A REPORTER’S GUIDE
`
`TO APPLICATIONS
`
`
`Pending Before
`
`
`
` The Supreme Court of
`the United States
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 1
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`
`
`TO APPLICATIONS
`
`
`Pending Before
`
`
`
` The Supreme Court of
`the United States
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 1
`
`
`
` A Reporter’s Guide to
`
`
` Applications Pending Before
`
`
`
` The Supreme Court of the
`
`United States
`
`
`
`
` Prepared by the Public Information Office
`Supreme Court of the United States.
`
` Business hours: 9 a.m.‑5:30 p.m.
`
`202‑479‑3211 (press 1)
`
` After‑hours: 202‑479‑3000
`
`pio@supremecourt.gov
`
`Visit Our Website
`http://www.supremecourt.gov
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 2
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`
`
`Table of Contents
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`Page
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`
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` A Reporter’s Guide to Applications ........................... 1
` 1
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` Progress of a Capital Case ........................................... 7
` 1
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` Questions Most Often Asked by Reporters .............. 11
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`
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` Justices and Judicial Circuits ....................................... 17
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 3
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` A Reporter’s Guide
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`
`
` To Supreme Court
`
`Procedure For Applications
`
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 4
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` 2 A RepoRteR’s Guide to ApplicAtions
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`An application is a request for emergency action
`
`
` addressed to an individual Justice. Although most
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`
`
` applications involve routine matters such as requests
` for extensions of the time limit for filing papers,
`
`
` some—such as late night applications for a stay of
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` execution or a restraining order in a dramatic case—draw
`
`
` the attention of reporters. These newsworthy appli-
` cations usually concern an effort to buy time, to maintain
`
`
` the status quo—to stay the implementation of a lower
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` court order—pending final action by this Court (or under
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`certain circumstances, a lower court).
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`Applications are addressed to a specific Justice,
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`according to federal judicial circuit. The United States
`
`is divided into 13 federal circuits, with each Jus-
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`tice assigned to a specific circuit or circuits (see page
`19).
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`Case law has established four general criteria that
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`the applicant normally must satisfy in order for the Court
`to grant a stay. They are:
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`
`
`
`1. that there is a “reasonable probability” that four
`
`Justices will grant certiorari, or agree to review
`the merits of the case;
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`2. that there is a “fair prospect” that a majority of
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`the Court will conclude upon review that the
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`decision below on the merits was erroneous;
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`3. that irreparable harm will result from the denial
`of the stay;
`
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`4. finally, in a close case, the Circuit Justice may
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`find it appropriate to balance the equities, by
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 5
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` A RepoRteR’s Guide to ApplicAtions 3
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`
`
`
`
`
`
`
` exploring the relative harms to the applicant
`
`
`and respondent, as well as the interests of the pub-
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` lic at large.
`
` Applications are handled on “paper;” that is, there
` are normally no hearings or oral arguments. Applica-
`
`
` tions and any related papers submitted to the Court
`
` are filed with the Clerk’s Office and forwarded to the
`
` Justices. A Justice need not be physically present in
`
` the Court building in order to act on an application,
`
`although there are instances in which the Circuit Jus-
`
` tice cannot be reached. In that case, the application is
`referred to the next junior Justice.
`
`The Circuit Justice may act on an application alone
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` or refer it to the full Court for consideration. The fact
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`that an application has been referred to the full Court
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` may not be known publicly until the Court acts on
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`the application and the referral is noted in the Court’s
` order. Applications for stays in capital cases are often,
`
`
`
`though not always, referred to the full Court. If an
`
` application is referred, the Justices do not meet offi-
`
`cially or publicly, but confer, sometimes by phone, or
`through their law clerks.
`Once the full Court has acted on an application, there
`
`
`
`is no further opportunity to request relief from this
`
`Court unless there are subsequent petitions based on
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`different issues working their way through the judicial
`system.
`
`If the full Court acts on an application, five Justices
`
`must agree in order for the Court to grant a stay, but
`
`the votes of only four Justices are required to grant
`
`
`certiorari. Quite often an application will request a
`stay from the Court pending the timely filing and dis-
`
`position by this Court of the party’s petition for writ
`of certiorari.
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 6
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` 4 A RepoRteR’s Guide to ApplicAtions
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`
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`There are several possible scenarios for the dispo-
`sition of an application:
`
`
`
` • A Justice may simply deny without comment or
` explanation.
`
`
` • If a Justice acts alone to deny an application, a
` petitioner may renew the application to any other
`
`
` Justice of his or her choice, and theoretically can
`
` continue until a majority of the Court has denied
`
` the application. In practice, renewed applications
`usually are referred to the full Court to avoid such
`
`
`a prolonged procedure.
