curiae brief or a consolidatedanswer to multiple amicus curiae briefs filed in the case. The answer must be filed within 30 days after either the court ruleson the last timely filed application to file an amicus curiae brief or the time for filing applications to file an amicus curiae briefexpires, whichever is later. The answer must be served on all parties and the amicus curiae.

(8) The Attorney General may file an amicus curiae brief without the Chief Justice's permission unless the brief is submitted onbehalf of another state officer or agency. The Attorney General must serve and file the brief within the time specified in (2)and must provide the information required by (3) and comply with (6). Any answer must comply with (7).

(Subd (f) amended effective January 1, 2011; previously amended effective January 1, 2008, and January 1, 2009.)

(g) Judicial notice

To obtain judicial notice by the Supreme Court under Evidence Code section 459, a party must comply with rule 8.252(a).

(Subd (g) amended effective January 1, 2007.)

(h) Attachments

A party filing a brief may attach copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similarcitable materials that are not readily accessible. These attachments must not exceed a combined total of 10 pages. A copy of anopinion required to be attached to the brief under rule 8.1115(c) does not count toward this 10-page limit.

(Subd (h) adopted effective January 1, 2007.)

Rule 8.520 amended effective January 1, 2011; adopted as rule 29.1 effective January 1, 2003; previously amended and renumbered effectiveJanuary 1, 2007; previously amended effective January 1, 2008, and January 1, 2009.

Advisory Committee Comment

Subdivision (a). A party other than the petitioner who files a brief may be required to pay a filing fee under Government Code section 68927 if the brief is thefirst document filed in the proceeding in the Supreme Court by that party. See rule 8.25(c).

Subdivisions (c) and (d). Subdivisions (c) and (d) state in terms of word count rather than page count the maximum permissible lengths of Supreme Courtbriefs produced on a computer. This provision tracks an identical provision in rule 8.204(c) governing Court of Appeal briefs and is explained in the advisorycommittee comment to that provision. Subdivision (c)(3) specifies certain items that are not counted toward the maximum brief length. The signature blockreferenced in this provision includes not only the signatures, but also the printed names, titles, and affiliations of any attorneys filing or joining in the brief, whichmay accompany the signature.

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Grutter v. Bollinger, 2003 WL 1787554 (2003)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

2003 WL 1787554 (U.S.) (Appellate Brief)United States Supreme Court Amicus Brief.

Barbara A. GRUTTER, Petitioner,v.

Lee BOLLINGER, et al., Respondents.Jennifer GRATZ and Patrick HAMACHER, Petitioners,

v.Lee BOLLINGER, et al., Respondents.

Nos. 02-241, 02-516.February 21, 2003.

On Writs of Certiorari to the United States Court of Appeals for the Sixth Circuit

Consolidated Brief of Lt. Gen. Julius W. Becton, Jr., Adm. Dennis Blair, Maj. Gen. Charles Bolden, Hon.James M. Cannon, Lt. Gen. Daniel W. Christman, Gen. Wesley K. Clark, Sen. Max Cleland, Adm. Archie

Clemins, Hon. William Cohen, Adm. William J. Crowe, Gen. Ronald R. Fogleman, Lt. Gen. Howard D.Graves, Gen. Joseph P. Hoar, Sen. Robert J. Kerrey et al. as Amici Curiae in Support of Respondents

Joseph R. ReederRobert P. CharrowKevin E. SternGreenberg Traurig800 Connecticut AvenueSuite 500Washington, D.C. 20006(202) 331-3125

Carter G. Phillips

Virginia A. Seitz *

Robert N. HochmanSidley Austin Brown &Wood LLP1501 K Street, N.W.Washington, D.C. 20005(202) 736-8000

Adm. Charles R. LarsonSen. Carl LevinHon. Robert “Bud” McfarlaneGen. Carl E. Mundy, Jr.Gen. Lloyd W. NewtonLt. Gen. Tad J. OelstromHon. William J. PerryAdm. Joseph W. PrueherSen. Jack ReedHon. Joseph R. Reeder

Grutter v. Bollinger, 2003 WL 1787554 (2003)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2

Gen. H. Norman SchwarzkopfGen. John M.D. ShalikashviliGen. Hugh SheltonGen. Gordon R. SullivanGen. Anthony ZinniCounsel for Amici Curiae

*i TABLE OF CONTENTSTABLE OF AUTHORITIES ............................................................................................................. iiINTEREST OF AMICI ...................................................................................................................... 1SUMMARY OF ARGUMENT ......................................................................................................... 5ARGUMENT ..................................................................................................................................... 10THE GOVERNMENT'S COMPELLING NATIONAL SECURITY INTEREST IN A DIVERSEOFFICER CORPS REQUIRES RACE-CONSCIOUS ADMISSIONS POLICIES FOR OFFICERTRAINING PROGRAMS .................................................................................................................

10

1. Integration of the Military .............................................................................................................. 102. Integration of the Officer Corps ..................................................................................................... 133. Race Conscious Admissions Programs for Officer Education and Training .................................... 184. Race Conscious Admissions Are Constitutional ............................................................................. 27CONCLUSION .................................................................................................................................. 30

*ii TABLE OF AUTHORITIESCASESHaig v. Agee, 453 U.S. 280 (1981) ....................................... 7, 8, 27Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) ................... 8, 27Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) .... 5, 28Sweatt v. Painter, 339 U.S. 629 (1950) ................................. 8, 28Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996) ..................... 5, 28Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ........... 8, 27EXECUTIVE ORDERExec. Order No. 9981, 13 Fed. Reg. 4313 (July 26, 1948) ..... 11RULESup. Ct. R. 37.6 ................................................................... 1LEGISLATIVE HISTORYHearings By the House Special Subcomm. on DisciplinaryProblems in the U.S. Navy, H.A.S.C. No. 93-13 (1972) ........

16

DoD Appropriations of 1974: Military Personnel: HearingBefore the Subcomm. on the Dep't of Def. of the HouseComm. on Appropriations, 93rd Cong. (1974) ......................

18

Report by the House Special Subcomm. on DisciplinaryProblems in the U.S. Navy, H.A.S.C. Rep. No. 92-81 (1973)..............................................................................................

15

H.R. Rep. No. 103-357 (1993) ............................................. 24OTHER AUTHORITIESAir Force Instruction 36-2706 (Dec. 1, 1996) ....................... 12, 22Air Force Policy Directive 36-2 (Oct. 1, 1996) ..................... 22*iii Naval Academy Information Program Handbook (2002)

..............................................................................................20, 21

Am. Council on Educ., Service Academy PreparatorySchools Project, Final Report (June 15, 1993) ......................

24

B. Brubaker, Prepping to Play Football for Navy, SeattleTimes, Apr. 21, 1996 ...........................................................

23, 24

Cadet Command Headquarters, U.S. Army,Scholarship Fact Sheets: 2001 Profiles,at http://www.rotc.monroe.army.mil/scholarship_HPD/

26

Grutter v. Bollinger, 2003 WL 1787554 (2003)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

Scholarship%20information% 20TOC/fact%20sheets.htm(last updated Oct. 2, 2002) ..................................................A. Clymer, Service Academies Defend Use of Race in TheirAdmission Policies, N.Y. Times, Jan. 28, 2003 .....................

19, 20, 22

Dep't of the Army, Pamphlet 600-26, Army AffirmativeAction Plan (May 23, 1990) .................................................

12

Dep't of Def., Directive 1350.2 (Aug. 18, 1995) ................... 12Dep't of Def., Population Representation in the MilitaryServices (Nov. 1998) ............................................................

18

1 Dep't of Def., Report of the Task Force on theAdministration of Military Justice in the Armed Forces (Nov.30, 1972), reprinted in 13 Blacks in the United States ArmedForces: Basic Documents (M. MacGregor, Jr. & B. Naltyeds., 1977) ............................................................................

16

Dep't of Def., Statistical Series Pamphlet No. 02-5,Semiannual Race/Ethnic/Gender Profile By Service/Rank ofthe Department of Defense & Coast Guard (Mar. 2002) ........

6, 7, 12, 17, 22

Dep't of the Navy, OPNAVINST 5354.1E, EqualOpportunity Policy (Jan. 22, 2001) ......................................

12

Dep't of the Navy, Navy Affirmative Action Plan (1991),enclosed in Dep't of Navy, OPNAV Instruction 5354.3D(Aug. 29, 1991) ....................................................................

12, 20

*iv Dep't of the Navy, SECNAVINST 1531.2A, U.S.Naval Academy Curriculum & Admissions Policy (Feb. 2,1996) ....................................................................................

20

Dep't of Justice, Review of Federal Affirmative ActionPrograms, Report to the President (July 19, 1995) ................

12, 13, 17, 18

D. Dickerson, How to Keep Elite Collges Diverse, U.S.News & World Rep., Jan. 5, 1998 .......................................

23

P. Grier, The Case for Academics, Air Force Mag., July1993 .....................................................................................

24

L.M. Hanser & A.E. Robyn, Implementing High SchoolJROTC Career Academies (2000) ........................................

26

L. Healy, Learning to Lead, Military News, June 18, 2001 ... 22Col. M. Jones, Dir. of Admissions, USMA Admissions:The Corps. Starts Here (2002), at http://www.USMA.edu/PublicAffairs/ClubConference02./ wppcpres0402.ppt ..........

19

D. Maraniss, United States Military Struggles to MakeEquality Work, Wash. Post, Mar. 6, 1990 ............................

6, 12, 16

LTC E.J. Mason, U.S. Army War Coll. Strategy ResearchProject, Diversity: 2015 and the Afro-American Army Officer(1998) ...................................................................................

6, 7, 16

L. Morris, U.S. Army, CBSP Fact Sheet 02 (Sept. 26, 2002),at http:// www.rotc.monroe.army.mil/scholarship__HPD/Scholarship%20information%20TOC/fact% 20sheets.htm ...

26

Office of the Assistant Sec'y of Def., PopulationRepresentation in the Military Services: Fiscal Year 2000(Nov. 2001), available at http:// www.dod.mil/prhome/poprep2000/html/chapter4/chapter4_3.htm ..........................

25

*v Office of the Undersec'y of Def. Personnel & Readiness,Dep't of Def., Career Progression of Minority and WomenOfficers (1999) .....................................................................

passim

Gen. Colin Powell, Commencement Address, Bowie StateUniversity (1966), reprinted in 142 Cong. Rec. S9311 (dailyed. July 31, 1996) .................................................................

27

President's Comm. on Equal Opportunity in the ArmedForces, Equality of Treatment and Opportunity for NegroMilitary Personnel Stationed within the United States (June

15

Grutter v. Bollinger, 2003 WL 1787554 (2003)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 4

13, 1963), reprinted in 13 Blacks in the United States ArmedForces: Basic Documents (M. MacGregor, Jr. & B. Naltyeds., 1977) ............................................................................President's Comm. on Equality of Treatment &Opportunity in the Armed Servs., Freedom to Serve:Equality of Treatment and Opportunity in the ArmedServices (1950), reprinted in Blacks in the Military: EssentialDocuments (B. Nalty & M. MacGregor, Jr. eds., 1981) ........

14

U.S. Air Force Acad., 2001-2002 Catalog (2001) ................. 22U.S. Air Force Acad., Information Sheet (2000) ................. 23U.S. Coast Guard, College Student Pre-CommissioningInitiative (CSPI), at http://www.uscg.mil/jobs/cspi.html (lastvisited Feb. 4, 2003) ............................................................

22

U.S. Coast Guard Acad., Diversity & Retention (Oct.2001), at http:// www.members.aol.com/_ht_a/lyndahaley/academy/statistics.htm .........................................................

21

U.S. Coast Guard Acad., MITE: Minority Introductionto Engineering, at http:// www.cga/edu/admissions/summerprogramforjuniors/mite.htm (last visited Feb. 4,2003) ....................................................................................

21

*vi U.S. GAO, GAO/RCED-94-131, Coast Guard: Costfor Naval Academy Preparatory School and Profile ofMinority Enrollment (Apr. 12, 1994) ....................................

24

U.S. GAO, GAO/NSIAD-94-95, Military Academy: Genderand Race Disparities (Mar. 17, 1994) ...................................

19, 20

U.S. GAO, GAO/NSIAD-93-54, Naval Academy: Genderand Racial Disparities (Apr. 1993) .......................................

21

U.S. GAO, GAO/NSIAD-93-244, Air Force Academy:Gender and Racial Disparities (Sept. 1993) ...........................

22

U.S. GAO, GAO/NSIAD-92-57, DoD Service Academies:Academy Preparatory Schools Need A Clearer Mission andBetter Oversight (Mar. 1992) ...............................................

23, 24

USMA Admissions Office, Academy Getting Ready forInflux of New Cadets (June 29, 2001), at http://www.USNA.edu/PublicAffairs/R//010629/influx.html .........

19

Letter from George Washington, United States President,to Alexander Hamilton (Sept. 1, 1796), reproduced inJ. Ellis, Founding Brothers: The Revolutionary Generation(2001) ...................................................................................

8

R. Worth, Beyond Racial Preferences, WashingtonMonthly, Mar. 1998 ............................................................

23

Adm. E. Zumwalt, Jr., On Watch (1976) ............................. 15SCHOLARLY AUTHORITIEST. Crackel, West Point: A Bicentennial History (2002) ......... 19J. Foner, Blacks and the Military in American History: ANew Perspective (1974) ........................................................

16

*vii F.M. Higginbotham, Soldiers for Justice: The Role ofthe Tuskegee Airmen in the Desegregation of the AmericanArmed Forces, 8 Wm. & Mary Bill Rts. J. 273 (2000) ...........

10, 11

M. MacGregor, Jr., Integration of the Armed Forces1940-1965 (1980) ..................................................................

11, 14

C. Moskos & J. Butler, All That We Can Be: BlackLeadership and Racial Integration the Army Way (1996) ......

passim

B. Nalty, Strength For The Fight: A History Of BlackAmericans In the Military (1986) .........................................

6, 14, 15, 16, 17

M. Neiberg, Making Citizen-Soldiers: ROTC and theIdeology of American Military Service (2000) .......................

17, 25

Grutter v. Bollinger, 2003 WL 1787554 (2003)

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 5

*1 INTEREST OF AMICI

Amici are former high-ranking officers and civilian leaders of the Army, Navy, Air Force, and Marine Corps, including

former military-academy superintendents, Secretaries of Defense, and present and former members of the U.S. Senate. 1

They are deeply interested in this case, because its outcome could affect the diversity of our nation's officer corps and, inturn, the military's ability to fulfill its missions. Amici's judgment is based on decades of experience and accomplishmentat the very highest positions in our nation's military leadership. The responsibilities highlighted below do not begin todescribe the full scope of their service.

Lieutenant General Julius W. Becton, Jr. served in the U.S. Army for 40 years. He served five years as president of PrairieView A&M University, and subsequently served as Superintendent of the Washington, D.C. Public Schools.

Admiral Dennis Blair, retired 4-star, served as Commander in Chief, U.S. Pacific Command (1999-2002), where hedirected all Army, Navy, Marine Corps and Air Force operations across more than 100 million square miles.

Major General Charles Bolden, retired astronaut and 2-star, was the nation's first African-American Marine astronaut.He flew four space shuttle missions, commanding two, including the mission placing the Hubble telescope into earthorbit.

Honorable James M. Cannon served as Chairman of the U.S. Naval Academy Board of Visitors under Presidents Reaganand George H.W. Bush. (1989-93).

*2 Lieutenant General Daniel W. Christman, retired Army 3-star, was Superintendent of the U.S. Military Academy(1996-2001), where he had overall responsibility for admissions criteria at West Point.

General Wesley K. Clark served as Supreme Allied Commander, Europe (1997-2000), and Commander in Chief, U.S.Southern Command (1996-97).

Senator Max Cleland served as a combat officer in Vietnam and as Administrator of the U.S. Veterans Administration(1977-81). As U.S. Senator from Georgia (1997-2003), he chaired the Armed Services' Subcommittee on Personnel.

Admiral Archie Clemins, retired 4-star, served as Commander in Chief, U.S. Pacific Fleet (1996-99), the world's largestcombined-fleet command.

Honorable William Cohen was the 20th Secretary of Defense (1997-2001). As U.S. Senator from Maine (1979-97), hechaired the Armed Services Committee's Seapower and Force Projection Subcommittee.

Admiral William J. Crowe, retired 4-star, was the 11th Chairman of Joint Chiefs of Staff (1985-89). He also commandedU.S. Naval Forces in the Persian Gulf and NATO Forces in Southern Europe and served as U.S. Ambassador to theUnited Kingdom (1993-97).

General Ronald R. Fogleman, retired 4-star, was Air Force Chief of Staff (1994-97) with overall responsibility fororganizing and training the 750,000 active duty, Guard, Reserve and civilian members. He also served as Commanderin Chief of U.S. Transcom (1992-94).

Lieutenant General Howard D. Graves, retired Army 3-star, was Superintendent of the U.S. Military Academy(1991-96), with responsibility for admissions criteria. Since 1999, he has served as Chancellor of the Texas A&MUniversity system.

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*3 General Joseph P. Hoar, retired Marine 4-star, served as the Commander in Chief, U.S. Central Command (1991-94).

