USA v. Andrew Auernheimer

Filing 50

ECF FILER: Motion filed by Appellant Andrew Auernheimer to strike Brief for Appellee. Certificate of Service dated 09/23/2013. (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
APPELLANT AUERNHEIMER’S MOTION TO REJECT APPELLEE’S
26,495-WORD BRIEF AS DEFICIENT, OR ALTERNATIVELY, MOTION
TO FILE OVERSIZED REPLY BRIEF
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, asks this
Court to reject the government’s 118-page, 26,495-word brief as it fails to conform
to the required word limits under the Federal Rules of Appellate Procedure.
Alternatively, it asks this Court to grant Mr. Auernheimer permission to file an
oversized reply brief.
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; its certificate of compliance indicates
that it was 13,899 words long.
2.

This Court’s Standing Order states that “motions to exceed the page

or word limitations for briefs are strongly disfavored and will be granted only upon
demonstration of extraordinary circumstances.” See Third Circuit Standing Order
Regarding Motions To Exceed The Page Limitations Of The Federal Rules Of
Appellate Procedure (January 9, 2012).
3.

On August 5, 2013, in response to Mr. Auernheimer’s standard-length

brief, the government requested leave to file an enlarged brief consisting of 26,500
words, 90% longer than otherwise permitted under the Federal Rules of Appellate
Procedure. The government argued that it needed additional space because (1) Mr.
Auernheimer’s opening brief “raises serious substantive challenges to the
Government’s prosecution,” and that “several of the legal issues raised are

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questions of first impression in this Circuit;” and (2) the government needed extra
space to respond to the four amici briefs filed in support of Mr. Auernheimer’s
position.
4.

The Government also asked this Court to stay the briefing schedule

while this Court considered its request.

The Court granted the stay before

Mr. Auernheimer could respond.
5.

On the same day the government filed its request, Mr. Auernheimer

filed an objection to the government’s request, asking this Court to deny the
government’s request for extra words and to not stay the briefing schedule.
6.

The next day, August 6, 2013, the government filed a letter with the

Court, informing it that the parties had reached an agreement on when the
government could file a brief. The government withdrew its request for a stay and
instead asked for an extension of time to September 20, 2013, which was
unopposed by Mr. Auernheimer. However, Mr. Auernheimer continued to object
to permitting the government extra words.
7.

To date, the Court has not ruled on the government’s motion for an

extension of time or for extra words, nor has it lifted the stay.
8.

On September 20, 2013, the government filed its answering brief. As

it indicated in its Certificate of Compliance, the government’s brief is 26,495
words despite the 14,000-word limit in Fed. R. App. P. 32(a)(7)(B)(i).

2

The

Government’s brief is approximately 90% longer than the brief of the defendant,
Mr. Auernheimer.
9.

Most tellingly, despite urging the Court to grant it additional space to

address the arguments of amici, it actually devotes only 11 of the 118 substantive
pages in the brief to the arguments raised by amici. Over 100 pages of the
government’s brief are addressed to responding to Mr. Auernheimer’s 60-page
brief.
10.

Mr. Auernheimer continues to maintain the government has provided

no significant reason why it needed to file a brief nearly twice as long as provided
by the Federal Rules of Appellate Procedure. Mr. Auernheimer’s brief raised the
serious legal challenges at issue within the 14,000-word limit; the government can
respond adequately under the same length restrictions.

Moreover, this case

involves only a single appellant (Mr. Auernheimer) and a single appellee (the
United States), and therefore it does not involve unusual circumstances such as
“multi-appellant consolidated appeals in which the appellee seeks to file a single
responsive brief or complex/consolidated proceedings in which the parties are
seeking to file jointly” listed by this Court as extraordinary circumstances that
might justify a longer brief.
11.

For these reasons, Mr. Auernheimer asks this Court to reject the

government’s deficient brief and order it to file a brief conforming to the 14,000

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word limit in Rule 32(a)(7)(B)(i). Should the Court order the government’s brief
be rejected, Mr. Auernheimer does not object to giving the government ten days
from the date of the Court’s order in order to file a compliant brief.
12.

Should the Court accept the government’s oversized brief,

Mr. Auernheimer requests this Court grant him additional space in his reply brief
to respond 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 23rd day of September, 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

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

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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 September 23, 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: September 23, 2013

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