`
`
`
`
`• A Justice may call for a response from the oppo-
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`sition before reaching a final decision. Such
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`responses are usually due by a date and time
`
`certain. The Justice may grant an interim stay
`pending receipt of a response.
`
`
`• A Justice may grant. If an application is granted by
`an individual Justice, or if the full Court acts upon
`
`one, its disposition is indicated by a written or-
`der or sometimes, an opinion.
`
`An order granting an application will indicate
`
`how long the order will remain in effect—usually
`until the Court acts on the petition for writ of cer-
`
`
`
`tiorari. In fairly standard language, the order
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`will often go on to state that if the petition is
`
`
`denied, the stay will automatically terminate, but
`
`if the Court grants full review, the stay will re-
`main in effect until the Court hands down a deci-
`
`
`sion on the merits and the mandate or judgment
`
`is issued.
`
`
`• If a Circuit Justice, acting alone, grants an
`
`application, the other side may file a motion to
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 7
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` A RepoRteR’s Guide to ApplicAtions 5
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`
`
`
`
`
`
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` the full Court to vacate that Justice’s stay. As
`
` a practical matter, these are rarely, if ever,
`granted.
`
`Sometimes the application for a stay and the peti-
`
` tion for writ of certiorari are filed simultaneously and
`acted on by the Court at the same time.
`Sometimes an order will be accompanied by state-
`
`
`
`
`
`
`ments or opinions by Justices writing in support of, or
`dissent from, the action of the Court. If the opinion is
`written by a Circuit Justice acting alone, it is called an
`
`
`In-Chambers opinion.
`Applications may be filed with the Clerk’s Office
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` after regular business hours, and may be acted on
`
`
`by the Court at any time. Copies of applications
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` are made available to the Public Information Office
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`
`
`
`
`
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`by the Clerk’s Office upon their receipt. The pub-
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` lic information specialist is the primary press contact
`
`for information on applications. The Public Information
`
`Office makes filings available electronically when pos-
`sible.
`
` If an application is filed or acted on after regular
` business hours, the public information specialist will be
`
`
`
`
` notified at home by the Court, and may be contacted
` through the Court’s switchboard (202-479-3000) or at
`
`
` pio@supremecourt.gov. The Public Information Office
`
`business-hours number is 202-479-3211 (press 1).
`The Public Information Office maintains a list of press
`
` names, email addresses and phone numbers. We suggest
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` that press who wish to be included on a “call-out” list
`
` for a specific application touch base with the Public
`
`
` Information Office.
`“Call-out” is provided by the Public Information Of-
`
`fice on a limited basis, usually upon request by a
`member of the press.
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 8
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` 6 A RepoRteR’s Guide to ApplicAtions
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` If you are following a particular application, you
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` may alert the public information specialist and
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` ask to be called when it has been decided. Similarly,
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` if you are aware of an application likely to be filed
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`
`
`
`
`
`
`
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`with the Court, we will be happy to call you when the
`papers are filed.
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 9
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`
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` Progress Of A
`
`
`Capital Case
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 10
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` 8 A RepoRteR’s Guide to ApplicAtions
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`
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`The following has been prepared by the U. S. Supreme
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`
`
` Court Clerk’s Office as a basic guideline for tracking a capital
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`case through the judicial system.
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`
`
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` 1. Individual is found guilty of a capital offense.
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` 2. In a separate proceeding defendant is sentenced
`to death either by a jury or a judge.
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` 3. Direct appeal on the merits. Grounds may be any
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` legal or constitutional error arising at the trial.
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`
`
`
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`The appeal is limited to the trial record.
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` a. A direct appeal of the conviction based on the
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`case through the state courts (in some states an
`appeal is automatic and mandatory).
` b. A direct appeal of the sentence to death. State
`supreme court, or court of last resort, may con-
`
` duct a proportionality review to determine
`whether the sentence is proportionate to sen-
`tences imposed in similar cases.
` c. A petition for certiorari, seeking direct review,
`
`
` filed in the U. S. Supreme Court (the Supreme
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`Court will only hear cases where it believes
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`
`
`
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`a substantial federal issue is raised).
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`4. Execution date may be set. The warrant may be
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`issued any time after the state supreme court, or
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`
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`
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`court of last resort, affirms the death sentence.
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`5. Applications for a stay of execution: even if ap-
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`peals are pending, an application for a stay or
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`
`
`
`
`
`
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 11
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` A RepoRteR’s Guide to ApplicAtions 9
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`
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` modification of the execution date is required to
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`stop an impending execution. After an applica-
` tion for a stay has been denied by either the high-
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`
`
` est state court or a federal court of appeals, the
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` application may be filed with the U. S. Supreme
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`Court.