Senator Robert J. Kerrey received the Congressional Medal of Honor serving in the U.S Navy SEAL special forces. Heserved as Nebraska governor (1983-87), U.S Senator (1989-2001), and is the President of New School University.

Admiral Charles R. Larson, retired 4-star, was Commander in Chief, Pacific Fleet (1990-91), and Commander in Chief,U.S. Pacific Command (1991-94). He was also Superintendent of the Naval Academy (1983-86, 1994-98).

Senator Carl Levin is the Ranking Member of the Senate Armed Services Committee and, until January 2003, chairedthat Committee, with oversight responsibilities for the armed services.

Honorable Robert “Bud” McFarlane, a retired Marine Corps officer, was President Reagan's National Security Advisor(1983-85), and also served as Deputy Director of the National Security Council.

General Carl E. Mundy, Jr., retired Marine Corps 4-star, was the Marine Corps Commandant (1991-95), and also servedas Marine Corps Director of Personnel Procurement.

General Lloyd W. Newton, retired Air Force 4-star, commanded the Air Education and Training Command, wherehe was responsible for recruiting, training and educating all Air Force personnel, including the Air Force RecruitingService, 13 bases, and the Air Force University.

Lieutenant General Tad J. Oelstrom, retired 3-star, was Superintendent, U.S. Air Force Academy (1997-2000), and iscurrently Director, National Security Program, Kennedy School, Harvard University.

Honorable William J. Perry was the 19th Secretary of Defense (1994-97), Deputy Secretary of Defense (1993-94) andUnder Secretary of Defense for Research and *4 Engineering (1977-81). He is currently a Professor of Engineering atStanford University.

Admiral Joseph W. Prueher, retired 4-star, served as Commander in Chief, U.S. Pacific Command (1996-99),Commandant of Midshipmen, U.S. Naval Academy, and U.S. Ambassador to China (1999-2001).

Senator Jack Reed is an Army veteran. As U.S. Senator from Rhode Island, he serves on the Armed Services Committeeand chairs the U.S. Military Academy Board of Visitors.

Honorable Joseph R. Reeder, the 14th Under Secretary of the Army (1993-97), had oversight responsibility for admissioncriteria for the U.S. Military Academy and the ROTC programs at our nation's universities.

General H. Norman Schwarzkopf, retired 4-star, served as Commander in Chief, U.S. Central Command (1988-91), andoverall Commander of Allied Forces during the Gulf War.

General John M.D. Shalikashvili, retired 4-star, was the 13th Chairman of the Joint Chiefs of Staff (1993-97), and servedas Supreme Allied Commander, Europe (1992-93).

General Hugh Shelton, retired 4-star, was the 14th Chairman of Joint Chiefs of Staff (1997-2001). He also served asCommander in Chief, U.S. Special Operations Command (1996-97).

General Gordon R. Sullivan, retired 4-star, served as Army Chief of Staff (1991-95), with overall responsibility fororganizing and training over 1 million active duty Guard, Reserve, and civilian members.

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General Anthony Zinni, retired Marine 4-star, served as the Commander in Chief, U.S. Central Command (1997-2001),and as Special U.S. Peace Envoy to the Middle East (2002).

*5 SUMMARY OF ARGUMENT

Based on decades of experience, amici have concluded that a highly qualified, racially diverse officer corps educated andtrained to command our nation's racially diverse enlisted ranks is essential to the military's ability to fulfill its principalmission to provide national security. The primary sources for the nation's officer corps are the service academies andthe ROTC, the latter comprised of students already admitted to participating colleges and universities. At present, themilitary cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academiesand the ROTC use limited race-conscious recruiting and admissions policies. Accordingly, these institutions rely on suchpolicies, developed to comport with this Court's instruction in Regents of the University of California v. Bakke, 438 U.S.265 (1978).

The military has made substantial progress towards its goal of a fully integrated, highly qualified officer corps. It cannotmaintain the diversity it has achieved or make further progress unless it retains its ability to recruit and educate a diverseofficer corps. This Court and others have recognized that in certain contexts, the government may take race-consciousaction not only to remedy past discrimination, but to further other compelling government interests. See Bakke; Wittmerv. Peters, 87 F.3d 916 (7th Cir. 1996) (penological benefits justify consideration of race in selecting correctional officers;collecting similar cases). The rules should not be changed. The military must be permitted to train and educate a diverseofficer corps to further our compelling government interest in an effective military.

More than 50 years ago, President Truman issued an executive order ending segregation in the United States armedservices. That decision, and the resulting integration of the military, resulted not only from a principled recognition thatsegregation is unjust and incompatible with American values, *6 but also from a practical recognition that the military'sneed for manpower and its efficient, effective deployment required integration. Since that time, men and women of allraces have trained and fought together in our armed services, from Korea to Vietnam to Afghanistan. Today, almost 40%of servicemen and women are minorities; 61.7% are white, and the remaining almost 40% are minorities, including 21.7%African-American, 9.6% Hispanic, 4% Asian-American and 1.2% Native American. Dep't of Def. (“DoD”), StatisticalSeries Pamphlet No. 02-5, Semiannual Race/Ethnic/Gender Profile By Service/Rank of the Department of Defense & CoastGuard 4 (Mar. 2002) (“DoD Report”).

In the 1960s and 1970s, however, while integration increased the percentage of African-Americans in the enlisted ranks,

the percentage of minority officers remained extremely low, 2 and perceptions of discrimination were pervasive. Thisdeficiency in the officer corps and the discrimination perceived to be its cause led to low morale and heightened racialtension. The danger this created was not theoretical, as the Vietnam era demonstrates. As that war continued, the armedforces suffered increased racial polarization, pervasive disciplinary problems, and racially motivated incidents in Vietnamand on posts around the world. “In Vietnam, racial tensions reached a point where there was an inability to fight.”D. Maraniss, United States Military Struggles To Make Equality Work, Wash. Post, Mar. 6, 1990, at A01 (quoting Lt.Gen. Frank Petersen, Jr.). By the early 1970s, racial strife in the ranks was entirely commonplace. B. Nalty, StrengthFor The Fight: A History Of Black Americans In the Military 308-10 (1986). The lack of minority officers substantiallyexacerbated the problems throughout the armed services. LTC E.J. Mason, U.S. Army War Coll. Strategy *7 ResearchProject, Diversity: 2015 and the Afro-American Army Officer 2-3 (1998). The military's leadership “recognized that itsracial problem was so critical that it was on the verge of self-destruction. That realization set in motion the policies andinitiatives that have led to today's relatively positive state of affairs.” Id. at 3.

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“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” Haigv. Agee, 453 U.S. 280, 307 (1981) (internal quotations omitted). The absence of minority officers seriously threatenedthe military's ability to function effectively and fulfill its mission to defend the nation. To eliminate that threat, thearmed services moved aggressively to increase the number of minority officers and to train officers in diverse educationalenvironments. In full accord with Bakke and with the DoD Affirmative Action Program, the service academies and theROTC have set goals for minority officer candidates and worked hard to achieve those goals. They use financial andtutorial assistance, as well as recruiting programs, to expand the pool of highly-qualified minority candidates in a varietyof explicitly race-conscious ways. They also employ race as a factor in recruiting and admissions policies and decisions.

These efforts have substantially increased the percentage of minority officers. Moreover, increasing numbers of officercandidates are trained and educated in racially diverse educational settings, which provides them with invaluableexperience for their future command of our nation's highly diverse enlisted ranks. Today, among active duty officers, 81%are white, and the remaining 19% are minority, including 8.8% African-American, 4% Hispanic, 3.2% Asian American,and .6% Native American. DoD Report at 4. A substantial difference between the percentage of African-Americanenlisted personnel (21.7%) and African-American officers (8.8%) remains. The officer corps must continue to be diverseor the cohesiveness essential to the military mission will be critically undermined. See infra at 17.

*8 In specific contexts, the courts have approved race-conscious action to achieve compelling, but non-remedialgovernment interests. For example, the government's interest in “the promotion of racial diversity has been foundsufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations infurthering that interest.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring in part);Metro Broad., Inc. v. FCC, 497 U.S. 547, 568 (1990) (same) (citing Bakke). Amici submit that the government's compellinginterest in promoting racial diversity in higher education is buttressed by its compelling national security interest in acohesive military. That requires both a diverse officer corps and substantial numbers of officers educated and trained indiverse educational settings, including the military academies and ROTC programs. See Haig, 453 U.S. at 307; Sweattv. Painter, 339 U.S. 629, 634 (1950) (students in racially-homogenous classrooms are ill-prepared for productive livesin our diverse society). President George Washington eloquently underscored the vital importance of direct associationamong diverse individuals in education and in the profession of arms:

[T]he Juvenal period of life, when friendships are formed, & habits established that will stick by one; the Youth, or youngmen from different parts of the United States would be assembled together, & would by degrees discover that therewas not that cause for those jealousies & prejudices which one part of the Union had imbibed against another part.…What, but the mixing of people from different parts of the United States during the War rubbed off these impressions? Acentury in the ordinary intercourse, would not have accomplished what the Seven years association in Arms did. [Letterfrom Pres. George Washington, to Alexander Hamilton (Sept. 1, 1796), reproduced in J. Ellis, Founding Brothers: TheRevolutionary Generation 960-61 (2001).]

*9 The crisis that mandated aggressive integration of the officer corps in the service academies and in ROTC programsis a microcosm of what exists in our society at large, albeit with potentially more severe consequences to our nation'swelfare. Broad access to the education that leads to leadership roles is essential to public confidence in the fairness andintegrity of public institutions, and their ability to perform their vital functions and missions.

At present no alternative exists to limited, race-conscious programs to increase the pool of high quality minority officercandidates and to establish diverse educational settings for officers. The armed services must have racially diverseofficer candidates who satisfy the rigorous academic, physical, and personal prerequisites for officer training and futureleadership. It is no answer to tell selective institutions such as the service academies or the ROTC automatically to admitstudents with a specified class rank, even if such a system were administratively workable and would result in a diversestudent body. This one-dimensional criterion forces the admission of students with neither the academic nor physicalcapabilities nor the leadership qualities demanded by these institutions, damaging the corps and the military mission in

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the process. The military must both maintain selectivity in admissions and train and educate a racially diverse officercorps to command racially diverse troops. The device of admitting a top percentage will not simultaneously producehigh quality and diversity.

Like numerous selective educational institutions, the military already engages in aggressive minority recruiting programsand utilizes the service preparatory academies and other programs to increase the pool of qualified minority candidates.These important steps are vital to the continuing integration of the officer corps. The fact remains: Today, there is norace-neutral alternative that will fulfill the military's, and thus the nation's, compelling national security *10 need for acohesive military led by a diverse officer corps of the highest quality to serve and protect the country.

ARGUMENT

THE GOVERNMENT'S COMPELLING NATIONAL SECURITY INTEREST IN A DIVERSE OFFICERCORPS REQUIRES RACE-CONSCIOUS ADMISSIONS POLICIES FOR OFFICER TRAINING PROGRAMS.

The United States armed forces were ordered to desegregate more than 50 years ago. Today the enlisted ranks are fullyintegrated, and the military has confronted the absolute imperative of integrating its officer corps in furtherance of thecompelling national security interest in an effective military. To that end, the services have programs that consider raceboth in selecting participants who broaden the pool of qualified individuals for the service academies and the ROTC andin admission to the service academies and ROTC scholarship programs. Currently, no alternative means to field a fullyqualified, diverse officer corps exists. This limited use of race in furtherance of the compelling governmental interest itserves is, accordingly, constitutional.

1. Integration of the Military. African-Americans have fought for the United States in every war. F.M. Higginbotham,Soldiers for Justice: The Role of the Tuskegee Airmen in the Desegregation of the American Armed Forces, 8 Wm. &Mary Bill Rts. J. 273, 277 (2000). During peacetime, however, the United States once excluded or limited the number ofAfrican-Americans in the military. With the urgent need for manpower occasioned by war, numerical restrictions werelifted, but African-Americans were relegated to racially-segregated units and often to manual labor positions. Id. at 279;see also C. Moskos & J. Butler, All That We Can Be: Black Leadership and Racial *11 Integration the Army Way 16-29(1996); M. MacGregor, Jr., Integration of the Armed Forces 1940-1965, at 412 (1980).

This situation began to change during World War II, when President Roosevelt revised racial policies for the armedservices. Higgenbotham, supra, at 286-88. It was, however, President Truman's Executive Order 9981, signed on July 26,1948, that set the United States military on its path to integration. See 13 Fed. Reg. 4313 (1948). On October 30, 1954,the armed forces announced that the last segregated unit had been abolished. Higgenbotham, supra, at 317.

Early on, President Truman's Committee on Equality of Treatment and Opportunity in the Armed Services had made thecase that integration was a military necessity and that it would ensure efficiency and combat readiness. See MacGregor,supra, at 351-52, 355. “[S]ince maximum military efficiency demanded that all servicemen be given an equal opportunityto discover and exploit their talents, an indivisible link existed between military efficiency and equal opportunity.” Id. at355. Indeed, the history of the integration of the armed services demonstrates that integration was driven by the urgentneed to recruit and effectively utilize military manpower.

The Army initially resisted President Truman's command to integrate, until heavy casualties and slow troop replacementduring the Koean War required that African-American soldiers be assigned to fight with undermanned white units.Moskos & Butler, supra, at 30; MacGregor, supra, at 433-34. The Marines simultaneously integrated based on thesame imperative. MacGregor, supra, at 460. The Air Force saw significant gains in efficiency with integration, because“problems of procurement, training, and assignment always associated with racially designated units [were] reduced byan appreciable degree or eliminated entirely.” Id. at 409. With the move to the All Volunteer Force in 1973, the military

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necessity of “includ[ing] all Americans in the pool of potential recruits took on added *12 urgency.” Dep't of Justice,Review of Federal Affirmative Action Programs, Report to the President § 7.5.1 (1995) ( “President's Report”).

Today, the military is one of the most integrated institutions in America. See, e.g., Maraniss, supra, at A01. Themodern military judgment is that full integration and other policies combating discrimination are essential to goodorder, combat readiness, and military effectiveness. DoD Directive 1350 requires the military to formulate, maintain andreview affirmative action plans with established objectives and milestones. Dep't of Def., Directive 1350.2 § 4.4 (Aug. 18,1995). Instruction 1350.2 describes such programs as a “military necessity,” critical to “combat readiness and missionaccomplishment.” Each service, accordingly, has its own regulations and instructions implementing the DoD mandate,

and each service has goals for officer accessions. See Career Progression at 19. 3

As of March 2002, of the 1.1 million enlisted in the active duty forces, 61.7% were white, 21.7% African-American,9.6% Hispanic, 1.2% Native American, 4.0% Asian American, and 1.8% were classified as “other.” DoD Report at 4.In 1990, 24% of those who fought in Desert Shield/Desert Storm were African-American, and 30% of Army troopswere African-American. Moskos & Butler, supra, at 35. Plainly, the missions of the United States *13 military servicescannot be accomplished without the minority men and women who constitute almost 40% of the active duty armedforces. Moreover:the current leadership views complete racial integration as a military necessity - that is, as a prerequisite to a cohesive, andtherefore effective, fighting force. In short, success with the challenges of diversity is critical to national security. Experienceduring the 1960s and 1970s with racial conflict in the ranks was an effective lesson in the importance of inclusion andequal opportunity. As a senior Pentagon official told us, “Doing affirmative action the right way is deadly serious forus - people's lives depend on it.” [President's Report § 7.1 (emphasis supplied).]

2. Integration of the Officer Corps. Fully integrated enlisted ranks made integration of the officer corps essential to theeffective operation of our military. But, the military did not learn this lesson without first experiencing the dangerous anddestructive environment of a racially diverse enlisted corps commanded by an overwhelmingly white officer corps. As adirect result of the lessons learned in the 1960s and 1970s, the military is now fully committed to officer corps integration.And while the armed forces have made remarkable strides in achieving racial integration, the military cannot lose ground.It must continue actively to foster representation of minorities in the officer corps by recruiting the most promisingmembers of minority communities so that the service academies and the ROTC programs can train and educate officerswho fulfill our national security requirements.

(a) The Lesson of History. Almost as soon as President Truman ordered the integration of the armed forces, some in the

military recognized the importance of integrating the *14 officer corps. 4 After integration, however, the armed forcesdid not produce a substantial number of minority officers for more than a generation. Both lingering discrimination andthe formal educational qualifications for officers precluded quick racial integration of the officer corps. As a result, overtime, the armed forces became a racial mix of diverse enlisted ranks commanded by an overwhelmingly white officercorps. In 1962, a mere 1.6% of all commissioned military officers were African-American. Nalty, supra, at 313.

The chasm between the racial composition of the officer corps and the enlisted personnel undermined militaryeffectiveness in a variety of ways. For example, military effectiveness depends heavily upon unit cohesion. In turn,group cohesiveness depends on a shared sense of mission and the unimpeded flow of information through the chainof command. African-Americans experienced discriminatory treatment in the military, even during integration, but theconcerns and perceptions of African-American personnel were often unknown, unaddressed or both, in part because thelines of authority, from the military police to the officer corps, were almost exclusively white, Id. at 228-29; MacGregor,supra, at 579-80. Indeed, “communication between the largely white officer corps and black enlisted men could be sotenuous that a commander might remain blissfully unaware of patterns of racial discrimination that black servicemenfound infuriating.” Nalty, supra, at 282.

