January 6 Decision on Brunson’s Rule 11 Petition

SCOTUS announced their decision to deny Brunson petition 22-380. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-380.html

By way of history, in Aug. 2022 Brunson learned he could file a Rule 11 case that would not require a decision from the lower court.  He decided to approach SCOTUS because a previous US Court of Appeals Tenth Circuit Utah case (22-4007) had not yet been decided.  

A Rule 11 petition is a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court.  It is granted upon demonstrating the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination of SCOTUS. See 28 U. S. C. § 2101(e).

Brunson submitted a petition.  SCOTUS received it Sept. 23, 2022.  SCOTUS helped him complete the necessary process to satisfy the court for submission.  On Oct. 24, 2022, SCOTUS said they had everything they needed and docketed the petition.   

On October 6, 2022, after the Brunson petition for writ of certiorari was received by SCOTUS Sept. 23, the Utah appeals court made a decision to uphold a lower court order dismissing the Utah case.  The timing is interesting.  

Whether or not this impacted SCOTUS’ decision on Jan. 6, 2023 not to move forward with the petition, we don’t know.  Could the reason be there was no longer a need for it now that Brunson can appeal the previous case to SCOTUS?  We’re not attorneys so we can only speculate. 

However, we would not be surprised to learn this was not the end of the line for Brunson. He said in a brief statement on social media that “we will now make our next move.”  

Utah 22-4007 Decision: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110749788.pdf 

SCOTUS Petition to SCOTUS 22-380:  https://www.supremecourt.gov/DocketPDF/22/22-380/243739/20221027152243533_20221027-152110-95757954-00007015.pdf

Key Dates, Per Brunson:  https://ralandbrunson.com/

August 14, 2022
The Supreme Court of the United States
(The brothers realize that they no longer have to wait for a decision from the 10th Circuit of Appeals. The Rule 11 enables them to bypass the 10th Circuit and go straight to the SCOTUS. Their brother Deron spent the past week crafting a perfectly well written petition for writ of certiorari. On this day Deron had his two brothers Loy and Raland fine tune it in preparation for the SCOTUS and the proper format for the printers.)

September 23, 2022
Petition for Writ of Certiorari Received
(The SCOTUS received the petition along with the copies for the Justices.)

September 28, 2022
A phone call from SCOTUS
(The Clerk of the SCOTUS calls Raland requesting for a revision of the Petition that would include more information on the lawsuit and wondering how soon they could get it.)

October 17, 2022
2nd phone call from SCOTUS
(The Clerk of the SCOTUS calls Raland again. She asks “how are you doing on your revision of the Writ with the additional information that we need?” Raland said “We’re working on it as we speak!” She said “how soon can we get it?” Raland said “Right away!”)

October 20, 2022
Revised Petition shipped to the SCOTUS

October 24, 2022
Petition docketed!
(The clerk of the Court tells Raland that they have everything they need. The U.S. Attorneys have until Nov 23, 2022 to respond showing why the Supreme Court of the United States should not move on this case.)

November 23, 2022
The Solicitor General of the United States Department of Justice replaces the U.S. Attorneys
(Elizabeth B. Prelogar, the Solicitor General of United States, the official attorney on record for the defendants, and in behalf of the 388 defendants, waived their right to respond to this lawsuit, thus allowing the SCOTUS to move forward!)

November 30, 2022
The SCOTUS set the conference date for Jan 6, 2023
(The 9 Justices will meet January 6, 2023 to discuss the case and decide (by vote) if they want to move it to a hearing, where they will officially judge the case and decide (by vote) if defendants should be removed from office)

[Edited and expanded for clarity 1/10/23]

Comments

  1. So, does this mean: “No. You have lost. Go away and don’t bother us” ?
    Or does it mean: “We will not hear this now because you have other options” ?

    I’m sure lots of briefs have lots of expensive opinions…

  2. Alexander II says

    Huh?