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`
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` 6. State petition for a writ of habeas corpus
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` (post-conviction relief). Review is not limited
`to the trial record. The petitioner may raise other
` issues such as newly discovered evidence, and
`
`
`state or federal constitutional claims, includ-
`
` ing ineffective assistance of counsel at the trial.
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`
` (where the petition is filed varies from state to
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`state):
` a. File petition in the state trial court.
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` b. File the petition in the state court of appeals
`
`for the district where the trial occurred.
` c. File the petition in the highest state court.
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`d. File a petition for Certiorari with the U. S.
`
`
`
`Supreme Court.
`7. Federal habeas corpus proceedings. This is
`
`
`a civil remedy which permits a person in cus-
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`tody to challenge the constitutionality of his
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`or her conviction or sentence. The court re-
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`views whether the petitioner is in custody in
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`
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`violation of the Constitution or laws or treaties of
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`the U. S.
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`a. District Court: (jurisdiction in both the district
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`
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`where the petitioner is confined and the district
`of the conviction):
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`
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 12
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` 10 A RepoRteR’s Guide to ApplicAtions
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` 1. May stay the state court proceeding
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` (may be automatic when a petitioner seeks
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`
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` habeas relief for the first time in federal
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`court).
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` 2. May summarily dismiss petition.
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` 3. May order an evidentiary hearing.
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` b. Court of Appeals: State prisoners must obtain
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` a certificate of appealability from the district
`court, a circuit judge, or circuit justice to appeal
`a decision to the court of appeals.
`
` c. Supreme Court: defendant may file a Petition
`for Writ of Certiorari.
` 8. May repeat steps 5, 6, and 7 with subsequent
`
`petitions. However, a U. S. court of appeals must
`authorize the district court to consider a second
`
`or successive federal habeas petition, and the
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`grant or denial of such authorization is not re-
`viewable on certiorari.
`9. A death row inmate may file an original habeas
`
`
`corpus petition in the U. S. Supreme Court along
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`
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`with an application for stay of execution.
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`
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 13
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` Questions Most Often Asked
`
`
`By Reporters
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 14
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` 12 A RepoRteR’s Guide to ApplicAtions
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`
` Q: How much notice does the Court usually have
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` that an execution is imminent and an application for
`a stay of execution may be filed?
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`
`
`
`
`
`A: The Clerk’s Office distributes a list of scheduled
`executions on a weekly basis to the Justices’ cham-
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`bers. Many on the list have had cases at the Supreme
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`Court before, and copies of those case filings are made
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`available to chambers. Lower courts will notify the
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`
`Supreme Court of their decisions and will transmit
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`copies of their rulings as they are announced so that
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`the Justices can be kept informed. Meanwhile, legal
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`counsel will usually call the Clerk’s Office in advance
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`of the scheduled execution to “check in,” to be advised
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`
`
`of filing procedures, and to advise the Court whether
`he/she intends to appeal to the Court.
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`
`
`Q: Who are the best contacts for guidance on the
`
`
`facts of a particular case? Where can copies of papers
`filed with the Court be obtained?
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`
`
`
`
`
`
`
`A: The Public Information Office staff at the Court
`
`are the best contacts for information on what has
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`been filed and when, as well as for updates on status.
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`There is one press copy of all case filings, which may
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`
`
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`be copied in the pressroom during business hours.
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`
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`After hours, the Public Information Office staff
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`often handle press calls from their homes, but usually
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`arrangements can be made for a reporter to get
`
`
`copies of filings if the need arises. For more substan-
`
`
`tive guidance on the facts of a case, the best contacts
`are usually the lawyers handling the case.
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 15
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` A RepoRteR’s Guide to ApplicAtions 13
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`
`
`
` Q: How is it determined which Justice will handle
`
`an application?
`
`
`
`A: The country is divided into 13 federal judicial
`
`
`circuits and each Supreme Court Justice is assigned
`
`one or more of these circuits. The Justices decide
`
`among themselves who will be responsible for which
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`circuits, and those assignments are announced in a
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`written order of the Court. The assignments usually
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`change only when the Court’s membership changes
`(see page 19).
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`
`Q: What if that Justice is unavailable?
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`
`
`A: The application goes to the next Justice junior in
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`seniority; the Chief Justice ranks first, followed
`
`by Justices Clarence Thomas, Ruth Bader Ginsburg,
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`Stephen G. Breyer, Samuel A. Alito, Jr., Sonia Sotomayor,
`Elena Kagan, Neil M. Gorsuch, and Brett M. Kavanaugh.