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*15 The military's pre-Vietnam racial problems generally were suppressed during battle (e.g., in Korea). Duringpeacetime, violent incidents were met with attempts to improve military life for African-Americans, but minorityrepresentation in the officer corps remained static. For example, in 1963, a special committee appointed by PresidentKennedy recommended that every military organization appoint an officer with authority to address issues raised byAfrican-American servicemen. President's Comm. on Equal Opportunity in the Armed Forces, Equality of Treatmentand Opportunity for Negro Military Personnel Stationed Within the United States 27-32 (June 13, 1963) (Initial Report),reprinted in 13 Blacks in the United States Armed Forces: Basic Documents, item 10 (M. MacGregor, Jr. & B. Nalty eds.,1977) (“Basic Documents ”). This recommendation proved woefully inadequate. Nalty, supra, at 291, 329; Report byHouse Special Subcomm. on Disciplinary Problems in the U.S. Navy, H.A.S.C. Rep. No. 92-81, at 17,671, 17,690 (1973)(“Special Subcommittee Report”). During the 1960s and 1970s, the military experienced a demoralizing and destabilizingperiod of internal racial strife.

Hundreds of race-related incidents occurred. For example, in the 1960s, racial violence among the Marines at CampLejeune was not uncommon. White officers were simply unaware of intense African-American dissatisfaction with jobassignments and the perceived lack of respect from the Marine Corps. Nalty, supra, at 306-07. In the early 1970s, theNavy endured similar racial violence on board the Constellation, the Kitty Hawk and the Hassayampa. See generallySpecial Subcommittee Report at 17,674-79; Adm. E. Zumwalt, Jr., On Watch 217-32 (1976). In each case, the officercorps was caught off guard, unable to bring the situation under control, due to the absence of trust and communicationbetween the predominantly white officer corps and frustrated African-American enlisted men.

*16 Throughout the armed forces, the overwhelmingly white officer corps faced racial tension and unrest. “Fightsbetween black and white soldiers were endemic in the 1970s, an era now remembered as the ‘time of troubles.’ ” Moskos& Butler, supra, at 33. “In Vietnam, racial tensions reached a point where there was an inability to fight.” Maraniss,supra, at A01 (quoting Lt. Gen. Frank Peterson, Jr.). African-American troops, who rarely saw members of their ownrace in command positions, lost confidence in the military as an institution. Mason, supra, at 2-3. And, African-Americanservicemen concluded that the command structure had no regard for whether African-Americans would succeed inmilitary careers. 1 Dep't of Def., Report of the Task Force on the Administration of Military Justice in the Armed Forces

38-48, 59-66 (Nov. 30, 1972), reprinted in 13 Basic Documents, item 66. 5

Making matters worse, many white officers had no idea how serious the problem was. “Violence and even death provednecessary to drive home the realization that the various assistant secretaries, special assistants, and even commandingofficers had only the faintest idea what the black man and woman in the service were thinking.” Nalty, supra, at 317.Ultimately, “[t]he military of the 1970s recognized that its race problem was so critical that it was on the verge of self-destruction.” Moskos & Butler, supra, at 142.

*17 The painful lesson slowly learned was that our diverse enlisted ranks rendered integration of the officer corps amilitary necessity. M. Neiberg, Making Citizen-Soldiers: ROTC and the Ideology of American Military Service 166 (2000)(“[t]he military came … to understand that having African American noncommissioned officers … and regular officerswas critical to both the operational efficiency of the military and to the creation of the more just and equal environmentthat military leaders … wanted to create”); Nalty, supra, at 338 (“[b]y the time the draft ended … the services hadrealized that discipline had to be maintained and that councils and committees, although helpful in easing racial tensionsand otherwise promoting harmony within a unit, could not shoulder the responsibilities that rightly devolved upon thecommander”). “Racial conflict within the military during the Vietnam era was a blaring wakeup call to the fact thatequal opportunity is absolutely indispensable to unit cohesion, and therefore critical to military effectiveness and ournational security.” President's Report § 7.5.1.

(b) Current Commitment To Racial Diversity In The Officer Corps. Spurred by the lessons of the 1960s and 1970s, thearmed forces have steadily integrated the officer corps since the end of the Vietnam conflict. In 1973, when the nation

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instituted its all-volunteer force, 2.8% of military officers were African-American. Career Progression at v. By March2002, 8.8% of officers were African-American. DoD Report at 4. The representation of other minorities - Hispanics,Asian Americans and Native Americans - increased at an even faster rate over the same period. Minorities now compriseroughly 19% of all officers. Id.

The modern American military candidly acknowledges the critical link between minority officers and military readinessand effectiveness. “[T]he current leadership views complete racial integration as a military necessity - that is, as aprerequisite to a cohesive, and therefore effective, fighting force. In short, success with the challenge of diversity is *18critical to national security.” President's Report § 7.1. The military's continuing, race-conscious efforts to increase thepercentage of minority officers have achieved some results, but this progress must continue. See Dep't of Def., PopulationRepresentation in the Military Services 4-8 (Nov. 1998). Accordingly, the armed forces strive to identify and train thebest qualified minority candidates to serve as officers. Infra at 18-27. As we show, these efforts include race-consciousrecruiting, preparatory, and admissions policies at the service academies and in ROTC programs - efforts that underscorethe military's resolve to do what is necessary and effective to integrate the officer corps.

3. Race-Conscious Admissions Programs For Officer Education And Training. Our armed forces therefore have focusedtheir efforts on expanding the pool of qualified minority applicants for the academies and the ROTC - the primarysources for officers. Increases in minority enrollment in these institutions obviously will increase the numbers of highlyqualified, minority officers. Career Progression at 31. The service academies and ROTC employ limited, race-consciousadmission programs and policies, both to expand the pool of minority applicants and to increase the number of minorityparticipants. Moreover, increased minority representation in the officer corps enhances our ability to recruit highlyqualified minorities into the enlisted ranks.

(a) Army. In 1973, testimony by Army leaders before the House Appropriations Subcommittee confirms that integrationof the officer corps was essential to address the Army's race-related turmoil. The witnesses identified “[i]ncreasing thenumber of minority cadets at [West Point] and in the ROTC program” as a critical component of improving the Army'srace relations. DoD Appropriations of 1974: Military Personnel: Hearing Before the Subcomm. on the Dep't of Def. ofthe House Comm. on Appropriations, 93d Cong., 308-09 (1974). The first program that succeeded in increasing minorityrepresentation was at West Point. In *19 1968, there were 30 African-American cadets at the Academy; by 1971, therewere almost 100. T. Crackel, West Point: A Bicentennial History 238 (2002). The Army's successful integration of WestPoint continues. In 1993, minorities made up 16.5% of cadets, and the Class of 2005 is 25% minority, including 8%African-American (100 cadets) and 6% Hispanic (70 cadets). USMA Admissions Office, Academy Getting Ready ForInflux of New Cadets (June 2001), at http://www.USNA.edu/PublicAffairs/R//010629/influx.html. Today, there are morethan 300 African-American and 150 Hispanic cadets.

In order to integrate itself, and hence the Army officer corps, the U.S. Military Academy has self-consciously attempted“to balance the Corps” and therefore has “develop[ed] goals for each class for desired percentages of scholars, leaders,athletes, women, blacks, Hispanics and other minorities.” U.S. GAO, GAO/NSIAD-94-95, Military Academy: Genderand Race Disparities 13 (Mar. 17, 1994) (“USMA GAO Report”). West Point's Superintendent sets yearly targets forminority admissions. Career Progression at 20. As Director of Admissions Colonel Michael L. Jones stated, “ ‘We like torepresent the society we come from in terms of the student body's undergraduate experiences. [H]aving a diverse studentbody allows personal growth in areas where people may not have gotten it otherwise. We want people to understandthe society they will defend.’ ” A. Clymer, Service Academies Defend Use of Race in Their Admissions Policies, N.Y.Times, Jan. 28, 2003.

The Academy's specific percentage goals for minorities are based upon their “representation in the national populationand in the national pool of college bound people, and their representation in the Army.” USMA GAO Report at 13.See also Col. M. Jones, Dir. of Admissions, USMA Admissions: The Corp Starts Here, at http://www.USMA.edu/PublicAffairs/ClubConference02./wppcpres0402.ppt (USMA seeking 20-25% minorities). In pursuit of these goals, *20

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“minorities [are] consistently offered admission [to West Point] at higher rates than whites [despite] lower academicpredictor scores and lower academic, physical education, and military grades.” USMA GAO Report at 2. This reflectsthe Academy's need to extend a greater number of offers to qualified minority candidates to achieve diversity. Id. In sodoing, the Academy ensures that each minority candidate is highly qualified and has the potential to be an outstandingofficer in the Army based on a broad range of factors.

(b) Navy. Like West Point, the U.S. Naval Academy aggressively recruits minority applicants and employs a limitedrace-conscious admissions policy. The instructions implementing the Navy Affirmative Action Plan directed the Navyto achieve “a minority officer inventory of six percent Blacks by end of FY2000, [and] three percent Hispanics by endof FY99.” Navy Affirmative Action Plan at 10. They set a Significant Action Step of monitoring the “United StatesNaval Academy (USNA) actions to commission at least seven percent Black Navy officers annually starting with USNAClass of 1994” and ensuring “continued commissioning of at least four percent Hispanic Navy officers annually.” Id.Additional Instructions issued in 1996 specifically stated that the “Naval Academy admissions procedures must supportthe primary objectives of selecting candidates who … [r]epresent women and minorities in appropriate numbers insupport of the Equal Opportunity Program of the Department of the Navy.” Dep't of the Navy, SECNAVINST 1531.2A,U.S. Naval Academy Curriculum & Admissions Policy 1-2 (Feb. 2, 1996). As Naval Academy Dean of AdmissionsDavid Vetter stated, “ ‘We want to build an officer corps that reflects the military services of which we are a part.’ ”Clymer, supra.

Substantial human and financial resources are devoted to recruiting and admitting minority students to the Academy.The Naval Academy Information Program Handbook 23-25 (2000) (internal working document) guides Academy-affiliated individuals who recruit high-school students, *21 making clear that minority recruitment is a high priority.See id. at 23-25. Each recruiting region and the admissions office itself has a minority recruitment specialist. Critically,a GAO Report, U.S. GAO, GAO/NSIAD-93-54, Naval Academy: Gender and Racial Disparities 8 (Apr. 1993) (“NavalAcademy GAO Report”), stated:

The Academy also considers desired class composition of minorities and women in its selection ofapplicants. The Academy uses the “Chief of Naval Operations' goals” as a basis for establishingtargets. Its targets for Blacks are 7 percent and 4 percent for Hispanics, which are the same as forthe fleet…. The Academy accepts a greater percentage of women and minorities to allow for attritionand still achieve the Chief of Naval Operations' accession goals.

The Naval Academy GAO Report further found that “a higher percentage of minorities who did qualify were admittedto the Academy than their white counterparts” and that “[a]verage success predictor scores were significantly higher forwhites than for minorities.” Id. at 37. The Report therefore concluded that “[b]ecause of the lower qualification rate ofminorities, the Academy makes offers of appointment to the majority of qualified minorities to achieve the Chief of Naval

Operations' commissioning goals for minorities.” Id. at 38 (emphasis supplied). 6

*22 (c) Air Force. Like other services, the Air Force has adopted a Policy Directive, instructing that “the Air Force willdevelop affirmative action programs which represent minorities, women, and persons with disabilities at all grade levels,in every employment category and in every major organizational element.” Air Force Policy Directive 36-2 ¶ 2 (Oct. 1,1996). See also Air Force Instruction 36-2706 § 1.1., at 7 (Dec. 1, 1996) (Air Force Equal Opportunity and TreatmentProgram improves mission effectiveness by combating discrimination and allowing “Air Force members [to] ris[e] to thehighest level of responsibility possible”).

The admissions policy of the Air Force Academy is set out in its catalog and in U.S. GAO, GAO/NSIAD-93-244, AirForce Academy: Gender and Racial Disparities (Sept. 1993) (“Air Force GAO Report”) The Academy compiles a list ofcandidates who meet minimum admission standards and then determines which eligible candidates will receive an offer.

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See U.S. Air Force Acad., 2001-2002 Catalog 14 (2001). The Air Force GAO Report, at 33, states that “[o]n average,minorities had comparable physical fitness scores but lower academic admissions scores.” From 1991-1995, 18% ofminority applicants were deemed qualified for admission, compared with 28% of white applicants; but 76% of qualifiedminority candidates received offers, compared with 51% of white applicants, Id. at 35-36. Clearly, then, the Academyhas an admissions policy that takes some limited account of race. See id. at 37-38 fig. 3.4 (admission score for minoritystudents roughly 3000 points and for white students roughly 3200 points); Clymer, supra (quoting associate dean of *23admissions Rollie Stoneman, “ ‘[race] certainly [is] one of any number of factors we consider’ ”).

For 2000, 18% of enrolled students were members of a minority group. U.S. Air Force Acad., Information Sheet (2000)(unpublished) (on file with author).

(d) Service Academy Preparatory Schools. The service academy preparatory schools demonstrate both the importancethe services place on integrating their officer corps and the race-conscious measures they employ to achieve that urgentneed. Each service academy is associated with a federally-funded preparatory academy that is the single most significantsource of minority candidates for that academy. See Career Progression at 35, 37; Moskos & Butler, supra, at 86;U.S. GAO, GAO/NSIAD-92-57, DoD Service Academies: Academy Preparatory Schools Need A Clearer Mission andBetter Oversight 11 (Mar. 1992) (“Academy Preparatory Schools GAO Report”). For example, the Military AcademyPreparatory School accounts for 20-40% of African-American students and 20-30% of Hispanic students at West Point,

and these students are highly successful after admission. Career Progression at 37. 7 See also R. Worth, Beyond RacialPreferences, Washington Monthly, Mar. 1998, at 28 (“[b]ecause blacks score on average almost 200 points lower onthe SAT than whites, [the Army preparatory school] has become an indispensable pipeline for bringing [blacks] into theofficer corps”). Similarly, “[a]bout one-third of the minority midshipmen came from [the Naval Academy PreparatorySchool].” Career Progression at 38. See also B. Brubaker, Prepping to Play Football for Navy, Seattle Times, Apr. 21, 1996,at D3. *24 “Almost all Coast Guard students at [the Navy's preparatory school] are minorities.” Am. Council on Educ.,Service Academy Preparatory Schools Project, Final Report 89 (June 15, 1993) (“Am. Council on Educ. Report”). Fullyone-third of minority cadets at the Air Force Academy attend its preparatory school. P. Grier, The Case for Academics,Air Force Mag., July 1993, at 60.

The current mission of the preparatory schools is to prepare minorities, as well as enlisted men, women, and athletes, forthe service academies. Academy Preparatory Schools GAO Report at 3 (the preparatory schools are important “becausethey prepare minorities and women for academy admission, and therefore promote diversity in the officer corps”); H.R.Rep. No. 103-357, at 676 (1993) (same). Each preparatory academy uses a race-conscious admission policy.

The Army preparatory school sets specific numeric goals. See Am. Council on Educ. Report at 41. Both the Navy andAir Force preparatory schools enroll about 40% minority students. See Brubaker, supra, at D3 (quoting J. Renard,Naval Academy Dean of Admission, calling the preparatory school “ ‘truly an affirmative action success story’ ” because“[w]ithout [the prep school] he could not possibly meet Navy goals to boost minority representation at the academy to29 percent”); Am. Council on Educ. Report at 28-29 (the Air Force Preparatory school is roughly 40% minority and isproviding 30-50% of minority students at the Academy). The Coast Guard, too, sends students to the Navy's preparatoryschool to “expand the pool of minorities applying to the Coast Guard Academy.” U.S. GAO, GAO/RCED-94-131, CoastGuard: Cost for Naval Academy Preparatory School and Profile of Minority Enrollment (Apr. 12, 1994) (the preparatoryschool has “improved the minority profile” at the Coast Guard Academy which is its “primary purpose”).

*25 (e) ROTC Scholarships. The ROTC produced 48% of active duty officers as of 2000. 8 Like the service academies,it is considered a prime pathway for a career as a military officer. Career Progression at 15, 17. Because Academy classesare small, the armed services initially saw the ROTC as the “obvious solution” to the problems created by the lackof minority representation in the officer corps. Neiberg, supra, at 167 (quoting Ben Cassiday, Report to the AFROTCAdvisory Panel (Sept. 18, 1972)). For minorities, the ROTC continues to be a particularly significant vehicle for increasingrepresentation in the officer ranks. Moskos & Butler, supra, at 84.

