USA v. Andrew Auernheimer

Filing 45

ECF FILER: Response filed by Appellant Andrew Auernheimer to Motion to Accept Noncompliant filing, Motion stay request. Certificate of Service dated 08/05/2013. (HMF)

NO. 13-1816
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
V.

ANDREW AUERNHEIMER,
DEFENDANT-APPELLANT.
On Appeal From The United States District Court
For The District of New Jersey
Case No. 2:11-cr-00470-SDW-1
Honorable Susan D. Wigenton, District Judge
OPPOSITION TO UNITED STATES’ MOTION FOR A WORD LIMIT
EXTENSION TO 26,500 WORDS & STAY OF BRIEFING SCHEDULE
Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Tel.: [phone]
Email: [e-mail]

Orin S. Kerr
2000 H Street, N.W.
Washington, DC 20052
Tel.: [phone]
Email: [e-mail]

Marcia C. Hofmann
LAW OFFICE OF MARCIA C. HOFMANN
25 Taylor Street
San Francisco, CA 94102
Tel.: [phone]
Email: [e-mail]

Hanni M. Fakhoury
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel.: [phone]
Email: [e-mail]
Attorneys for DefendantAppellant Andrew Auernheimer

Appellant Andrew Auernheimer, through undersigned counsel, opposes the
government’s motion to file a brief containing 26,5000 words. He also strongly
opposes the government’s request to stay the briefing schedule while this motion is
pending. Mr. Auernheimer opposes the government’s motion and request for the
following reasons:
1.

Federal Rule of Appellate Procedure 32(a)(7)(B)(i) limits the length

of the parties’ principal briefs to 14,000 words.

Mr. Auernheimer’s opening

appellate brief fully complied with this Rule. In response to Mr. Auernheimer’s
standard-length brief, the government now seeks permission file an enlarged brief
consisting of 26,500 words
  – about 90% longer than the Rule allows.

The

government has filed this request a mere four days before its brief is due on
August 9, 2013.
2.

The government has provided no significant reason why it needs to

file a brief nearly twice as long as the Rule provides (and nearly twice as long as
the opening brief). Mr. Auernheimer agrees with the government that his brief
“raises serious substantive challenges to the Government’s prosecution,” and that
“several of the legal issues raised are questions of first impression in this Circuit.”
But these rationales do not justify giving the government 90% more space to make
its arguments. Mr. Auernheimer’s brief raised those serious challenges within the

1

14,000-word limit; the government can respond adequately under the same length
restrictions.
3.

The government also argues that it should receive 12,500 extra words

to respond to the four amici briefs filed in support of Mr. Auernheimer. The amici
briefs filed in this case certainly amplify and add perspective to the arguments
made in Mr. Auernheimer’s brief. But the government’s brief should and will
respond mostly to the arguments in Mr. Auernheimer’s brief, not the amici briefs.
Amici briefs are routinely filed in criminal cases before this and other courts, but
permitting a litigant a significant amount of extra space to respond to these
arguments would be unprecedented. See Antonin Scalia & Bryan A. Garner,
Making Your Case: The Art of Persuading Judges 104 (2008) (noting that
responding to amicus briefs within required page limits can be “unfair – rather like
giving your adversary double the page limit that you have – but life is like that”).
Nor is anyone in a position to respond at length to any government responses to the
arguments raised by amici. Mr. Auernheimer does not have the word space in his
reply brief to address such points in detail and the Federal Rules of Appellate
Procedure prohibit an amicus from filing a reply brief absent permission from the
Court. See Fed. R. App. P. 29(f).
4.

Additionally, Mr. Auernheimer strongly opposes the government’s

request that the briefing schedule be stayed pending disposition of this request.

2

Mr. Auernheimer is currently serving a 41-month prison sentence and can only be
set free when this Court rules on the merits of his case. It would be a cruel irony if
the “serious substantive challenges to the Government’s prosecution” raised in Mr.
Auernheimer’s brief were used as a justification to further delay the day when this
Court can decide his case.
5.

The government has already sought and received one extension by

this Court to file its merits brief. This Court should not allow an additional delay
by staying the briefing schedule. The government is still able to work on its
responses to Mr. Auernheimer’s arguments (as opposed to the amici) while waiting
for this Court to rule on its request. Given this Court’s order authorizing a stay and
permitting the government to file its reply brief 14 days after the court rules on the
motion, the government has already received an extension of time from its original
filing date of August 9, 2013, regardless of whether the Court grants the
government’s request for extra words.
6.

In sum, the existence of amici briefs does not remotely justify

permitting the government an additional 12,500 words or staying the briefing
schedule. Mr. Auernheimer does not oppose giving the government an extra 1,000
words to respond to the arguments raised in the amici briefs. But anything more
than that should be denied. So too should the government’s request for the briefing
schedule to be stayed more than it already has.

3

7.

Should the Court grant the government’s request in full, giving it the

requested additional 12,500 words, Mr. Auernheimer requests this Court grant him
additional space in his reply brief to respond to these additional arguments rather
than causing further delay and briefing by having each amici request an
opportunity to file a reply brief responding to the government’s arguments. An
adequate amount of extra space would be an additional 6,300 words – 90% of the
otherwise routine 7,000 word limit – for a total reply brief length of 13,300 words,
ensuring both parties receive additional space in roughly the same proportion. See
Fed. R. App. P. 32(a)(7)(B)(ii).
Dated this 5th day of August, 2013.
Respectfully submitted,
/s/ Hanni M. Fakhoury
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Orin S. Kerr
2000 H Street, N.W.
Washington, DC 20052
Marcia C. Hofmann
LAW OFFICE OF
MARCIA C. HOFMANN
25 Taylor Street
San Francisco, CA 94102

4

Tor B. Ekeland
Mark H. Jaffe
TOR EKELAND, P.C.
155 Water Street
Brooklyn, NY 11201
Attorneys for DefendantAppellant Andrew Auernheimer

5

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Third Circuit by using the
appellate CM/ECF system on August 5, 2013.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: August 5, 2013

By: /s/ Hanni Fakhory__
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
Attorney for DefendantAppellant Andrew Auernheimer

6