`
`
`
`Q: Who is at the Court when an application is
`pending after hours?
`
`
`
`A: The applications attorney remains in the Clerk’s
`
`Office after hours until the application has been acted
`
`on by the Court. Much of the attorney’s time is spent
`processing any papers filed in the case and distributing
`them to chambers, and notifying parties and the Public
`
`Information Office of changes in the case’s status. This
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`requires constant contact with the Justices’ chambers,
`other courts that may still be involved in deciding some
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`aspect of the case, and the parties’ lawyers. The applica-
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`
`tions attorney also oversees the publication of the final
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`order or opinion disposing of the application, and its
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`release to the parties and the Public Information Of-
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`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 16
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` 14 A RepoRteR’s Guide to ApplicAtions
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`
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` fice. The Justices’ law clerks stay in chambers as well,
`
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` to help keep the Justices abreast of developments in
`
`the case. The Justices need not be present in the build-
`ing to be available to handle an application.
`
`
`
`Q: What might TV be able to capture on camera
`
`when a “big” application is pending, or lawyers are
`about to file papers with the Court?
`
`
`A: Not much. The fact is, most after-hour filings
`
`
`are either delivered by messenger or emailed to the
`
`Court. Since cameras are not permitted inside the
`building, unless a lawyer involved in a case has indi-
`cated he/she will be available to answer questions from
`the press outside, there’s nothing to see. In any event,
`clearance for setting up a tripod on the Court’s grounds
`
`
`
`must be obtained from the Court’s Public Information
`
`
`
`
`Office. If no public information specialist is in the build-
`
`
`ing, someone from the office may be reached at home
`through the Court’s main number at 202-479-3000 or at
`pio@supremecourt.gov.
`
`
`
`Q: How can a reporter find out when an applica-
`
`tion has been acted on by the Court, and what action
`the Court took, particularly after hours?
`
`
`A: During business hours, call the Court’s Public
`
`
`Information Office: 202-479-3211 (press 1). After hours,
`
`
`
`call the Court’s main number at 202-479-3000. You may
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`
`
`
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`also reach the office by emailing pio@supremecourt.gov.
`
`
`
`
`
`
`
`
`
`
`The Court’s operator will answer until 8 p.m., and a
`
`
`Court police officer will answer the phone after that.
`Either will connect you or take your name, email ad-
`
`dress and phone number to pass on to the public informa-
`
`
`tion specialist on call. If an opinion or court order is re-
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 17
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`
` A RepoRteR’s Guide to ApplicAtions 15
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`
`
`
`
`
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` leased, either the Clerk’s Office or Public Information will
`
`
`
`
`
` email it to the wire services. Upon request, we will email
`to other interested reporters as well, if time allows.
`
`
`
`
`Q: Will anyone at the Court speak on camera or
`
`agree to be recorded for radio regarding a Court
`
`decision?
`
`
`A: We follow the example of the Court. Sorry, the
`answer is “No.”
`
`
`
`Q: Does the Court have to act within certain time
`constraints when considering an application?
`
`A: There is no law or rule requiring the Court to act
`
`by a time certain, but as a practical matter, an applic-
`ation by definition implies a deadline of some sort.
`
`
`
`Q: Will there always be something in writing
`
`
`
`released when a Justice or the Court acts on an
`
`
`application?
`
`
`
`
`
`A: When a Justice denies an application, there is
`
`usually nothing in writing. When a Justice grants an
`
`application, or if the full Court acts on an application,
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`there is usually at least an order setting out the terms
`
`of the action, and sometimes there will be separate
`statements or opinions.
`
`
`
`Q: How many petitions for writ of certiorari are
`
`
`filed with the Court each term? How many are
`
`
`granted full review? How long does a party have to
`
`file a petition with the Court?
`
`
`A: The Court receives approximately 7,000-8,000
`
`petitions for a writ of certiorari each Term. The Court
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 18
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` 16 A RepoRteR’s Guide to ApplicAtions
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`
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`
`
` grants and hears oral argument in about 80 cases.
`
` A petition seeking review of the final judgment by the
`
` court of last resort below must be filed within 90 days
`of the entry of that judgment.
`
`
`
` Q: How long does it take the Court to act, once a
`
`petition has been filed?
`
`A: On the average, about six weeks. Once a petition
`has been filed, the other party has 30 days within which
`
`to file a response brief, or, in some cases waive his/
` her right to respond. Once the 10 day period for receiv-
`
`
`ing a reply brief has passed, the case is circulated to the
`
`Justices and placed on a conference list, for consider-
`ation at one of the Justices’ private Friday conferences.