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Like the service academies, the ROTC employs an aggressive race-conscious admissions program. Each service's ROTCprogram is tasked to meet its service's minority goals for commissioning officers. As a result, the ROTC's recruitingprograms and strategies are overtly race conscious. For example, the Air Force “Gold Bar” program uses newlycommissioned, minority ROTC graduates full time in an effort to recruit minorities for its ROTC. Career Progressionat 42. The Navy ROTC tripled the number of African-Americans applying for a scholarship after the Secretary of theNavy set specific goals for minority officer accession in 1993. Id. In addition to their targeted recruiting efforts, theROTC “administer[s] compensatory programs in an attempt to broaden the pool of minority candidates.” Id. at 31. Forexample, the Junior ROTC purposefully targets inner city high schools and provides a program to address the specialneeds of this population as a way to increase the pool of minority officer candidates. Id. at 39-40. See also L.M. *26Hanser & A.E. Robyn, Implementing High School JROTC Career Academies (2000).

To obtain an ROTC scholarship, a candidate must be admitted to the hosting college or university. The pool ofminority candidates at any given ROTC member institution is thus limited to the number of minority studentsadmitted. In addition, the military services issue regulations that determine the number of scholarships allotted to eachschool (although there are a certain number of scholarship recipients not included in any school's allocation). See L.Morris, U.S. Army, CBSP Fact Sheet 02, ¶ 2 (Sept. 26, 2002), at http:// www.rotc.monroe.army.mil/scholarship_HPD/Scholarship%20information%20TOC/fact% 20sheets.htm. To increase the number of minority ROTC participants, theROTC makes substantial numbers of scholarships available at historically African-American colleges and universities(“HBCUs”) and at institutions with high Hispanic enrollment (“HMIs”). Career Progression at 34, 94. This allocation,by itself, ensures that a certain percentage of ROTC scholarships will be awarded to minority college students.

The program's limited race-conscious policies are also reflected in the gap between the SAT scores of minorityscholarship recipients and average scholarship recipients. For example, the mean SAT score of recipients in 2001 was1236 with an average high school GPA of 3.6, compared to the mean SAT score for HBCU scholarship recipients of920 and average high school GPA of 2.9. See Cadet Command Headquarters, U.S. Army, Scholarship Fact Sheets:2001 Profiles, figs. 1-2, at http://www.rotc.monroe.army.mil/scholarship_HPD/Scholarhip%20information%T̈OC/fact%20sheets.htm (last updated Oct. 2, 2002). See also Moskos & Butler, supra, at 84.

The U.S. military's collective judgment is perhaps best summed up by General Colin Powell, in confirming his strongsupport for affirmative action: “In the military, we …. used Affirmative Action to reach out to those who were qualified,*27 but who were often overlooked or ignored as a result of indifference or inertia.” Commencement Address, Bowie

State University (1996), reprinted in 142 Cong. Rec. S9311, S9312 (daily ed., July 31, 1996).

4. Race Conscious Admissions Are Constitutional. The race-conscious admissions policies at the service academies and inthe ROTC program serve compelling governmental purposes and are narrowly tailored to serve those purposes. Limitedrace-conscious admissions policies at civilian universities are constitutional for the same reason..

This Court and others have recognized that in certain contexts, race-conscious action that furthers compelling, non-remedial government interests is constitutional. The government's interest in racial diversity in higher education iscompelling and supports the use of racial considerations in furthering that interest. Wygant, 476 U.S. at 286 (O'Connor,J., concurring in part); Metro Broad., Inc., 497 U.S. at 568 (same) (citing Bakke). Because racial diversity in highereducation also is necessary to integrate the officer corps and to train and educate white and minority officers, it is essentialto ensuring an effective, battle-ready fighting force. This is indisputably a compelling government interest. “It is obviousand unarguable that no governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at307 (internal quotations omitted).

As noted, the service academies and the ROTC are the primary sources of our officer corps, including those in thehighest ranks. Entry through these avenues gives an officer a relative advantage for promotion and assignment. Career

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Progression at 25; id. at 62-63 (“minorities from selective colleges have significantly higher performance ratings” onofficer reviews than their cohorts from less selective colleges). History has proven that these institutions must providesubstantial numbers of minority officers for the services to field the diverse corps that is essential to military efficiencyand effectiveness. Indeed, just as compelling *28 public safety and penological benefits justify consideration of race inthe selection of police and correctional officers, even more compelling considerations of national security and militarymission justify consideration of race in selecting military officers. Cf. Wittmer, 87 F.3d at 920.

Integration of the service academies and the ROTC also provides white and minority officers with the training andeducational experience necessary to lead enlisted ranks that are 40% minority. In this connection, ROTC officercandidates are selected from those already admitted to host colleges and universities. These institutions must havesufficient minority enrollment so that their ROTC programs can, in turn, train and educate substantial numbers ofqualified minority officers and provide officer candidates with a racially diverse educational experience. The militaryemploys ROTC programs at HBCUs and HMIs to recruit high quality minority applicants in sufficient numbers, butpreparing officer candidates for service, let alone command, in our racially diverse military is extraordinarily difficult in aracially homogenous educational setting. To paraphrase Sweatt, a future officer's most effective training and educationcannot take place at an institution “in isolation from the individuals and institutions” that he or she will command.339 U.S. at 634. “[T]he ‘nation's future depends upon leaders trained through wide exposure’ to the ideas and mores ofstudents as diverse as this Nation of many peoples.” Bakke, 438 U.S. at 312-13 (Powell, J., concurring) (quoting Keyishanv. Board of Regents, 385 U.S. 589, 603 (1967)).

The crisis that resulted in integration of the officer corps is but a magnified reflection of circumstances in our nation'shighly diverse society. In the 1960s and 1970s, the stark disparity between the racial composition of the rank and file andthat of the officer corps fueled a breakdown of order that endangered the military's ability to fulfill its mission. That threatwas so dangerous and unacceptable that it resulted in immediate and dramatic changes intended to restore minority *29enlisted ranks' confidence in the fairness and integrity of the institution. In a highly diverse society, the public, includingminority citizens, must have confidence in the integrity of public institutions, particularly those educational institutionsthat provide the training, education and status necessary to achieve prosperity and power in America.

There is presently no workable alternative to limited, race-conscious programs to increase the pool of qualified minorityofficer candidates and establish diverse educational settings for officer candidates. Plainly, as respondents' briefs show,the alternative proposed by the United States - admission of students who achieve a specified class rank - is no alternativefor private universities and colleges or for graduate schools or for any public institution with a national student body.

Equally to the point, the armed services must have racially diverse officer candidates who also satisfy the rigorousacademic, physical, and personal prerequisites for officer training and future leadership. It is no answer to tell selectiveinstitutions, such as the service academies or the ROTC, automatically to admit students with a specified class rank,even if such a system were administratively workable. This lone criterion mandates the admission of students unable tosatisfy the academic, physical, and character-related demands of the service academies or the officer training curriculum.Moreover, even if the pool of minority ROTC candidates remains quantitatively stable, such a policy will reduce thenumber of high quality minority candidates for ROTC scholarships. Minority candidates are not fungible in the waythe government's proposed alternative suggests.

In the interest of national security, the military must be selective in admissions for training and education for the officercorps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educationalsetting. It requires only a small step from this analysis to conclude that our country's other most selective institutionsmust remain both diverse and selective. Like our military *30 security, our economic security and internationalcompetitiveness depend upon it. An alternative that does not preserve both diversity and selectivity is no alternative at all.

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Nor does telling the military to work harder to recruit high quality minority candidates make sense. Each service alreadyhas numerous aggressive minority recruiting programs and expends significant funds and human resources on servicepreparatory academies and other programs in efforts to increase the pool of qualified minority candidates. As the growingpercentage of minority officers reveals, the military services are making substantial progress toward diverse, highlyqualified leadership - progress envied by other institutions in our society. That progress must be protected and mustcontinue. The admissions policies of the service academies and the ROTC reflect a collective military judgment - that thecarefully tailored consideration of race in the admission and training of officer candidates is essential to an integratedofficer corps and hence to our fighting force. Today, there is no race-neutral alternative that will fulfill the military's andthe nation's compelling need for a diverse officer corps of the highest quality to serve the country.

CONCLUSION

The court of appeals' decision that racial diversity in higher education is a compelling state interest should be affirmed.

FootnotesFN* Counsel of Record

1 Pursuant to Rule 37, letters of consent from the parties have been filed with the Clerk of the Court. In accordance with Rule37.6, amici state that no counsel for either pony has authored this brief in whole or in part, and no person or entity, other thanamici, has made a monetary contribution to the preparation or submission of this brief.

2 For example, at the end of the Vietnam War, only 3% of Army officers were African-American. Office of the Undersec'y ofDef. Personnel & Readiness, Career Progression of Minority and Women Officers v (1999) ( “Career Progression”).

3 See also, e.g., Dep't of the Navy, Navy Affirmative Action Plan (1991) (“Navy Affirmative Action Plan”), enclosed in Dep't ofthe Navy, OPNAV Instruction 5354.3D (Aug. 29, 1991) (setting goals for minority officer population and accessions); Dep'tof the Navy, OPNAVINST 5354.1E, Equal Opportunity Policy § 4(a) (Jan. 22, 2001) (discrimination “adversely affect[s] goodorder and discipline, mission readiness, and prevent[s] our Navy from attaining the highest level of operational readiness”);Air Force Instruction 36-2706, at 1 (Dec. 1, 1996) (implementing DoD Instruction 1350.3); Dep't of the Army, Pamphlet600-26, Army Affirmative Action Plan § 2-3 (May 23, 1990) (setting goals for officer accessions based on DoD 1350.3).

4 For example, in its final report to President Truman. the committee charged with overseeing integration expressed“dissatisf[action] with the small number of [black] officers in the [N]avy,” and urged the Navy to increase minorityparticipation in the ROTC and to recruit aggressively in minority communities. President's Comm. on Equality of Treatment& Opportunity in the Armed Servs., Freedom to Serve: Equality of Treatment and Opportunity in the Armed Services (1950),reprinted in Blacks in the Military: Essential Documents 275-76 (B. Nalty & M. MacGregor, Jr. eds., 1981).

5 African-American servicemen were looking for African-American officers both for support and as a visible indication thatthe military recognized African-Americans as valuable contributors. Hearings By the House Special Subcomm. on DisciplinaryProblems in the U.S. Navy, H.A.S.C. No. 93-13, at 595 (1972) (testimony of Commander B. W. Cloud); J. Foner, Blacks andthe Military in American History: A New Perspective 211 (1974) ( “[t]he scarcity of black officers intensified black grievances.”);id. at 223 (“[b]lack servicemen told the [NAACP] … that if black officers were placed in command positions with white juniorofficers accountable to them, it would be a major step toward overcoming racial discrimination in the army”); Moskos &Butler, supra, at 33 (asking “[w]here was the black officer corps” of the late 1960s and early 1970s).

6 The Coast Guard has numerous programs to recruit minority applicants, including the Minority Introduction to EngineeringProgram (a free week-long program for minority students interested in engineering and otherwise eligible for theAcademy). U.S. Coast Guard Acad., MITE: Minority Introduction to Engineering, at http:// www.cga.edu/admissions/summerprogramforjuniors/mite.htm (last visited Feb. 4, 2003). Minorities represent 18% of the Academy's class of 2004. SeeU.S. Coast Guard Acad., Diversity & Retention (Oct. 2001) at http:// www.members.aol.com/_ht_a/lyndahaley/academy/statistics.htm. In addition, the Coast Guard operates the College Student Pre-Commissioning Initiative, which providestraining, tuition and stipends to college students enrolled in historically African-American colleges and universities, HispanicAssociation of Colleges and Universities schools, and other approved institutions. See U.S. Coast Guard, College Student Pre-Commissioning Initiative (CSPI), at http://www.uscg.mil/jobs/cspi.html (last visited Feb. 4, 2003). The program is designed

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to increase minority junior officers in the Guard. See L. Healy, Learning to Lead, Military News, June 18, 2001. As of March2002, minority officers constituted 13.7% of the Coast Guard officer corps. See DoD Report at 4.

7 Army preparatory school graduates “leave West Point with somewhat lower than average GPAs, but with better ratings onvarious other leadership measures that military academies prize. And 78 percent of [preparatory school] alumni graduatedfrom West Point in four years, a half-pereentage point higher than average.” D. Dickerson, How To Keep Elite CollegesDiverse, U.S. News & World Rep., Jan. 5, 1998, at 15.

8 See Office of the Assistant Sec'y of Def., Population Representation in the Military Servs., tbl. 4.3 (Nov. 2001), available athttp:// www.dod.mil/prhome/poprep2000/html/chapter4/chapter4_3.htm. This number excludes so-called direct appointmentsfor professionals (medical and legal professionals and clergy).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

No. 17-35105

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,Plaintiffs-Appellees,

v.

DONALD J. TRUMP, et al.,Defendants-Appellants.

On Appeal from an Order of the United StatesDistrict Court for the Western District of Washington

United States District Judge James L. RobartCase No. 2:17-cv-00141-JLR

BRIEF OF TECHNOLOGY COMPANIES ANDOTHER BUSINESSES AS AMICI CURIAE

IN SUPPORT OF APPELLEES

Andrew J. PincusPaul W. HughesMAYER BROWN LLP1999 K Street N.W.Washington, D.C. 20006(202) 263-3000

Counsel for Amici Curiae

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i

CORPORATE DISCLOSURE STATEMENTS

Amici curiae submit their corporate disclosure statements, as required by

Fed. R. App. P. 26.1 and 29(c), in Appendix B.

/s/ Paul W. HughesFebruary 5, 2017 Paul W. Hughes

Attorney for Amici Curiae

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ii

TABLE OF CONTENTS

Interest of Amici Curiae.............................................................................................1

Argument....................................................................................................................1

I. American Innovation And Economic Growth Are Intimately Tied ToImmigration........................................................................................................4

II. The Executive Order Harms The Competitiveness Of U.S. Companies ...........8

III. The Executive Order Is Unlawful ....................................................................13

A. The Order discriminates on the basis of nationality ...................................13

B. The Order exercises discretion arbitrarily...................................................16

Conclusion ...............................................................................................................20

Appendix A - List of Amici Curiae..........................................................................1a

Appendix B - Corporate Disclosures for Amici Curiae..........................................6a

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iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. United States,132 S. Ct. 2492 (2012)........................................................................................16

Aziz v. Trump,17-cv-116 (E.D. Va. Feb. 1, 2017) .......................................................................9

Bertrand v. Sava,684 F.2d 204 (2d Cir. 1982) ...............................................................................15

Coates v. City of Cincinnati,402 U.S. 611 (1971)............................................................................................19

FCC v. League of Women Voters of Cal.,468 U.S. 364 (1984)............................................................................................18

Foley v. Connelie,435 U.S. 291 (1978)..............................................................................................1

Grayned v. City of Rockford,408 U.S. 104 (1972)................................................................................17, 19, 20

Judulang v. Holder,565 U.S. 42 (2011)..............................................................................................16

United States ex rel. Knauff v. Shaughnessy,338 U.S. 537 (1950)................................................................................16, 17, 18

Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,45 F.3d 469 (D.C. Cir. 1995)..............................................................................14

Mojica v. Reno,970 F. Supp. 130 (E.D.N.Y. 1997) .......................................................................7

Olsen v. Albright,990 F. Supp. 31 (D.D.C. 1997)...........................................................................15

Rosenberg v. Fleuti,374 U.S. 449 (1963)......................................................................................16, 20

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iv

Wong Wing Hang v. INS,360 F.2d 715 .......................................................................................................15

Statutes and Rules

8 U.S.C.§ 1152(a)(1)(A).......................................................................................14, 15, 16

Fed. R. App. 29(a)(4)(E)............................................................................................1

Other Authorities

Americas Soc’y & Council of The Americas, Bringing Vitality ToMain Street (2015), https://goo.gl/i9NWc9......................................................4, 5

Anca D. Cristea, Buyer-Seller Relationships in International Trade,84 J. Int’l Econ. 207 (2011) ................................................................................11

BGRS, Breakthrough to the Future of Global Talent Mobility: GlobalMobility Trends Survey (2016), http://goo.gl/ZhIxSr.........................................11

Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief(Jan. 23, 2017), https://goo.gl/D0bRkS ..............................................................19

Dep’t of Homeland Security, Protecting The Nation From ForeignTerrorist Entry To The United States (Jan. 29, 2017),https://goo.gl/IYa1bg ............................................................................................9

Diana Furchtgott-Roth, Manhattan Institute, The Economic BenefitsOf Immigration (Feb. 2013), https://goo.gl/lsWhb5.............................................5

Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Populationin the United States (2012), https://goo.gl/PZ3pnE..............................................1

Gallup, Majority of Americans Identify Themselves as ThirdGeneration Americans (July 10, 2001), https://goo.gl/o7PRxv ...........................1

H.R. Rep. No. 89-745 (1965).............................................................................14, 16

The Hamilton Project, Ten Economic Facts About Immigration(Sept. 2010), goo.gl/3zpdpn..................................................................................6

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v

Harv. Bus. Rev., Strategic Global Mobility (2014),http://goo.gl/AV3nhJ ..........................................................................................11

Hearing before the Subcomm. on Immigration and Naturalization, S.Comm. on the Judiciary, 89th Cong., 1st Sess. (Feb. 10, 1965) ........................14

Immigration Laws and Iranian Students,4A Op. O.L.C. 133 (1979) ..................................................................................17

John F. Kennedy, A Nation of Immigrants (1958)................................................1, 2

