Forget the Motion--Write the Brief

United States v. Danny D. Fortner, No. 05-4104 (July 31, 2006): Mr. Fortner appealed his 288-month sentence. Five days before its appellee brief was due, the government filed a motion for summary affirmance, as well as a motion to suspend briefing. Although it did not have all the formal apparatus of a brief, the motion was in substance a brief on the merits. The Court denied this motion and emphatically declared that appellees should not waste everyone’s time with this type of filing. If the appellee thinks the appellant has a weak case, it should say so in an appellee brief.

The Court recognized three instances in which a motion for summary affirmance might be appropriate: (1) when time is of the essence, and the Court can decide the case on the papers; (2) when the opening brief is "incomprehensible or completely insubstantial"; or (3) when a recent appellate decision directly resolves the appeal. But the overall tenor of the Court’s opinion is to discourage such motions.