`
` Copies of conference lists are available to news report-
`
`
`
`ers for their convenience ONLY, and not for publica-
`tion. Cases appearing on a conference list may reason-
`
`ably be expected to appear on the following Monday’s
` Order List (the announcement of dispositions in pend-
`
`
`ing cases) although this is not always the case. If a case
`
` does not appear, it will be relisted for consideration at
`
`a future conference. If the petition is granted, the peti-
`
` tioner has 45 days within which to file a brief on the
`
`
`
`
`
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`merits, and the respondent has 35 days within which
`
` to file the brief in response, for a total of about 80 days.
`The petitioner may then file a reply brief up to one week
`prior to the date oral argument has been scheduled.
`
`
`
`Q: Are cases granted during a term always heard
`that same term?
`
`A: No. Cases granted after mid-January are typically
`
`
`carried over until the next term begins the following
`October, unless the case is expedited by the Court.
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 19
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`
`
`
`
` Justices of the Supreme Court
`
`
` of the United States and
`
`Judicial Circuits
`
`
`
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 20
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` 18 A RepoRteR’s Guide to ApplicAtions
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`
`
`
`
` John G. Roberts, Jr., nominated by President Bush,
`
` took his seat as Chief Justice of the U. S. September
`
`29, 2005.
`
`
`Clarence Thomas, nominated by President Bush,
`took his seat as an Associate Justice October 23, 1991.
`
`
`
`Ruth Bader Ginsburg, nominated by President
`
`
`
`
`
`
`
`Clinton, took her seat as an Associate Justice August
`10, 1993.
`
`Stephen G. Breyer, nominated by President Clinton,
`took his seat as an Associate Justice August 3, 1994.
`
`
`Samuel A. Alito, Jr., nominated by President Bush,
`took his seat as an Associate Justice January 31, 2006.
`
`
`
`
`Sonia Sotomayor, nominated by President Obama,
`took her seat as an Associate Justice August 8, 2009.
`
`
`Elena Kagan, nominated by President Obama, took her
`seat as an Associate Justice August 7, 2010.
`
`
`Neil M. Gorsuch, nominated by President Trump, took
`his seat as an Associate Justice April 10, 2017.
`
`Brett M. Kavanaugh, nominated by President Trump,
`took his seat as an Associate Justice October 6, 2018.
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 21
`
`
`
`
`
` A RepoRteR’s Guide to ApplicAtions 19
`
`
`
`
`
`
`
`Circuit
`Federal
`D. C.
`First
`
`Second
`
`Third
`
`Fourth
`
`Fifth
`
`Sixth
`
`Seventh
`
`Eighth
`
`Ninth
`
`Tenth
`
`Eleventh
`
`Justice
`Roberts
`Roberts
`Breyer
`
`Ginsburg
`
`Alito
`
`Roberts
`
`Alito
`
`States Included
`Nationwide
`District of Columbia
`Maine, New Hampshire,
`Massachusetts, Rhode
`Island, Puerto Rico
`New York, Vermont,
`
`Connecticut
`New Jersey,
`
`Pennsylvania, Delaware,
`Virgin Islands
`Maryland, West Virginia,
`Virginia, North Carolina,
`South Carolina
`Mississippi, Louisiana,
`Texas, Canal Zone
`Sotomayor Ohio, Michigan,
`
`Kentucky, Tennessee
`Indiana, Illinois,
`
`Wisconsin
`Minnesota, Iowa,
`
`Missouri, Arkansas,
`Nebraska, North Dakota,
`South Dakota
`California, Oregon,
`
`Nevada, Montana,
`
`Washington, Idaho,
`
`Arizona, Hawaii, Alaska,
`Guam
`Sotomayor Colorado, Wyoming,
`Utah, Kansas, Oklahoma,
`New Mexico
`Alabama, Florida,
`
`Georgia
`
`Kavanaugh
`
`Gorsuch
`
`Kagan
`
`Thomas
`
`Clerk’s Office
`Washington
`Washington
`Boston
`
`New York
`
`Philadelphia
`
`Richmond
`
`New Orleans
`
`Cincinnati
`
`Chicago
`
`St. Louis
`
`San Francisco
`
`Denver
`
`Atlanta
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 22
`
`
`
`6/17
`6/17
`
`Patent Owner Saint Regis MohawkTribe
`Ex. 2012, p. 23
`
`Patent Owner Saint Regis Mohawk Tribe
`Ex. 2012, p. 23
`
`
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