Jonathan Shieber, Apple CEO Tim Cook Sent An Email to EmployeesAbout the Immigration Ban, TechCrunch (Jan. 28, 2017),https://goo.gl/qzXDJO ........................................................................................10

Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trump’sTravel Ban: ACLU, N.Y. Post, Jan. 19, 2017,https://goo.gl/AgcHd4...........................................................................................9

Laura King et al., Confusion Reigns at U.S. Airports as Protests ofTrump Executive Order Enter Second Day, L.A. Times,Jan. 29, 2017, goo.gl/9kSm9G..............................................................................8

Letter from Bradford L. Smith, President and Chief Legal Advisor,Microsoft, to John F. Kelly, Sec’y of Homeland Security, and RexW. Tillerson, Sec’y of State (Feb. 2, 2017), https://goo.gl/AZtcFV ..................10

Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill(Oct. 3, 1965) ........................................................................................................7

Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role ofBusiness Travel in Trade Promotion, 51 J. Travel Res. 632 (2012) ..................11

Memorandum from Donald F. McGahn II, Counsel to the President,to the Acting Sec’y of State, the Acting Att’y Gen., and the Sec’yof Homeland Security (Feb. 1, 2017), https://goo.gl/oqb9A6..............................9

Miriam Jordan et al., Donald Trump’s Immigration Order SparksConfusion, Despair at Airports, Wall St. J., Jan. 29, 2017,goo.gl/eTbrsY .......................................................................................................8

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vi

Muzaffar Chishti & Claire Bergeron, Post-9/11 Policies DramaticallyAlter the U.S. Immigration Landscape, Migration Policy Inst. (Sep.8, 2011), https://goo.gl/6rdagt ..............................................................................2

New American Economy, Reason for Reform (Oct. 2016) .......................................5

Nune Hovhannisyan & Wolfgang Keller, International BusinessTravel: An Engine of Innovation, 20 J. Econ. Growth 75 (2015) ......................11

Pew Research Center, Second-Generation Americans: A Portrait ofthe Adult Children of Immigrants (Feb. 7, 2013),https://goo.gl/SRaXxc...........................................................................................1

Pia Orrenius, Benefits of Immigration Outweigh the Costs, TheCatalyst: A Journal of Ideas from the Bush Institute (2016),https://goo.gl/qC9uOc...........................................................................................5

Partnership for a New American Economy, The “New American”Fortune 500 (2011), http://goo.gl/yc0h7u ............................................................4

Partnership for a New American Economy, Open For Business: HowImmigrants Are Driving Small Business Creation in the UnitedStates, Aug. 2012, https://goo.gl/zqwpVQ...........................................................5

S. Rep. No. 89-748 (1965) .......................................................................................14

Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An“Enormous Problem,” CNN Tech (Jan. 30, 2017),https://goo.gl/vNVgLt.........................................................................................11

Shannon Pettypiece & Michelle Jamrisko, Trump’s Order on RefugeeLimits Draws Iran Retaliation Threat, Bloomberg Politics(Jan. 27, 2017), http://goo.gl/DKLWgf ..............................................................12

Stuart Anderson, Immigrant Flooding America with Nobel Prizes,Forbes (Oct. 16, 2016), http://goo.gl/RILwXU....................................................6

Tara Palmeri & Bryan Bender, Politico, U.S. Diplomats WarningGE’s Major Deals in Iraq at Risk over Travel Ban, Feb. 1, 2017,http://goo.gl/nhj9CZ ...........................................................................................12

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U.S. Dep’t of State, National Consortium for the Study of Terrorismand Responses to Terrorism: Annex of Statistical Information(2016)..................................................................................................................18

U.S. Dep’t of State, Office of the Historian, The Immigration Act of1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ .........................................7

Vivek Wadhwa, et al., America’s New Immigrant Entrepreneurs(2007), https://goo.gl/wCIySz ..............................................................................6

4 Woodrow Wilson, A History of the American People (1902) ...............................7

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INTEREST OF AMICI CURIAE

Amici curiae are 97 leading businesses from the technology sector and other

parts of the economy. A list of amici is set forth in Appendix A.1

ARGUMENT

America proudly describes itself as “a nation of immigrants.” Foley v.

Connelie, 435 U.S. 291, 294 (1978). We are: in 1910, 14.7% of the population was

foreign born; in 2010, 12.9%.2 A quarter of us have at least one parent who was

born outside the country.3 Close to half of us have a grandparent born somewhere

else.4 Nearly all of us trace our lineage to another country.

The “contributions of immigrants,” then-Senator John F. Kennedy explained,

“can be seen in every aspect of our national life.” John F. Kennedy, A Nation of

Immigrants 4 (1958). “We see it in religion, in politics, in business, in the arts, in

education, even in athletics and in entertainment.” Id. There is “no part of our na-

tion,” he recognized, “that has not been touched by our immigrant background.” Id.

1 Amici state that no party’s counsel authored this brief in whole or in part, thatno party or party’s counsel contributed money that was intended to fund preparingor submitting the brief, and that no person other than amici or its counsel contrib-uted money that was intended to fund preparing or submitting the brief. See Fed. R.App. 29(a)(4)(E).2 Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Population in theUnited States 3 (2012), https://goo.gl/PZ3pnE.3 Pew Research Center, Second-Generation Americans: A Portrait of the AdultChildren of Immigrants 8 (Feb. 7, 2013), https://goo.gl/SRaXxc.4 Gallup, Majority of Americans Identify Themselves as Third Generation Ameri-cans (July 10, 2001), https://goo.gl/o7PRxv.

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Immigrants make many of the Nation’s greatest discoveries, and create some

of the country’s most innovative and iconic companies. Immigrants are among our

leading entrepreneurs, politicians, artists, and philanthropists. The experience and

energy of people who come to our country to seek a better life for themselves and

their children—to pursue the “American Dream”—are woven throughout the social,

political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that

we are a people descended from immigrants, that we welcome new immigrants,

and that we provide a home for refugees seeking protection. At the same time,

America has long recognized the importance of protecting ourselves against those

who would do us harm. But it has done so while maintaining our fundamental

commitment to welcoming immigrants—through increased background checks and

other controls on people seeking to enter our country.5

On January 27, 2017, President Donald J. Trump signed Executive Order

13769. See 82 Fed. Reg. 8977 (2017) (the “Order”). The Order alters immigration

policy in significant respects:

5 “In the decade since 9/11,” immigration policy has incorporated, among otherthings, “major new border security and law enforcement initiatives, heightened vi-sa controls and screening of international travelers and would-be immigrants, thecollection and storage of information in vast new interoperable databases used bylaw enforcement and intelligence agencies, and the use of state and local law en-forcement as force multipliers in immigration enforcement.” Muzaffar Chishti &Claire Bergeron, Post-9/11 Policies Dramatically Alter the U.S. ImmigrationLandscape, Migration Policy Inst. (Sep. 8, 2011), https://goo.gl/6rdagt.

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Seven-nation entry bar: for a period of at least 90 days, nationals of seven na-tions—Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan—are barred fromentering the United States. Order § 3(c).

Potential expansion of entry bar: the Order indicates that this entry bar couldbe lengthened, and may be expanded to include individuals from any countrythat is determined, based on unspecified criteria, not to provide sufficient in-formation to the United States. Id. § 3(e)-(f).

Waivers based on unconstrained discretion: the Order permits the Secretariesof State and Homeland Security to exercise discretion in issuing visas to nation-als from the seven affected countries “on a case-by-case basis.” Id. § 3(g).

Refugee suspension: for a period of at least 120 days, the United States is sus-pending the Refugee Admissions Program. Id. § 5(a). If the Refugee AdmissionProgram resumes, the Secretary of Homeland Security is to “prioritize refugeeclaims made by individuals on the basis of religious-based persecution, provid-ed that the religion of the individual is a minority religion in the individual’scountry of nationality.” Id. § 5(b).

The Order effects a sudden shift in the rules governing entry into the United

States, and is inflicting substantial harm on U.S. companies. It hinders the ability

of American companies to attract great talent; increases costs imposed on business;

makes it more difficult for American firms to compete in the international market-

place; and gives global enterprises a new, significant incentive to build opera-

tions—and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Con-

gress prohibited discrimination on the basis of national origin precisely so that the

Nation could not shut its doors to immigrants based on where they come from.

Moreover, any discretion under the immigration laws must be exercised reasonably,

and subject to meaningful constraints.

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I. American Innovation And Economic Growth Are Intimately Tied ToImmigration.

The tremendous impact of immigrants on America—and on American busi-

ness—is not happenstance. People who choose to leave everything that is familiar

and journey to an unknown land to make a new life necessarily are endowed with

drive, creativity, determination—and just plain guts. The energy they bring to

America is a key reason why the American economy has been the greatest engine

of prosperity and innovation in history.

Immigrants are leading entrepreneurs. “The American economy stands apart

because, more than any other place on earth, talented people from around the globe

want to come here to start their businesses.” Partnership for a New American

Economy, The “New American” Fortune 500, at 5 (2011), http://goo.gl/yc0h7u.

Some of these businesses are large. Immigrants or their children founded

more than 200 of the companies on the Fortune 500 list, including Apple, Kraft,

Ford, General Electric, AT&T, Google, McDonald’s, Boeing, and Disney. Id. at 1.

Collectively, these companies generate annual revenue of $4.2 trillion, and employ

millions of Americans. Id. at 2.

Many of these businesses are small. “While accounting for 16 percent of the

labor force nationally and 18 percent of business owners, immigrants make up 28

percent of Main Street business owners.” Americas Soc’y & Council of The

Americas, Bringing Vitality To Main Street (2015), https://goo.gl/i9NWc9. These

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are “the shops and services that are the backbone of neighborhoods around the

country.” Id. Between 2006 and 2010, immigrants opened 28% of all new busi-

nesses in the United States. See Partnership for a New American Economy, Open

For Business: How Immigrants Are Driving Small Business Creation in the United

States 3, Aug. 2012, https://goo.gl/zqwpVQ.

Immigrant-entrepreneurs come from all parts of the world. In 2014, “19.1

percent of immigrants from the Middle East and North Africa were entrepreneurs.”

New American Economy, Reason for Reform 2 (Oct. 2016),

https://goo.gl/32dLNM.

Immigrants also fuel the growth of the economy as a whole. “When immi-

grants enter the labor force, they increase the productive capacity of the economy

and raise GDP. Their incomes rise, but so do those of natives.” Pia Orrenius, Bene-

fits of Immigration Outweigh the Costs, The Catalyst: A Journal of Ideas from the

Bush Institute (2016), https://goo.gl/qC9uOc. Immigrants do not take jobs away

from U.S. citizens—they create them. Thus, immigration “expand[s] the American

work-force, and encourage[s] more business start-ups”—ensuring that

“[b]usinesses ranging from Apple Corporation to apple growers would be able to

find the workers they need in America.” Diana Furchtgott-Roth, Manhattan Insti-

tute, The Economic Benefits Of Immigration 1 (Feb. 2013), https://goo.gl/lsWhb5.

Immigrants are innovators. Since 2000, more than one-third of all American

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Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants.

See Stuart Anderson, Immigrant Flooding America with Nobel Prizes, Forbes (Oct.

16, 2016), http://goo.gl/RILwXU. Among individuals with advanced educational

degrees, immigrants are nearly three times more likely to file patents than U.S.-

born citizens. Michael Greenstone & Adam Looney, The Hamilton Project, Ten

Economic Facts About Immigration 11 (Sept. 2010), https://goo.gl/3zpdpn. By one

estimate, non-citizen immigrants were named on almost a quarter of all U.S.-based

international patent applications filed in 2006. Vivek Wadhwa et al., America’s

New Immigrant Entrepreneurs 4 (Jan. 4, 2007), https://goo.gl/wCIySz. Inventions

and discoveries by immigrants have profoundly changed our Nation. Some, like

alternating current (Nikola Tesla), power our world. Others, like nuclear magnetic

resonance (Isidore Rabi) and flame-retardant fiber (Giuliana Tesoro), save lives.

And yet others, like basketball (James Naismith), blue jeans (Levi Strauss), and the

hot dog (Charles Feltman), are integral to our national identity.

America’s success in attracting and incorporating immigrants into our socie-

ty is unrivaled in the world. To be sure, America has in the past deviated from this

ideal. Woodrow Wilson in 1901 decried the immigration to the United States of

“multitudes of men of the lowest class from the south of Italy and men of the

meanest sort out of Hungary and Poland, men out of the ranks, where there was

neither skill nor energy nor any initiative of quick intelligence, and they came in

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numbers which increased from year to year, as if the countries of the south of Eu-

rope were disburdening themselves of the more sordid and hapless elements of

their population.” 4 Woodrow Wilson, A History of the American People 212-13

(1902). The Immigration Act of 1917 (also known as the Literacy Act) barred im-

migration from parts of Asia. And in 1924, the Johnson-Reed Act significantly re-

stricted Italian and Jewish immigration to the United States in an effort to “pre-

serve the ideal of U.S. homogeneity.” U.S. Dep’t of State, Office of the Historian,

The Immigration Act of 1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ.

But the march of time has discredited these laws and policies. Since World

War II, American immigration policy has been one of “tolerance, equality and

openness” in which “the United States has revived its traditional rhetoric of wel-

come—and matched its words with action.” Mojica v. Reno, 970 F. Supp. 130, 145

(E.D.N.Y. 1997).

When President Johnson signed the Immigration and Nationality Act in

1965—the law establishing the immigration framework that remains today, includ-

ing the elimination of national quotas, he stated:

America was built by a nation of strangers…. And from this experi-ence, almost unique in the history of nations, has come America’s atti-tude toward the rest of the world. We, because of what we are, feelsafer and stronger in a world as varied as the people who make it up—a world where no country rules another and all countries can deal withthe basic problems of human dignity and deal with those problems intheir own way.

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Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965).

These principles have defined American immigration policy for the past 50

years. The beneficiaries are not just the new immigrants who chose to come to our

shores, but American businesses, workers, and consumers, who gain immense ad-

vantages from immigrants’ infusion of talents, energy, and opportunity.

II. The Executive Order Harms The Competitiveness Of U.S. Companies.

The Executive Order abandons those principles—and inflicts significant

harm on American business, innovation, and growth as a result. The Order makes

it more difficult and expensive for U.S. companies to recruit, hire, and retain some

of the world’s best employees. It disrupts ongoing business operations. And it

threatens companies’ ability to attract talent, business, and investment to the Unit-

ed States.

1. The Order threatens the long-standing stability of the U.S. immigration

laws, which have been marked by clear, settled standards and constrained discre-

tion—introducing sudden changes without notice, unclear standards for implemen-

tation, and no standards for the exercise of waiver authority. That shift deprives

employees and businesses of the predictability they require.

The uncertainty became apparent as soon as the Order was issued. Officials

at U.S. airports struggled to implement it.6 After several courts temporarily en-

6 See, e.g., Laura King et al., Confusion Reigns at U.S. Airports as Protests of

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joined the Order, government officials reportedly did not comply.7

This confusion appears to be a consequence of the sudden issuance of the

Order, without public notice and without following the normal channels for gov-

ernment review. Because the Order denies entry to all “aliens” from the seven tar-

geted countries, Order § 3(c), government officials initially excluded lawful per-

manent residents (LPRs) from the country; within two days, the Department of

Homeland Security changed course and exempted LPRs from the Order’s scope;8

then, four days later, the Counsel to the President reversed course again and

claimed that the Order did not (despite its plain text) apply to LPRs in the first

place.9

The Order establishes a system of “case-by-case” exceptions, but does not

immigration officers appear to have unconstrained discretion in issuing exceptions,

Trump Executive Order Enter Second Day, L.A. Times, Jan. 29, 2017,goo.gl/9kSm9G; Miriam Jordan et al., Donald Trump’s Immigration Order SparksConfusion, Despair at Airports, Wall St. J., Jan. 29, 2017, http://goo.gl/eTbrsY.7 See, e.g., Aziz v. Trump, 17-cv-116 (E.D. Va. Feb. 1, 2017) (Dkt. No. 20) (mo-tion by Commonwealth of Virginia to hold the government in contempt);Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trump’s Travel Ban:ACLU, N.Y. Post, Jan. 19, 2017, https://goo.gl/AgcHd4.8 See, e.g., Dep’t of Homeland Security, Protecting The Nation From ForeignTerrorist Entry To The United States (Jan. 29, 2017), https://goo.gl/IYa1bg.9 Memorandum from Donald F. McGahn II, Counsel to the President, to the Act-ing Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Security(Feb. 1, 2017), https://goo.gl/oqb9A6 (“[T]o remove any confusion, I now clarifythat Sections 3(c) and 3(e) do not apply to such individuals.”).

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it is unclear what exemptions will be given, or why—and whether that authority is

being exercised fairly and without discrimination or favoritism.

