Appellate Update - June 2025

Proposed Amendments to FRAP 29: Reshaping Amicus Practice in Federal Appellate Courts

The Judicial Conference is considering significant amendments to Federal Rule of Appellate Procedure 29 that would fundamentally alter how amicus briefs are filed in federal appellate courts.  Amicus briefs serve as essential conduits for specialized expertise and diverse perspectives in the judicial system, allowing organizations to contribute valuable insights on legal issues that extend beyond the immediate interests of the parties in litigation.  The proposed amendments would eliminate the current option to file amicus briefs with parties’ consent, instead requiring all non-governmental amici to obtain leave of court by filing a motion.  Additionally, they would significantly expand disclosure requirements for amicus filers, requiring organizations to identify certain contributors, and introduce a novel purpose requirement, restricting content to relevant matter not already mentioned by the parties.

The proposed changes come at a time when amicus participation in appellate litigation has reached unprecedented levels, and the proposal has generated significant controversy, reflecting deeper tensions about the role of amicus briefs in our judicial system.  Under the current system, courts review all amicus briefs on their merits, with the consent process simply offering a procedural streamlining that would be eliminated under the proposed amendments, forcing courts to conduct additional preliminary reviews before considering the substance of amicus arguments. Opponents, including some federal judges, have expressed concerns the changes will negatively impact speech, particularly among those who have limited resources, while increasing the administrative burden on courts.  Meanwhile, proponents argue the changes would combat coordinated “flotillas” of amicus briefs from anonymous funders engaging in “judicial lobbying.”

The proposed changes also represent a significant departure from historical trends.  Previous amendments to Rule 29 generally focused on streamlining the filing process, such as eliminating the requirement for written consent from parties and allowing oral consent to be stated in briefs.  Similarly, in 2023 the Supreme Court eliminated the need for consent or motion practice entirely, noting that the consent requirement “no longer” serves a “useful gatekeeping function” and “imposes unnecessary burdens upon litigants and the Court.” 

For law firms and their clients, these amendments could have significant practical implications:

1. Increased Procedural Hurdles and Cost: Amicus participation would require formal motion practice and coordination with other parties and amici in all cases, potentially deterring some organizations from participating.
2. Enhanced Disclosure Requirements: Organizations would need to provide more detailed financial information about contributors to their amicus briefs, potentially exposing sensitive donor information.
3. Impact On Public Interest Litigation: Organizations with limited resources may find it more difficult to participate in appellate litigation through amicus briefs, potentially reducing the diversity of perspectives presented to the courts.
4. Planning Considerations: Litigants may need to identify and secure potential amicus support earlier in the litigation process to allow time for motion practice and to ensure compliance with expanded disclosure and novelty requirements.

The outcome of this rulemaking process will significantly impact how organizations participate in federal appellate litigation and could reshape a practice that has become increasingly important in developing legal precedent.

The proposed amendments remain under consideration by the Judicial Conference Advisory Committee on Appellate Rules, with the next step being review by the Standing Committee in June 2025 before potentially advancing to the full Judicial Conference, Supreme Court, and Congress.