Example 15.5

Takeaway point 15.5: When you want to convince a court to decline to hear an appellate challenge, emphasize that the decision is sound and that it does not create a conflict among lower court opinions, and show that the issue rarely arises.

When you are opposing certiorari (or some other kind of discretionary appellate review), you want to be able to submit an argument like this one, which appeared in opposition to a petition for a writ of certiorari:

This Court is not likely to see a less meritorious petition for certiorari on the regular docket this Term. The petition here embodies literally every factor that counsels against certiorari: it implicates no circuit conflict, it is entirely factbound, it is interlocutory, it involves state law issues, the decision below is non-precedential, and the questions ostensibly presented were neither pressed by petitioners below nor passed on by the court of appeals. Any one of those grounds is normally a good and sufficient reason to deny certiorari. This petition runs the table on all of them.

SAFG’s Brief in Opposition from Altus Fin. S.A. v. SAFG Retirement Servs., Inc., No. 09-1578, 2010 WL 4022692 (U.S. Oct. 8, 2010).

In the more detailed example below, Sony accused Joel Tenenbaum of ille-gally downloading songs. Instead of seeking actual damages, Sony sought statutory damages for copyright infringement, which is permitted under federal copyright law. The jury awarded $675,000 to Sony, but the district court lowered the jury’s award to $67,500 based on due process grounds. The First Circuit reversed this part of the decision, holding that the district court judge breached constitutional avoidance principles by reducing the award on due process grounds rather than on common law principles. It remanded the case to the district court, but Tenenbaum nevertheless petitioned for certiorari to try to reduce his damages to zero.

Source: Sony’s Brief in Opposition from Tenenbaum v. Sony BMG Music Entertainment, No. 11-1019, 2012 WL 1384653 (U.S. Apr. 18, 2012).

In this aggressive, short introduction, Sony paints Tenenbaum as the villain, recasting the lawsuit as one man’s quest to evade the consequences of his illegal activity. Facts matter — even at the Supreme Court.

The procedural posture of the case is critical to Sony’s effort to avoid review by the Supreme Court.

Sony gives the Court an easy out: procedural grounds for denying certiorari. In opposing a cert petition, lawyers should try to make denial simple and compelling. If the petition is unripe and the arguments are unpreserved, the Justices can avoid the case without grappling with the underlying legal questions. The brief goes on to add several additional grounds for denying the cert petition, including that Tenenbaum’s arguments are “meritless.”

In addition to the various procedural grounds for denying Tenenbaum’s petition, Sony emphasizes that the Court has previously addressed the relevant legal issue. There is, therefore, no need for the Court to resolve Tenenbaum’s arguments (because it has already done so).

We see yet another argument based on a procedural defect in Tenenbaum’s case: his arguments were not preserved.

Courts are more likely to review problems that are major and recurring. The Supreme Court, for instance, is most likely to grant certiorari when the disputed legal issue (i) creates or exacerbates a “split” about the same legal issue (i.e., conflicting decisions among circuit courts or state supreme courts), (ii) recurs frequently or is enormously important, (iii) is already producing problems (such as forum shopping and inconsistent results), and (iv) involves a final judgment about an issue that is not fact- bound. In the above example, Sony showed that this issue rarely arises and that nearly all of these other factors disfavor granting certiorari, making the Justices more likely to think that this issue is unworthy of their time.