If the Order stands, it is impossible for individuals and businesses to antici-

pate which countries may be affected next. The Order itself promises to ban indi-

viduals from additional countries if those nations do not provide information the

Secretary of State deems necessary to approve visas. See

The Order has had immediate, adverse effects on the employees of Ameri-

can businesses. Several major companies reported substantial disruptions from the

Order, because their employees were ensnared in the Order’s travel restrictions.10

This instability and uncertainty will make it far more difficult and expensive

for U.S. companies to hire some of the world’s best talent—and impede them from

competing in the global marketplace. Businesses and employees have little incen-

tive to go through the laborious process of sponsoring or obtaining a visa, and relo-

cating to the United States, if an employee may be unexpectedly halted at the bor-

der. Skilled individuals will not wish to immigrate to the country if they may be

cut off without warning from their spouses, grandparents, relatives, and friends—

they will not pull up roots, incur significant economic risk, and subject their family

10 See, e.g., Letter from Bradford L. Smith, President and Chief Legal Advisor,Microsoft, to John F. Kelly, Sec’y of Homeland Security, and Rex W. Tillerson,Sec’y of State, at 5 (Feb. 2, 2017), https://goo.gl/AZtcFV; Jonathan Shieber, AppleCEO Tim Cook Sent An Email to Employees About the Immigration Ban,TechCrunch (Jan. 28, 2017), https://goo.gl/qzXDJO.

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to considerable uncertainty to immigrate to the United States in the face of this in-

stability.11

2. The Order’s bans on travel are also significantly impairing day-to-day

business. The marketplace for today’s businesses is global. Companies routinely

send employees across borders for conferences, meetings, or job rotations, and in-

vite customers, clients, or users from abroad. Global mobility is critical to busi-

nesses whose customers, suppliers, users, and workforces are spread all around the

world.12

Global business travel lets employees develop new skills, take on expanded

roles, and stay abreast of new technological or business developments. It also facil-

itates new markets and business partnerships. Indeed, one study has shown that

each additional international business trip increases exports from the United States

to the visited country by, on average, over $36,000 per year.13

But the Order means that many companies and employees (both inside and

11 Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An “EnormousProblem,” CNN Tech (Jan. 30, 2017), https://goo.gl/vNVgLt (“It sends a powerfulsignal that this is not a country that wants the best people in the world.”).12 See, e.g., BGRS, Breakthrough to the Future of Global Talent Mobility: GlobalMobility Trends Survey (2016), http://goo.gl/ZhIxSr; Harv. Bus. Rev., StrategicGlobal Mobility (2014), http://goo.gl/AV3nhJ.13 Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role of BusinessTravel in Trade Promotion, 51 J. Travel Res. 632, 637 (2012); see also Anca D.Cristea, Buyer-Seller Relationships in International Trade, 84 J. Int’l Econ. 207(2011); Nune Hovhannisyan & Wolfgang Keller, International Business Travel:An Engine of Innovation, 20 J. Econ. Growth 75 (2015).

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outside the United States) are unable to take advantage of these opportunities. That

is true even for persons or countries not currently covered by the Order because

there is no way to know whether a given country may be added to the no-entry list.

The Order also could well lead to retaliatory actions by other countries,

which would seriously hinder U.S. companies’ ability to do business or negotiate

business deals abroad.14 Many companies do business in one or more of the coun-

tries currently covered by the Order. Indeed, U.S. diplomats already are reporting

that General Electric may lose out on business deals in Iraq potentially worth bil-

lions of dollars.15 Additional actions against American citizens or business will

have a further ripple effect.

3. For all of these reasons, the Order will incentivize both immigration to

and investment in foreign countries rather than the United States. Highly skilled

immigrants will be more interested in working abroad, in places where they and

their colleagues can travel freely and with assurance that their immigration status

will not suddenly be revoked. Multinational companies will have strong incentives,

including from their own employees, to base operations outside the United States

or to move or hire employees and make investments abroad. Foreign companies

14 See Shannon Pettypiece & Michelle Jamrisko, Trump’s Order on Refugee Lim-its Draws Iran Retaliation Threat, Bloomberg Politics (Jan. 27, 2017),http://goo.gl/DKLWgf.15 Tara Palmeri & Bryan Bender, U.S. Diplomats Warning GE’s Major Deals inIraq at Risk over Travel Ban, Politico (Feb. 1, 2017), http://goo.gl/nhj9CZ.

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will have significantly less incentive to establish operations in the United States

and hire American citizens, because the Order will preclude the ability of those

companies to employ their world-class talent within their U.S. subsidiaries. Ulti-

mately, American workers and the economy will suffer as a result.

Of course, the federal government can and should implement targeted, ap-

propriate adjustments to the nation’s immigration system to enhance the Nation’s

security. But a broad, open-ended ban—together with an indication that the ban

could be expanded to other countries without notice—does not fit the goal of mak-

ing the country more secure. Instead, it will undermine American interests.

III. The Executive Order Is Unlawful.

The problems that render the Executive Order harmful to businesses and

their employees also make it unlawful. Fairness, regularity, and predictability are

core principles of immigration law and of U.S. law generally.

A. The Order discriminates on the basis of nationality.

Immigration law contains a clear command: in issuing visas and making

admission decisions, immigration officials cannot discriminate based on an alien’s

nationality, race, sex, or any other invidious classification. The Order violates that

commitment, and harms the Nation’s economy and competitiveness in the process.

Congress first codified an antidiscrimination requirement in the immigration

laws in 1965. For four decades before that, U.S. immigration was governed by the

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“national origin system,” a set of discriminatory quotas under which “the selection

of immigrants was based upon race and place of birth.” H.R. Rep. No. 89-745, at

8-10 (1965). As President Johnson explained in 1965, this system was not just “in-

compatible with our basic American tradition”; “too often,” he added, “it arbitrari-

ly denie[d] us immigrants who ha[d] outstanding and sorely needed talents and

skills.” Id. at 11-12. Many others echoed these views.16

Congress agreed. That year, it “aboli[shed] … the national origins system”

and replaced it with one based largely upon “the advantage to the United States of

the special talents and skills of an immigrant.” Id. at 18; see S. Rep. No. 89-748, at

10 (1965). To make this reform effective, Congress enacted 8 U.S.C.

§ 1152(a)(1)(A), a sweeping antidiscrimination rule providing that “no person shall

… be discriminated against in the issuance of an immigrant visa because of the

person’s race, sex, nationality, place of birth, or place of residence.” As the D.C.

Circuit has observed, “Congress could hardly have chosen more explicit lan-

guage.” Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 45 F.3d

469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). It “unam-

biguously directed that no nationality-based discrimination shall occur.” Id.

16 See Hearing before the Subcomm. on Immigration and Naturalization, S. Comm.on the Judiciary, 89th Cong., 1st Sess. 8 (Feb. 10, 1965) (statement of Att’y Gen.Katzenbach) (“[W]e are depriving ourselves of brilliant, accomplished, and skilledresidents of foreign countries who want to bring their talents here.”).

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This clear directive is reinforced by other antidiscrimination requirements.

Since 1966, federal courts have categorically held that discretion under the immi-

gration laws “may not be exercised to discriminate invidiously” against any “race

or group,” even if that group is not specifically named in section 1152(a)(1)(A).

Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.); see also

Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir. 1982) (“Invidious discrimination

against a particular race or group … is a type of irrational conduct generally not

countenanced by our law.”). The Equal Protection Clause bars all federal officials,

including the President, from treating individuals differently because of their na-

tional origin.

The Order violates these basic precepts. It bars anyone from seven countries

from immigrating to the United States for a period of 90 days, and provides that

the President may indefinitely bar immigration from other countries, as well. Order

Constitution prohibit: it discriminates against immigrants on the basis of nationali-

ty. See Olsen v. Albright, 990 F. Supp. 31, 39 (D.D.C. 1997) (“The principle that

government must not discriminate against particular individuals because of the

color of their skin or the place of their birth means that the use of generalizations

based on these factors [in the immigration context] is unfair and unjustified.”).

In so doing, the Executive Order revives a form of the discriminatory and

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costly “national origin system” that Congress abolished in 1965. Although the ra-

tionale for the Order differs from that system’s, its basic contours are nearly the

same: a system of priority “based upon … place of birth.” H.R. Rep. No. 89-745, at

10. And its costs will be much the same, too. It will deprive the United States of

some of the best and brightest; needlessly break up families; and betray “our basic

American tradition.” Id. at 11. In 1965, Congress enacted section 1152(a)(1)(A) to

stop these harms and base admission decisions instead on an immigrant’s “special

talents and skills,” id. at 18—a decent and fair policy that has served the Nation, its

businesses, and its immigrants well for half a century.

B. The Order exercises discretion arbitrarily.

The Order is also contrary to the immigration laws’ and the Constitution’s

insistence that discretion must be reasonably exercised and adequately constrained.

Numerous provisions of the immigration laws vest Executive officials with “broad

discretion” to admit, deport, or deny entry to foreign nationals. Arizona v. United

States, 132 S. Ct. 2492, 2499 (2012). But Congress and the courts have long rec-

ognized that everyone—from the President to individual immigration officers—

must exercise his or her discretion in a rational manner that accords with the poli-

cies of the immigration laws. See, e.g., Judulang v. Holder, 565 U.S. 42, 58-59

(2011); Rosenberg v. Fleuti, 374 U.S. 449, 455 (1963); United States ex rel. Knauff

v. Shaughnessy, 338 U.S. 537, 544 (1950).

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Moreover, the Due Process Clause demands that every grant of discretion

“provide explicit standards” so that officers will not act “on an ad hoc and subjec-

tive basis.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). These safe-

guards ensure that the immigration laws are not enforced in an “arbitrary and dis-

criminatory” manner, id. at 109, and that immigrants, their families, and their em-

ployers are afforded consistent and predictable treatment at the hands of the Feder-

al Government. The Executive Order fails to satisfy that standard in two significant

respects.

1. The Order issues an overbroad, seven-country ban on immigration that

lacks any basis in precedent. The Order justifies this ban by citing 8 U.S.C.

aliens” whose entry he finds “would be detrimental to the interests of the United

States.” Like other grants of discretion under the immigration laws, however, that

power is not unbounded. As the Office of Legal Counsel—the President’s own le-

gal adviser—has explained, any suspension the President makes under this provi-

sion “must meet the test of ‘reasonableness.’” U.S. Dep’t of Justice, Immigration

Laws and Iranian Students, 4A Op. O.L.C. 133, 140 (1979). Other immigration

provisions reinforce that conclusion: section 1185(a)(1) provides that aliens may

not “enter the United States except under such reasonable rules, regulations, and

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while in Knauff the Supreme Court reviewed whether an order suspending entry

was “reasonable in the circumstances of the period for which [it was] authorized,”

338 U.S. at 544 (emphasis added).

The Order is not “reasonable” in scope. The Order says that its purpose is to

imposes applies to millions of individuals who could not plausibly be foreign ter-

rorists: hundreds of thousands of students, employees, and family members of citi-

zens who have already been admitted to the United States; thousands of visa-

holders who have already passed the Nation’s rigorous screening process; and

countless peaceful individuals residing or born in the targeted countries. The Order

is also under-inclusive with respect to its goal; a number of countries left off the

list have a greater incidence of terrorist attacks than the seven the Order includes.17

There is a mismatch between means and ends. See, e.g., FCC v. League of Women

Voters of Cal., 468 U.S. 364, 396 (1984).

There is no precedent for an order like this one in magnitude or kind. Since

section 1182(f) was enacted in 1952, Presidents have invoked the provision dozens

of times. But in every prior instance, Presidents issued a targeted restriction on en-

try—usually limited to dozens or hundreds of individuals—based on the determi-

17 See U.S. Dep’t of State, National Consortium for the Study of Terrorism andResponses to Terrorism: Annex of Statistical Information 5 (2016) (listing top 10countries with most terrorist attacks, of which only three are included in the order).

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nation that each affected individual had engaged in culpable conduct, such as hu-

man trafficking, illegal entry, or corruption. See Cong. Research Serv., Executive

Authority to Exclude Aliens: In Brief 6-10 (Jan. 23, 2017), https://goo.gl/D0bRkS

(listing each previous order). No order before this one imposed a categorical ban of

hundreds of millions of foreign nationals.

The Order also introduces severe uncertainty into the immigration system. If

this approach were upheld, future orders might apply to any nation, and suddenly

and unexpectedly bar its nationals from entering or returning to the United States.

That severely undermines immigrants’ and businesses’ ability to make plans, con-

duct business, or manage any affairs involving non-citizens.

2. The Executive Order vests immigration officials with open-ended discre-

tion to make exceptions to the immigration ban, as to both visa holders (Order §

3(g)) and refugees (id. § 5(e)).

These provisions establish precisely the sort of arbitrary enforcement

scheme that both the Due Process Clause and the immigration laws prohibit. It is

inconceivable that thousands of border patrol and consular officers, adjudicating

millions of visa applications and requests for entry around the globe, will agree

even in broad terms when admission is “in the national interest.”18

18 Grayned, 408 U.S. at 108-09 (due process forbids laws that “delegate[] basicpolicy matters … for resolution on an ad hoc and subjective basis”); Coates v. Cityof Cincinnati, 402 U.S. 611, 614 (1971) (invalidating ordinance whose enforce-

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Regrettably, some immigration officers could use their discretion improper-

ly—engaging in profiling or favoritism, for instance, or in “arbitrary and discrimi-

natory enforcement.” Grayned, 408 U.S. at 108. Yet the Order provides no system

to police such inconsistency or abuse; to the contrary, it states that every exercise

of discretion be “case-by-case,” and purports to block judicial review of officers’

decisions entirely. See Order

right or benefit, substantive or procedural, enforceable at law or in equity by any

person”).

For any immigrant ensnared in this system, the prospect of entry becomes a

“sport of chance.” Rosenberg, 374 U.S. at 460. Immigrants, family members, and

businesses deserve much better—and Congress and the Constitution entitle them to

an immigration system that is administered reasonably, non-arbitrarily, and in ac-

cord with statutory requirements. The Order contravenes that bedrock guarantee.

CONCLUSION

The Court should deny Appellants’ motion.

ment “entirely depend[ed] upon whether or not a policeman is annoyed”).

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Respectfully submitted.

/s/ Andrew J. PincusAndrew J. PincusPaul W. HughesMAYER BROWN LLP1999 K Street, N.W.Washington, D.C. 20006(202) 263-3000apincus@mayerbrown.comphughes@mayerbrown.com

Counsel for Amici Curiae

Dated: February 5, 2017

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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the under-

signed counsel certifies that this brief:

(i) complies with the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6) because it has been prepared using Microsoft

Office Word 2007 and is set in Times New Roman font in a size equivalent to 14

points or larger and,

(ii) amici have requested leave to file a 20-page brief.

Dated: February 5, 2017 /s/ Paul W. HughesPaul W. HughesMAYER BROWN LLP

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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February 2017, I filed the foregoing

Brief of Technology Companies and Other Businesses As Amici Curiae in Support

of Appellees via the CM/ECF system and served the foregoing via the CM/ECF

system on all counsel who are registered CM/ECF users.

Dated: February 5, 2017 /s/ Paul W. HughesPaul W. HughesMAYER BROWN LLP

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APPENDIX A

LIST OF AMICI CURIAE

1. AdRoll, Inc.

2. Aeris Communications, Inc.

3. Airbnb, Inc.

4. AltSchool, PBC

5. Ancestry.com, LLC

6. Appboy, Inc.

7. Apple Inc.

8. AppNexus Inc.

9. Asana, Inc.

10. Atlassian Corp Plc

11. Autodesk, Inc.

12. Automattic Inc.

13. Box, Inc.

14. Brightcove Inc.

15. Brit + Co

16. CareZone Inc.

17. Castlight Health

18. Checkr, Inc.

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19. Chobani, LLC

20. Citrix Systems, Inc.

21. Cloudera, Inc.

22. Cloudflare, Inc.

23. Copia Institute

24. DocuSign, Inc.

25. DoorDash, Inc.

26. Dropbox, Inc.

27. Dynatrace LLC

28. eBay Inc.

29. Engine Advocacy

30. Etsy Inc.

31. Facebook, Inc.

32. Fastly, Inc.

33. Flipboard, Inc.

34. Foursquare Labs, Inc.

35. Fuze, Inc.

36. General Assembly

37. GitHub

38. Glassdoor, Inc.

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39. Google Inc.

40. GoPro, Inc.

41. Harmonic Inc.

42. Hipmunk, Inc.

43. Indiegogo, Inc.

44. Intel Corporation

45. JAND, Inc. d/b/a Warby Parker

46. Kargo Global, Inc.

47. Kickstarter, PBC

48. KIND, LLC

49. Knotel

50. Levi Strauss & Co.

51. LinkedIn Corporation

52. Lithium Technologies, Inc.

53. Lyft, Inc.

54. Mapbox, Inc.

55. Maplebear Inc. d/b/a Instacart

56. Marin Software Incorporated

57. Medallia, Inc.

58. A Medium Corporation

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59. Meetup, Inc.

60. Microsoft Corporation

61. Motivate International Inc.

62. Mozilla Corporation

63. Netflix, Inc.

64. NETGEAR, Inc.

65. NewsCred, Inc.

66. Patreon, Inc.

67. PayPal Holdings, Inc.

68. Pinterest, Inc.

69. Quora, Inc.

70. Reddit, Inc.

71. Rocket Fuel Inc.

72. SaaStr Inc.

73. Salesforce.com, Inc.

74. Scopely, Inc.

75. Shutterstock, Inc.

76. Snap Inc.

77. Spokeo, Inc.

78. Spotify USA Inc.

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79. Square, Inc.