    SCOTUS Case No. 22-328 is Allinson v. the United States. It involves a prisoner convicted of bribery, and is wholly unrelated. In that case, a lawyer is seeking extra time to file papers.

    SCOTUS Case No. 22-380 is the Brunson matter. The Tenth Circuit issued an Order dismissing the case on October 6, 2022. It appears that judgment was entered by that court.

    Rule 13(1) prescribes a 90 day time within which to file a petition for a writ of certiorari; as does US Code sec. 2101 (c). Fourteen days later, Brunson appealed the judgment of the Tenth Circuit to SCOTUS on October 20, 2022. Presumably, he paid the requisite filing fees. There’s no indication on the docket that he sought relief to file in forma pauperis.

    SCOTUS denied Brunson’s petition for writ of certiorari on January 9, 2023.

    Where do you get the idea that SCOTUS accepted the Brunson case? I certainly do not see it on the docket entries. SCOTUS did not “allow” anything and certainly made no determination under Rule 11 that Brunson made the requisite “showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” In fact, he seems to have simply followed normal appellate practice. Upon entry of the Tenth Circuit’s decision, he simply filed a petition for a writ of certiorari, i.e. he asked SCOTUS to exercise its discretion to hear the case after the Tenth Circuit issued its opinion and order. SCOTUS denied it.

    At least as to this litigation, Brunson has no “next move.”

    • Gail Sheppard says

      The 22-328 number was an inadvertent error on my part. Thank you for pointing it out. I will correct it. I suspect you never thought there was a possibility that I was talking about Allinson v. the United States, but you looked it up anyway.

      No one disputes Utah didn’t dismiss the case on October 6.

      Yes, fourteen days after the judgment, Brunson filed the required paperwork requested by SCOTUS. Brunson approached SCOTUS before the Utah case (22-4007) was decided. Like most of us, musicians don’t know how to whip up cases the way the U.S. Supreme Court like to see them.

      This is what Brunson reported: He submitted something to the US Supreme Court. Five days later, a clerk from the Court called him. The clerk told Brunson about Rule 11 and instructed him on what he would need to do to put the case in the format/order SCOTUS likes to see them. (He actually says in the petition the “case uncovers a serious national security breach,” which means it would qualify as a Rule 11.) Among other things, he had to notify the 388 parties involved. I think the notification process had to be done twice due to some error. At some point, the Utah case was decided. There were only 10 business days between Oct. 6, the date of the Utah decision, and Oct.20, when the Office of the U.S. Supreme Court Clerk marked Brunson’s petition as received. (It looks like it was received again on Oct. 24, which I can’t explain.)

      I will edit the post to make my point a little less unclear.

      The Brunson brothers initially paid for all this and now individuals are contributing money to help reimburse them.

      No one said SCOTUS “accepted” anything. I believe the words I used were: “accepted for consideration.” In other words, they would look at it to decide if they wanted to even hear the case, which happened last Friday. It was today they made the announcement. Obviously they accepted a petition or they wouldn’t have been able to conference about it.

      That Brunson has a “next move” came from him. It would be really odd for him to make a comment like that if it weren’t true or not to anticipate the eventuality of needing a plan B. But I never said what he said was true. I said, “We would not be surprised to learn this was not the end of the line for Brunson.”

      And we wouldn’t.

      But maybe it’s no longer possible to arrive at justice from any angle within the justice system. As they say, maybe “Military is the only way.”

      • You can have your perfect constitutional republic
        with separation of powers and all the other bells and whistles.
        But when the Big Bad Cat comes and institutes a rule of force,
        the only question that matters is: Who Will Bell The Cat?

        • I wonder if congressional Republicans really understand that not only in order to pass anything, but also to repeal anything, they need the Senate to pass or repeal it and POTUS to sign it into law (or to pass it with a 2/3 majority in each chamber, overriding the presidential veto). Otherwise, they’re pounding sand.

          The only thing they really have the power to do at this juncture, without a friendly Senate and White House, is to hold hearings and investigate.

