Appellate Litigation Update: Eleventh Circuit Overturns Precedent, Permits Supplemental Briefing on Issues Not Initially Raised in Briefs

Aug 07, 2015   
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Friday, August 7th, 2015

On August 5, 2015, the United States Court of Appeals for the Eleventh Circuit, sitting en banc, issued its ruling in United States v. Durham, overturning the Circuit’s previous precedent on the issue of whether an appellant may raise an issue not raised in his or her opening brief by way of supplemental briefing where the issue arises from an intervening decision of the United States Supreme Court. In finding that such supplemental briefing is permitted, the Eleventh Circuit’s position is now consistent with other circuit courts that have addressed the issue. A copy of the opinion can be read here.

While the facts underlying Durham’s conviction are not relevant to the ultimate decision of the Eleventh Circuit, for context it is important to note that during Durham’s sentencing, he was found to be an Armed Career Criminal under 18 U.S.C. § 924(e) (hereinafter referred to as “ACCA”). When submitting his initial brief on the merits on appeal, Durham did not raise a challenge to the application of the ACCA to his case. However, during the briefing of Durham’s appeal, the U.S. Supreme Court ordered reargument and supplemental briefing in United States v. Johnson, 135 S. Ct. 939 (2015), on the issue of whether the residual clause of the ACCA is unconstitutionally vague.

As a result of the Supreme Court’s order of supplemental briefing in Johnson, Durham sought a stay in his appeal and permission to file a supplemental brief once a decision in Johnson was rendered. In his proposed supplemental brief, Durham argued that should the residual clause of the ACCA be found unconstitutional, only two of his previous felony convictions would qualify as violent felonies under the ACCA and, as such, the ACCA would not apply to him. Ultimately, the U.S. Supreme Court found the residual clause to be unconstitutionally vague. However, the Supreme Court’s decision was issued before the panel hearing Durham’s case had issued its decision. Thus, in Durham’s case, the Eleventh Circuit was faced with the situation where it had not yet ruled on the merits of Durham’s appeal but the Supreme Court’s decision in Johnson presented Durham with a new and meritorious issue which was not briefed.

In granting a hearing en banc, the Eleventh Circuit addressed the narrow issue of whether the Court should overturn its precedent barring an appellant from asserting an issue not raised in his opening brief where the issue is based on an intervening Supreme Court decision that changes the law. Phrased differently, the issue was whether the failure to raise a claim or theory in the opening brief that a party files, where that claim or theory is based on an intervening Supreme Court decision, bars the party from raising the issue in his or her reply brief or through the filing of a supplemental or substitute brief.

In its short and pointed opinion overruling its prior precedent and finding that such supplemental briefing is allowed, the Eleventh Circuit noted that of all the circuit courts which have previously addressed this issue, it was the only one which maintained a strict categorical rule against raising new issues which were not raised in an initial brief, even in the case where such an issue is based solely on an intervening decision of the Supreme Court. The Eleventh Circuit held:

[W]here there is an intervening decision of the Supreme Court on an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant’s opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise the new claim or theory in a supplemental or substitute brief provided that he files a motion to do so in a timely fashion after (or, as in this case, before) the new decision is issued.

The new rule applies to both future cases and those direct appeals currently pending before the Court that involve an intervening Supreme Court decision. However, the Court did not define what “a timely fashion” is. Thus, it is possible that further clarification through subsequent cases will be needed.

The attorneys at Fuerst Ittleman David & Joseph, PL have extensive experience in the areas of complex civil and administrative litigation, criminal defense, and appellate practice at both the state and federal levels. Should you have any questions or need further assistance, please contact us by email at or telephone at 305.350.5690.