80. Squarespace, Inc.

81. Strava, Inc.

82. Stripe, Inc.

83. SurveyMonkey Inc.

84. TaskRabbit, Inc

85. Tech:NYC

86. Thumbtack, Inc.

87. Turn Inc.

88. Twilio Inc.

89. Twitter Inc.

90. Turn Inc.

91. Uber Technologies, Inc.

92. Via

93. Wikimedia Foundation, Inc.

94. Workday

95. Y Combinator Management, LLC

96. Yelp Inc.

97. Zynga Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THE MARSHALL COUNTY COAL COMPANY, THE MARION COUNTY COAL COMPANY, THE HARRISON COUNTY COAL COMPANY, THE OHIO COUNTY COAL COMPANY, MURRAY ENERGY CORPORATION, and ROBERT E. MURRAY, Plaintiffs, v. JOHN OLIVER, CHARLES WILSON, PARTIALLY IMPORTANT PRODUCTIONS, LLC, HOME BOX OFFICE, INC., TIME WARNER INC., AND DOES 1through 10, Defendants.

Civil Action No: 17-cv-00099 Hon. John P. Bailey

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION OF WEST

VIRGINIA FOUNDATION IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND IN SUPPORT OF DISMISSAL AND

RULE 11 SANCTIONS

Case 5:17-cv-00099-JPB Document 26-1 Filed 08/01/17 Page 1 of 16 PageID #: 921

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TABLE OF CONTENTS

I. Interest of Amicus Curiae & Required Disclosures. ............................................................... 1

II. A Brief History of Plaintiffs’ Attempts to Chill Speech by Abusing the Legal System. .... 1

A. Plaintiffs Frequently Abuse the Legal System to Attack Protected Speech. ....................... 2

B. The Ridiculous Case at Hand. .............................................................................................. 2

III. Anyone Can Legally Say “Eat Shit, Bob!” .......................................................................... 5

A. Plaintiffs’ Motion for a Temporary Restraining Order is Ridiculous. Courts Can’t Tell

Media Companies How to Report, Bob. ..................................................................................... 5

1. All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue

People for Being Mean to You, Bob. ...................................................................................... 5

2. Plaintiff’s Requested Injunction is Clearly Unconstitutional. You Can’t Get a Court

Order Telling the Press How to Cover Stories, Bob................................................................ 8

B. The Court Should Dismiss This Action & Assess Sanctions. ........................................... 10

IV. Conclusion ......................................................................................................................... 10

 

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TABLE OF AUTHORITIES

Cases

Alexander v. United States, 509 U.S. 544, 550 (1993) ................................................................... 9 Arrington v. Palmer, 971 P.2d 669 (Colo. App. 1998) ................................................................... 6 Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987) ........................................................................ 10 Connick v. Myers, 461 U.S. 138, 145 (1983) .................................................................................. 2 Cox Broad. Corp. v. Cohn, 420 U.S. 469, 489–90 (1975) .............................................................. 6 Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 699 (1984) ................................................ 7 Desert Sun Pub. Co. v. Superior Court, 158 Cal. Rptr. 519, 521 (Ct. App. 1979) ......................... 8 Doe v. Gonzales, 386 F. Supp. 2d 66, 75 (D. Conn. 2005) ............................................................. 9 FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) ................................................................ 7 Fletcher v. San Jose Mercury News, 264 Cal. Rptr. 699, 708 (Ct. App. 1989) .............................. 8 Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) ......................................................................... 6 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .......................................................................... 6 Hustler Magazine v. Falwell, 485 U.S. 46, 51-52 (1988) ............................................................... 8 In re Charlotte Observer, 882 F.2d 850, 855 (4th Cir. 1989) ......................................................... 9 In re Kunstler, 914 F.2d 505, 522 (4th Cir. 1990) ........................................................................ 10 Milkovich v. Lorain Journal, 497 U.S. 1, 14, 16 (1990) ................................................................. 6 Moore v. City of Kilgore, 877 F.2d 364, 380 (5th Cir. 1989) ....................................................... 10 Murray Energy Holdings Co. v. Bloomberg, No. 2:15-CV-2845 (S.D. Ohio June 17, 2016)........ 2 Murray Energy Holdings Co. v. Mergermarket USA, Inc., No. 2:15-CV-2844, 2016 WL 3365422

(S.D. Ohio June 17, 2016) ........................................................................................................... 2 Murray v. Chagrin Valley Publishing Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014) ....................... 2 Murray v. Knight-Ridder, Inc., No. 02 BE 45, 2004 WL 333250 (Ohio Ct. App. Feb. 18, 2004) . 2 Murray v. Moyers, No. 2:14-CV-02334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2015) ............. 2 Murray v. Tarley, No. C2-01-693, 2002 WL 484537 (S.D. Ohio Feb. 21, 2002) .......................... 2 Murray v. The HuffingtonPost.com, Inc., 21 F. Supp. 3d 879 (S.D. Ohio 2014) ..................... 2, 10 Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) .......................................................... 9 Rankin v. McPherson, 483 U.S. 378, 387 (1987) ........................................................................... 7 Snyder v. Phelps, 562 U.S. 443 (2011) ........................................................................................... 8 Street v. New York, 394 U.S. 576, 592 (1969) ................................................................................ 7 Texas v. Johnson, 491 U.S. 397 (1988) ...................................................................................... 4, 7

Other Authorities

Coal Operator Sues Beacon Journal Over Portrayal of Him in Article, ATHENS NEWS, (Jan. 29, 2001),........................................................................................................................................... 7

Jonathan Peters, A Coal Magnate’s Latest Lawsuit Was Tossed—But Ohio Can Do More to Defend Free Expression, Columbia Journalism Review (May 28, 2014), .................................. 2

Lauren Carroll, In Context: Hillary Clinton’s Comments About Coal Jobs, Politifact (May 10, 2016),........................................................................................................................................... 3

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Matthew Wisner, Robert Murray on John Oliver: Radical Elitists’ Broadcast Operative, Fox News ............................................................................................................................................ 4

Mike Masnick, Bob Murray’s Lawsuit Against John Oliver Is Even Sillier Than We Expected, Tech Dirt (June 23, 2017) ........................................................................................................... 5

Pierre Pavia, Dr Evil in 1 Million Dollars, YOUTUBE, (Jul 11, 2008), .......................................... 7 Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ............................................... 9 United States Census Bureau, Quick Facts: West Virginia,

https://www.census.gov/quickfacts/WV (last visited Aug. 1, 2017) (estimating the West Virginia population to be approximately 1,831,102 as of July 1, 2016) ..................................... 9

United States v. Playboy Entm’t Group, 529 U.S. 803, 818 (2000) ............................................... 9

Rules

Fed. R. Civ. P. 12(b)(6)................................................................................................................... 2 Federal Rule of Civil Procedure 29(a) ............................................................................................ 1

Constitutional Provisions

U.S. Const. amend. I ................................................................................................................... 1, 5 W. Va. Const. art. III, § 7 ................................................................................................................ 1

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I. Interest of Amicus Curiae & Required Disclosures.

The ACLU-WV is a nonprofit, nonpartisan organization dedicated to the principles of

liberty and equality embodied in the United States Constitution, the West Virginia Constitution,

and our nation’s civil rights laws. The ACLU-WV has long been dedicated to protecting the

freedom of speech enshrined in the First Amendment to the United State Constitution and Article

III, Section 7 of the West Virginia Constitution. The ACLU-WV is requesting permission to file

this brief in accordance with Federal Rule of Civil Procedure 29(a). This brief was authored by

staff counsel for the ACLU-WV and no party, party’s counsel, or other person authored any parts

of the brief or contributed money intended to fund preparing or submitting the brief.

Plaintiffs are attempting to use this Court as vehicle to chill protected speech and silence

the marketplace of ideas. For the following reasons, the American Civil Liberties Union of West

Virginia Foundation (“ACLU-WV”) respectfully requests the Court deny Plaintiffs’ Motion for a

Temporary Restraining Order and Preliminary Injunction (“Pl.’s Mot.”) [Docket 1-1] and issue an

Order to Show Cause as to why this case should not be dismissed and Plaintiffs sanctioned.

II. A Brief History of Plaintiffs’ Attempts to Chill Speech by Abusing the Legal System.

This case is about Plaintiff Robert E. (“Bob”) Murray not liking a television program and

somehow believing that is a legally actionable offense. On June 18, 2017, Defendant Home Box

Office, Inc. aired an episode of “Last Week Tonight with John Oliver,” a satirical news program

about current events. The main topic discussed in the episode was coal. Apparently because

Plaintiffs’ delicate sensibilities were offended, they clutched their pearls and filed this suit.

Although this brief pokes fun at the absurdity of this case, the legal issues raised by it are

anything but comical. This lawsuit, and Plaintiffs’ frequent attempts to use our legal system to

chill speech, threaten the fundamental right of the media to criticize public figures and speak

candidly on matters of public concern. Speech on a matter of public concern “occupies the highest

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rung of the hierarchy of First Amendment values, and is entitled to speech protection.” Connick v.

Myers, 461 U.S. 138, 145 (1983).

A. Plaintiffs Frequently Abuse the Legal System to Attack Protected Speech.

It is a basic concept of free speech that you do not get to sue media organizations because

you don’t like their coverage. However, this is apparently a difficult concept for Plaintiffs to grasp.

It appears that Bob Murray’s favorite hobby is suing and/or threatening to sue people for making

political statements he disagrees with. See Murray v. Tarley, No. C2-01-693, 2002 WL 484537

(S.D. Ohio Feb. 21, 2002) (dismissing defamation action); Murray v. Knight-Ridder, Inc., No. 02

BE 45, 2004 WL 333250 (Ohio Ct. App. Feb. 18, 2004) (same); Murray v. The

HuffingtonPost.com, Inc., 21 F. Supp. 3d 879 (S.D. Ohio 2014) (same); Murray v. Chagrin Valley

Publishing Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014) (affirming dismissal); Murray v. Moyers,

No. 2:14-CV-02334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2015) (dismissing defamation

claim); Murray Energy Holdings Co. v. Mergermarket USA, Inc., No. 2:15-CV-2844, 2016 WL

3365422 (S.D. Ohio June 17, 2016) (same); Murray Energy Holdings Co. v. Bloomberg, No. 2:15-

CV-2845 (S.D. Ohio June 17, 2016) (same); Jonathan Peters, A Coal Magnate’s Latest Lawsuit

Was Tossed—But Ohio Can Do More to Defend Free Expression, Columbia Journalism Review

(May 28, 2014), http://archives.cjr.org/united_states_project/murray_energy_defamation_

lawsuits_huffington_post.php). After this long list of losses in Ohio, it appears that Bob Murray

has now decided to try his luck with abusing West Virginia’s court system.

B. The Ridiculous Case at Hand.

Plaintiffs’ claim does not come close to stating a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). Among the myriad of entirely legal activities contained in Plaintiffs’

petty list of grievances are the following:

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Defendants attempted “to advance their biases against the coal industry and their disdain for the coal-related policies of the Trump Administration.” Compl. [Docket 1-1], at ¶ 3.

Defendants “employed techniques designed solely to . . . embarrass Plaintiffs[.]” Id. at ¶ 5.

“Defendants childishly demeaned and disparaged Bob Murray and his companies, made jokes about Bob Murray’s age, health, and appearance, [and] made light of a tragic mining accident[.]” Id.

“Defendants are persons and organizations fundamentally opposed to any revitalization of the coal industry, having described coal as ‘environmentally catastrophic.” Id. at ¶ 18.

Defendant Time Warner “is widely reported as a top ten donor of Hillary Clinton[.]” Id.

“As a presidential candidate, Mrs. Clinton’s agenda was to ‘put a lotta [sic] coal miners and coal companies outta [sic] business.’” Id.1

“Defendants’ broadcasts have vigorously supported and advanced Mrs. Clinton’s agenda.” Id. at ¶ 19.

Instead of focusing on what Plaintiffs wanted him to talk about, Defendants “ignored them and ‘doubled-down’ . . . , ending their recorded broadcast with the phrases ‘Eat Shit, Bob’ and ‘Kiss my ass, Bob.’” Id. at ¶ 21.

“Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident.” Id. at 37.

“Defendant Oliver quoted from the sweeping executive summary of [an] MSHA report, which obviously and grossly overstated the actual conclusions contained in the MSHA report, which Defendants easily would have seen upon a cursory review of the actual MSHA report.” Id. at 40.

“Defendants . . . aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Bob Murray’s handling of the Crandall Canyon Mine collapse[.].” Id. at ¶ 42.2

                                                            1Astoundingly, despite complaining that Last Week Tonight “quoted an out-of-context snippet from a single report[,]” (see Compl. [Docket 1-1], at ¶ 39), here Plaintiffs leave in only a small portion of a longer quote, in a seeming attempt to mislead the court and/or public. Compare Compl. [Docket 1-1], at ¶ 18 with Lauren Carroll, In Context: Hillary Clinton’s Comments About Coal Jobs, POLITIFACT (May 10, 2016), http://www.politifact.com/truth-o-meter/article /2016/may/10/context-hillary-clintons-comments-about-coal-jobs/. 2 Plaintiffs’ allegation that Defendants should not have quoted directly from the conclusions of an official MSHA report or congressional testimony, the validity of which they do not dispute, is particularly outrageous.

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“[I]n reference to Bob Murray’s denial of an absurd story that Bob Murray claimed a squirrel told him he should operate his own mines, Defendant Oliver stated ‘You know what, I actually believe Murray on that one’ and “Even by your standard, that would be a pretty ridiculous thing to say.’” Id. at ¶ 44.

“Defendant Oliver . . . failed to mention, despite having the information, that Bob Murray has pioneered Emergency Response and Fire Suppression Training in the coal industry.” Id. at ¶ 50.

“Defendants [described] Bob Murray as someone who ‘looks like a geriatric Dr. Evil’ and arranging for a staff member to dress up in a squirrel costume and deliver the message “Eat Shit, Bob!” to Bob Murray. Id. at ¶ 51.

“[A]fter the live taping, Defendant Oliver exclaimed to the audience that having someone in a squirrel costume tell Bob Murray to ‘Eat Shit’ was a ‘dream come true.’”3 Id. at ¶ 52.

“Defendant Oliver stated ‘Bob Murray, I didn’t really plan for so much of this piece to be about you, but you kind of forced my hand on that one.” Id. at ¶ 53.

What Plaintiffs apparently fail to realize is that, even if all of this is true, they do not allege

Defendants did anything illegal. “The expressive, overtly political nature of this conduct was both

intentional and overwhelmingly apparent.” Texas v. Johnson, 491 U.S. 397, 406 (1988).

Ironically, the Complaint outrageously claims that Defendants “attacked [Bob Murray] in

a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to

set the record straight.” Compl. [Docket 1-1], at ¶ 2. In direct contravention to this claim, Plaintiff

Murray Energy sent out a press release about the case the very day it was filed. See Def’s Mem.,

Ex. F [Docket 14-7]. Two days later, Bob Murray was on national television calling John Oliver a

“radical elitist.” Matthew Wisner, Robert Murray on John Oliver: Radical Elitists’ Broadcast

Operative, FOX NEWS, http://www.foxbusiness.com/features/2017/06/23/robert-murray-on-john-

oliver-radical-elitists-broadcast-operative.html. No other opportunity to defend himself, indeed.

                                                            3 Everyone is allowed to have dreams.

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The Complaint also interestingly claims that “nothing has ever stressed [Bob Murray] more

than [John Oliver’s] vicious and untruthful attack.” Compl. [Docket 1-1], at ¶ 5. As one media

outlet asked, “[I]s he really saying that a late night British comedian on a premium channel has

caused him more stress than the time that one of his mines collapsed and killed a group of his

employees? If so . . . that’s . . . weird.” Mike Masnick, Bob Murray’s Lawsuit Against John Oliver

Is Even Sillier Than We Expected, TECH DIRT (June 23, 2017), https://www.techdirt.com/articles/

20170622/18172937648/bob-murrays-lawsuit-against-john-oliver-is-even-sillier-than-we-

expected.shtml.

III. Anyone Can Legally Say “Eat Shit, Bob!”

This case is beyond meritless. It is offensive to the very ideals of free speech embodied in

the First Amendment. The fact that Plaintiffs filed this case is ridiculous enough; but, to pour

gasoline on the fire, plaintiffs’ counsel has also filed a motion asking the court to make John Oliver

not say mean things about him anymore. See Pl.’s Mot. [Docket 1-1]. It is frankly shocking that

Plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional.

It is apt that one of Plaintiffs’ objections to the show is about a human-sized squirrell named

Mr. Nutterbutter, because this case is nuts. Which also begs the question: is Mr. Nutterbutter one

of the 50 Doe Defendants included in this action?

A. Plaintiffs’ Motion for a Temporary Restraining Order is Ridiculous. Courts Can’t Tell Media Companies How to Report, Bob.

1. All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue People for Being Mean to You, Bob.

Plaintiffs do not come close to stating an actionable claim. Defendants aired a broadcast

about a matter of public concern that is undoubtedly protected by the First Amendment. It is

axiomatic that “the First Amendment to the United States Constitution placed limits on the

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application of the state law of defamation” and in particular on “the type of speech which may be

the subject of state defamation actions.” Milkovich v. Lorain Journal, 497 U.S. 1, 14, 16 (1990).

