FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL GARCIA CUEVAS, No. 12-55807
Petitioner-Appellant,
D.C. No.
v. 2:10-cv-09775-VAP-MLG
JAMES D. HARTLEY,
Warden, Avenal State ORDER
Prison,
Respondent-Appellee.
Filed August 4, 2016
Before: Alex Kozinski and Susan P. Graber, Circuit
Judges, and Charles R. Breyer,* Senior District Judge.
Order;
Dissent by Judge Kozinski
*
The Honorable Charles R. Breyer, Senior United States District Judge
for the Northern District of California, sitting by designation.
2 CUEVAS V. HARTLEY
SUMMARY**
Criminal Law
The panel filed a published order granting an
“Application to File an Oversized Replacement Answering
Brief.”
The panel granted the Application because of the
complexity of the case and its procedural history, including
the fact that the original brief answered a short pro se filing.
Dissenting, Judge Kozinski wrote that he does not consent
to the filing of a fat brief because the state’s motion is wholly
inadequate. He wrote that in what has become a common and
lamentable practice, lawyers, instead of getting leave to file
an oversized brief before the deadline, wait for the last minute
to file chubby briefs and dare this court to bounce them.
COUNSEL
Nathaniel H. Lipanovich, Stephen Rossi, and Michael G.
Ermer, Irell & Manella LLP, Newport Beach, California, for
Petitioner-Appellant.
Xiomara Costello, Deputy Attorney General; Kenneth C.
Byrne, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Kamala D. Harris
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CUEVAS V. HARTLEY 3
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
ORDER
Because of the complexity of this case and its procedural
history, including the fact that the original brief answered a
short pro se filing, the “Application to File an Oversized
Replacement Answering Brief” is GRANTED. The brief
tendered July 25, 2016, is ordered filed.
Circuit Judge Kozinski, dissenting:
I do not consent to the filing of a fat brief because the
state’s motion is wholly inadequate. The state had previously
filed a compliant brief that covered many of the same points,
but we ordered replacement briefs in light of Daire v.
Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The
discussion of Daire in the state’s oversized brief takes up
only 3 pages; the state’s lawyer gives no coherent explanation
for why she needed to add 14 pages. The state mentions the
complexity of the facts it wishes us to consider, but those
facts were contained in the earlier version of the state’s brief.
Its remaining explanations are equally unconvincing. To me,
it seems perfectly clear that the state filed an overly long brief
because it thought it could get away with it.
This has become a common and rather lamentable
practice: Instead of getting leave to file an oversized brief
before the deadline, lawyers wait for the last minute to file
chubby briefs and dare us to bounce them. Of course, it’s
4 CUEVAS V. HARTLEY
hard to decide cases without a brief from one of the parties,
and denying the motion usually knocks the briefing and
argument schedule out of kilter. Denying the motion is thus
more trouble than allowing the brief to be filed and putting up
with the additional unnecessary pages. Sly lawyers take
advantage of this institutional inertia to flout our page limits
with impunity. This encourages disdain for our rules and
penalizes lawyers, like petitioner’s counsel, who make the
effort to comply.
For my part, I don’t feel bound to read beyond the 14,000
words allowed by our rules, so I won’t read past page 66 of
the state’s brief. If counsel for the state wishes me to
consider any argument in the remaining portion of her brief,
she should feel free to file a substitute brief, no longer than
14,000 words, which I will read in lieu of her oversized brief,
so long as it is filed no later than 7 days from the date of this
order.