In a decision issued today, the court rejected an argument in an amicus brief because it was not made by the parties:
Several environmental, community, and labor organizations filed an amicus brief urging that we deny New Fortress’s petitions on the grounds that, under the ‘plain meaning of the [statute at issue],’ jurisdiction ‘does not turn on the presence of a pipeline.’ But this issue was not raised by New Fortress, the only petitioner before the Court, nor meaningfully addressed by either party as their principal briefs preceded amici’s. If amici wished to challenge the validity of the pipeline requirement under the statute, they should have done so by filing a petition for review properly raising the issue.
New Fortress Energy Inc. v. FERC (No. 21-1122)
But isn’t the whole point of amicus briefs to offer arguments not made by the parties?
Well, no—not if the argument is outside the issue on appeal. Notice what the court said: “this issue was not raised by … the only petitioner.”
As Circuit Rule 28 says, an amicus brief must “focus on points not made or adequately elaborated upon in the principal brief, although relevant to the issues before this court.”
If you’re making an argument outside the issue presented, it’s not relevant—and, thus, not proper.