The Complaint itself makes it clear that Defendants’ speech was about matters of public concern,

as it repeatedly alleges that Defendants’ broadcast this episode to advance their political agenda.

“[S]peech concerning public affairs is more than self-expression; it is the essence of self-

government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). As such, Plaintiffs’ must allege

“actual malice” in order to maintain a claim for defamation. Cox Broad. Corp. v. Cohn, 420 U.S.

469, 489–90 (1975).

As discussed above, “Last Week Tonight” is a satirical show about real news that uses

comedy and strong language to make its points. The segment Plaintiffs object to begins with John

Oliver referring to coal as, “Basically cocaine for Thomas the Tank Engine.” See Unofficial

Transcript, attached as Exhibit A, at 1. Additionally, Bob Murray objects to being compared to Dr.

Evil, a comical villain in the Austin Powers movie series and Mr. Nutterbutter, the talking squirrel.

Obviously, any “reasonable person would realize that such communications are the type of critical

commentary typically filled with political innuendo and should not be taken at face value or viewed

as a statement of fact.” Arrington v. Palmer, 971 P.2d 669, 671-74 (Colo. App. 1998). Opinions,

too, are protected speech, and “[u]nder the First Amendment, there is no such thing as a false idea.

However pernicious an opinion may seem, we depend for its correction not on the conscience of

judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323,

339-40 (1974).

It is irrelevant that Bob Murray apparently finds this protected speech offensive. “If there

is a bedrock principle underlying the First Amendment, it is that the government may not prohibit

the expression of an idea simply because society finds the idea itself offensive of disagreeable.”

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Texas v. Johnson, 491 U.S. 397, 414 (1989); see also, e.g., Street v. New York, 394 U.S. 576, 592

(1969); Rankin v. McPherson, 483 U.S. 378, 387 (1987). Indeed, “if it is the speaker’s opinion that

gives offense, that consequence is a reason for according it constitutional protection.” FCC v.

Pacifica Foundation, 438 U.S. 726, 745 (1978). And with regard to the Dr. Evil remark, 4 it should

be remembered that truth is an absolute defense to a claim of defamation. E.g. Syl. Pt. 1, Crump

v. Beckley Newspapers, Inc., 173 W. Va. 699, 699 (1984).

                                                            4 It should be noted that the very mean comparison arose from both a striking physical resemblance between the two characters and a statement by Plaintiff’s General Counsel with an uncanny similarity to statements made by a more youthful Dr. Evil. Compare Coal Operator Sues Beacon Journal Over Portrayal of Him in Article, ATHENS NEWS, (Jan. 29, 2001), https://www.athensnews.com/news/local/coal-operator-sues-beacon-journal-over-portrayal-of-him-in/article_24549e9b-de35-5b4c-b3c6-2ad29b33f694.html (Plaintiff’s General Counsel noting that although he could not legally demand one billion dollars, the figure did reflect the potential damages of the article that gave rise to that suit—this can reasonably be interpreted to mean Plaintiff’s General Counsel wanted to demand one billion dollars); with Pierre Pavia, Dr Evil in 1 Million Dollars, YOUTUBE, (Jul 11, 2008), https://www.youtube.com/watch?v=cKKHSAE1gIs (a young . . . er Dr. Evil demanding “one million dollars,” “one hundred billion dollars,” and “one billion gajillion fafillion shabadoodalooyim[inaudible]million yen”).

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The statements Plaintiffs point to are clearly not libelous—they are satire regarding a public figure

regarding a matter of public concern. As a flamethrower himself, Bob Murray should not be

shocked when his own fire occasionally inspires others to fire back. This is the very purpose of the

marketplace of ideas. See generally Snyder v. Phelps, 562 U.S. 443 (2011). The place to disagree

on important matters of public concern is the court of public opinion, not United States District

Court. See Hustler Magazine v. Falwell, 485 U.S. 46, 51-52 (1988). As one court has noted, “[o]ne

planning to engage in politics, American style, should remember the words credited to Harry S.

Truman ‘If you can’t stand the heat, get out of the kitchen.’” Desert Sun Pub. Co. v. Superior

Court, 158 Cal. Rptr. 519, 521 (Ct. App. 1979). See also, e.g., Fletcher v. San Jose Mercury News,

264 Cal. Rptr. 699, 708 (Ct. App. 1989) (statements calling plaintiff a “crook” were “merely

rhetorical and hyperbolic language” and not actionable); Arrington, 971 P.2d at 671-74.

2. Plaintiff’s Requested Injunction is Clearly Unconstitutional. You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob.

For reasons passing understanding, in addition to filing this action, Plaintiffs compounded

the abuse to our justice system and filed a motion for a temporary restraining order and preliminary

injunction. Plaintiffs request what they falsely deem the “narrow” and “limited relief” of “a

temporary restraining order, preliminary injunction, and ‘gag order’ to restrain Defendants, during

the pendency of this litigation, from (i) re-broadcasting the Defamatory Statements that are the

subject of Plaintiffs’ Complaint, and (ii) publicly discussing the substance of litigation.” Mem. In

Supp. of Pl’s Mot. for TRO (“Pl’s Mem”) [Docket 1-1], at 2, 1.

Bob Murray thinks John Oliver was mean to him, and he doesn’t want him to be mean

again. While that is sad for Bob Murray, it is unconstitutional for a court to order such relief. With

Plaintiffs’ request for a (1) prior restraint (2) that is a content-based restriction (3) on a matter of

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public concern (4) related to a public figure, they have really hit the protected speech jackpot! The

requested injunction, “actually forbid[ding] speech activities,” is a classic example of a prior

restraint. See Alexander v. United States, 509 U.S. 544, 550 (1993). All prior restraints on

expression are presumptively constitutional; prior restraints on matters of public concern are even

more so. See, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). To make matters

worse, the requested injunction is also content-based in nature, and therefore must withstand strict

scrutiny. See Doe v. Gonzales, 386 F. Supp. 2d 66, 75 (D. Conn. 2005). “It is rare that a regulation

restriction speech because of its content will ever be permissible.” United States v. Playboy Entm’t

Group, 529 U.S. 803, 818 (2000). That is because, “above all else, the First Amendment means

that government has no power to restrict expression because of its message, its ideas, its subject

matter, or its content.” Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

Plaintiffs argue that Defendants will use their “unique powers” to “access . . . millions of

West Virginians, to bias the potential jurors who will determine their fate.” Pl’s Mem. at 3. (These

special powers must include magic, as West Virginia has under 2 million residents.5) However,

although Defendants have said very little about this case, this has done nothing to stop press

coverage of this frivolous litigation—possibly due to Plaintiffs’ press releases and appearances on

Fox News. “Where closure is wholly inefficacious to prevent a perceived harm, that alone suffices

to make it constitutionally impermissible.” In re Charlotte Observer, 882 F.2d 850, 855 (4th Cir.

1989).

                                                            5 United States Census Bureau, Quick Facts: West Virginia, https://www.census.gov/quickfacts/WV (last visited Aug. 1, 2017) (estimating the West Virginia population to be approximately 1,831,102 as of July 1, 2016).

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B. The Court Should Dismiss This Action & Assess Sanctions.6

It is within the Court’s inherent authority to sua sponte issue an order to show cause as to

why the case should not be dismissed and sanctions assessed. When a complaint lacks allegations

based in fact and law as thoroughly as here, this “strongly supports supports [a] finding of improper

purpose, justifying Rule 11 sanctions. See Cabell v. Petty, 810 F.2d 463, 466 (4th Cir.1987). “[T]he

primary[] purpose of Rule 11 is to deter future litigation abuse, such as the abuse of our legal

system in which Plaintiffs have engaged in for well over a decade. In re Kunstler, 914 F.2d 505,

522 (4th Cir. 1990). It is beyond comprehension that Plaintiffs truly believe the speech at issue in

this case to be actionable. In yet another libel case filed by Plaintiffs, the court noted that the article

in question “engage[d] in conjecture that Murray may have acted out of spite, which begs the

response of: so what?” Murray v. The HuffingtonPost.com, 21 F. Supp. 3d 879, 885 (May 12,

2014) (emphasis in original). John Oliver was mean to you, Bob. So what?

IV. Conclusion

“Humans dislike self-directed criticism. The intolerance within all of us can oversuppress

speech which is otherwise useful either to the speaker or to a listener.” Moore v. City of Kilgore,

877 F.2d 364, 380 (5th Cir. 1989). Bob Murray needs to be taught that our judicial system is simply

not the place for harassment and petty grievances. The ACLU-WV therefore respectfully requests

that this court deny Plaintiffs’ motion for a temporary restraining order and issue an order to show

cause as to why this case should not be dismissed and Plaintiffs sanctioned.

                                                            6 While, of course, following all of the proper due process requirements.

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Dated: August 1, 2017 Respectfully submitted,

/s/ Jamie Lynn Crofts Jamie Lynn Crofts West Virginia Bar No. 12730 ACLU of West Virginia Foundation P.O. Box 3952 Charleston, WV 25339-3952 (304) 345-9246, ext. 102 / (304) 345-0207 (f) jcrofts@acluwv.org

Counsel for ACLU-WV

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CERTIFICATE OF SERVICE

I, Jamie Lynn Crofts, do hereby certify that on August 1, 2017, I electronically filed a true

and exact copy of BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION

OF WEST VIRGINIA FOUNDATION IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A

TEMPORARY RESTRAINING ORDER AND IN SUPPORT OF DISMISSAL AND RULE 11

SANCTIONS with the Clerk of Court using the CM/ECF System, with copies provided to:

David L. Delk , Jr. Grove & Delk, PLLC 44 1/2 15th Street Wheeling, WV 26003 ddelk@grovedelklaw.com

Jeffrey A. Grove Grove & Delk, PLLC 44 1/2 15th Street Wheeling, WV 26003 jgrove@grovedelklaw.com

Clayton J Fitzsimmons Fitzsimmons Law Firm, PLLC 1609 Warwood Ave Wheeling, WV 26003 clayton@fitzsimmonsfirm.com

Holly Suzanne Planinsic Herndon, Morton, Herndon & Yaeger 83 Edington Lane Wheeling, WV 26003 hplaninsic@hmhy.com

Robert P. Fitzsimmons Fitzsimmons Law Firm, PLLC 1609 Warwood Ave Wheeling, WV 26003 bob@fitzsimmonsfirm.com

/s/ Jamie Lynn Crofts Jamie Lynn Crofts West Virginia Bar No. 12730 ACLU of West Virginia Foundation P.O. Box 3952 Charleston, WV 25339-3952 (304) 345-9246, ext. 102 / (304) 345-0207 (f) jcrofts@acluwv.org

Case 5:17-cv-00099-JPB Document 26-1 Filed 08/01/17 Page 16 of 16 PageID #: 936

FEDERAL RULES OF APPELLATE PROCEDURE

NINTH CIRCUIT RULES

CIRCUIT ADVISORY COMMITTEE NOTES

1 June 2017

FRAP 29

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FRAP 29. BRIEF OF AN AMICUS CURIAE

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial consideration of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may file an amicus curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.

(3) Motion for Leave to File. The motion must be accompanied by the proposed brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

(4) Contents and Form. An amicus brief must comply with Rule 32. In addition to the requirements of Rule 32, the cover must identify the party or parties supported and indicate whether the brief supports affirmance or reversal. An amicus brief need not comply with Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Rule 26.1;

(B) a table of contents, with page references;

(C) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a statement that indicates whether:

(i) a party’s counsel authored the brief in whole or in part;

(ii) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and

(iii) a person—other than the amicus curiae, its members, or its counsel— contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person;

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(F) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only with the court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s consideration of whether to grant panel rehearing or rehearing en banc, unless a local rule or order in a case provides otherwise.

(2) When Permitted. The United States or its officer or agency or a state may file anamicus- curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or supporting neither party must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the petition is filed. An amicus curiae opposing the petition must file its brief, accompanied by a motion for filing when necessary, no later than the date set by the court for the response.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 28, 2016, eff. Dec. 1, 2016.)

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CIRCUIT RULE 29-1. REPLY BRIEF OF AN AMICUS CURIAE

No reply brief of an amicus curiae will be permitted. (Rev. 12/1/09)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-1

The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the Court will review the amicus curiae brief in conjunction with the briefs submitted by the parties, so that amici briefs should not repeat arguments or factual statements made by the parties.

Amici who wish to join in the arguments or factual statements of a party or other amici are encouraged to file and serve on all parties a short letter so stating in lieu of a brief. If the letter is not required to be filed electronically, the letter shall be provided in an original. (Rev. 7/94; 12/1/09)

CIRCUIT RULE 29-2. BRIEF AMICUS CURIAE SUBMITTED TO SUPPORT OR OPPOSE A PETITION FOR PANEL OR EN

BANC REHEARING OR DURING THE PENDENCY OF REHEARING

(a) When Permitted. An amicus curiae may be permitted to file a brief when the Court is considering a petition for panel or en banc rehearing or when the Court has granted rehearing. The United States or its officer or agency, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus curiae brief without the consent of the parties or leave of court. Subject to the provisions of subsection (f) of this rule, any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.

(b) Motion for Leave to File. The motion must be accompanied by the proposed brief and include the recitals set forth at FRAP 29(a)(3).

(c) Format/Length.

(1) A brief submitted while a petition for rehearing is pending shall be styled as an amicus curiae brief in support of or in opposition to the petition for rehearing or as not supporting either party. A brief submitted during the pendency of panel or en banc rehearing shall be styled as an amicus curiae brief in support of appellant or appellee or as not supporting either party.

(2) A brief submitted while a petition for rehearing is pending may not exceed 15 pages unless it complies with the alternative length limit of 4,200 words. Motions for leave to file a longer brief are strongly disfavored. (Rev. 12/1/16)

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(3) Unless otherwise ordered by the Court, a brief submitted after the Court has voted to rehear a case en banc may not exceed 25 pages unless it complies with the alternative length limit of 7,000 words. Motions for leave to file a longer brief arestrongly disfavored. (Rev. 7/1/16; Rev 12/1/16)

(d) Number of Copies.

(1) If a petition for rehearing en banc has been granted and the brief is not required to be submitted electronically, an original and 20 copies of the brief shall be submitted.

(2) For all other briefs described by this rule that are not required to be submitted electronically, an original shall be submitted.

The Clerk may order the submission of paper copies or additional copies of any brief filed pursuant to this rule. (Rev. 12/1/09)

(e) Time for Filing.

(1) Brief Submitted to Support or Oppose a Petition for Rehearing. An amicus curiae must serve its brief along with any necessary motion no later than 10 days after the petition or response of the party the amicus wishes to support is filed or is due. An amicus brief that does not support either party must be served along with any necessary motion no later than 10 days after the petition is filed. Motions for extensions of time to file an amicus curiae brief submitted under this rule are disfavored. (Rev. 12/1/09)

(2) Briefs Submitted During the Pendency of Rehearing. Unless the Court orders otherwise, an amicus curiae supporting the position of the petitioning party or not supporting either party must serve its brief, along with any necessary motion, no later than 21days after the petition for rehearing is granted. Unless the Court orders otherwise, an amicus curiae supporting the position of the responding party must serve its brief, along with any necessary motion, no later than 35 days after the petition for panel or en banc rehearing is granted. Motions for extensions of time to file an amicus curiae brief submitted under this rule are disfavored. (Rev. 12/1/09)

(f) Circulation. Motions for leave to file an amicus curiae brief to support or oppose a petition for panel rehearing are circulated to the panel. Motions for leave to file an amicus curiae brief to support or oppose a petition for en banc rehearing are circulated to all members of the Court. Motions for leave to file an amicus curiae brief during the pendency of en banc rehearing are circulated to the en banc court. (New 7/1/07)

Cross Reference:

FRAP 29. Brief of an Amicus Curiae on page 116Circuit Rule 25-4. Calendared Cases on page 83

FRAP 29

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CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-2

Circuit Rule 29-2 only concerns amicus curiae briefs submitted to support or oppose a petition for panel or en banc rehearing and amicus curiae briefs submitted during the pendency of rehearing. The Court considers the filing of amicus curiae briefs related to petitions for rehearing or en banc review to be appropriate only when the post-disposition deliberations involve novel or particularly complex issues.

The Court will ordinarily deny motions and disallow stipulations for leave to file an amicus curiae brief where the filing of the brief would result in the recusal of a member of the en banc court. Any member of the Court who would be subject to disqualification in light of the amicus curiae brief may, of course, voluntarily recuse, thereby allowing the filing of the amicus curiae brief. (New 7/1/07)

CIRCUIT RULE 29-3. MOTIONS FOR LEAVE TO FILE AMICUS CURIAE BRIEFS

A motion for leave to file an amicus brief shall state that movant endeavored to obtain the consent of all parties to the filing of the brief before moving the Court for permission to file the proposed brief. (New 1/1/12)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-3

FRAP 29(a) permits the timely filing of an amicus curiae brief without leave of the Court if all parties consent to the filing of the brief; obtaining such consent relieves the Court of the need to consider a motion. (New 1/1/12)