  3. I told everybody that this was too hot to handle. I am sorry to have been proven right.

  4. Alexander II says

    Perhaps surprising or counterintuitive, federal court clerks who answer the phone, including those at SCOTUS, make great efforts to help pro se litigants. It’s one of the legacies of Gideon v. Wainwright.

    If Brunson indeed called the SCOTUS clerk before there was a judgment in the Tenth Circuit, it’s easy to see how a filing clerk could have mentioned that SCOTUS Rule 11 was a theoretical way around waiting for the Tenth Circuit to decide. It’s a (polite) vehicle to appear helpful, while telling them to go away.

    Every petition for writ of certiorari that is filed is reviewed, at least in theory, by the court in conference. To be sure, the justices rely heavily on their law clerks – distinguished from the folks who accept filings or answer the phones – to vet many, if not nearly all, of them, knowing their boss’s interests, judicial philosophies, beliefs, and how they wish to shape the law.

    The one thing that seems to have escaped attention is that this is a political controversy that the federal courts assiduously avoid. How the chambers of the legislature govern themselves, including the manner in which they seat, discipline, and remove their members is left exclusively to them. It’s a separation of powers thing. It’s roughly parallel to the federal courts refusing to hear complaints about how hierarchical churches govern themselves.

    The Roberts Court has, as a general principle, significantly throttled back in the number of cases it accepts to hear. That’s part of his judicial philosophy.

    Certainly, I am sympathetic to the notion that there were shenanigans – material shenanigans – in the 2020 and 2022 elections. And I am terribly disappointed with the “official” results and how they accelerate the downward spiral of our Republic.

    I admire Brunson’s commitment and even courage, quixotic as it is. But this case was dead on arrival in the district court, the Tenth Circuit, and certainly SCOTUS. First, legally, the petition is hardly better than legally illiterate.

    Second, a, if not the, person who dropped the ball in this entire sad mess is an Orthodox Christian, Mark Brnovich, the Arizona Attorney General. He was among those best suited to mount a proper attack on the results. He did not do so. Perhaps Mark thought there was an insufficient basis to pursue it. Perhaps the Deep State “got to him.” Who knows. But he was a key player who bowed out and turned a blind eye.

    The “Right” simply does not know how to play this slimy, nefarious, and tragic political endgame. (Or it does and refuses to do so.) When great hope and headlines are misplaced in some pro se litigant living in an Utah apartment submitting a petition barely worthy of a C student sophomore in high school, in my view, it’s desperation equal to spending your last dollar on a Mega Millions lottery ticket or tilting at windmills.

    I’m not trying to be mean, or a jerk, or pick a fight; it is simply the reality.

  5. This blog has become sadly focused on “Princes and Sons of Men” and less and less focused on the most important, the spiritual life. There is no mention of the recent person of the Ukrainian Orthodox Church, the recent attempted murder of Priests in Ukraine, or Orthodox Children in Kosovo, the current attempt to deport saintly Bishops, one of the Svyatogorsk Lavra, the Ukrainian monastery which has been shelled and attacked by both sides while just trying to protect innocent Ukrainian refugees.
    Orthodoxy is not Democratic or Republican. We will always be persecuted no matter what political power is in place.

    • Gail Sheppard says

      We’ve mention the UOC many, many times on this blog, and have discussed the other things you mentioned, as well. GOOGLE: Monomakhos UOC

    • “There is no mention of…”

      You can yourself, of course, raise issues that concern you.

    • George Michalopulos says

      Paul, thank you for pointing this out. I think that as Orthodox Christians, we can all agree with the sentiments that St Paul laid out in Ephesians 6:12.

      The problems in the Ukraine are part and parcel of this spiritual warfare. Much has been said about it on this blog and much more (sadly) will be said. There are only so many hours in the day and our backlog is growing commensurately.

      Regardless, we pray for Metropolitan Onuphry and his suffering Church.

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