Letter to Cox from Court RE: Memo for Rules, Specification Chart, Guide to Counsel, and Memo to Brief Printing Companies

    ®ffice of the Clerk 

Supreme Qonrt of the Hnited States 
Washington, B. ¢. 205%3-0001 

June 26, 2000 

Todd A. Cox, Esq. 

1444 Eye Street, NW 

10™ Floor 
Washington, DC 20005 

Re: 99-1864) - Hunt v. Cromartie 

99-1865) - Smallwood v. Cromartie 

Dear Mr. Cox: 

The Court today entered the following order in the above case: 

“In these cases probable jurisdiction is noted. The 

cases are consolidated and a total of one hour is 

allotted for oral argument.” 

The following items are enclosed: Memoranda describing the procedures 

under the Rules, a Specification Chart, the Guide to Counsel, and the Memorandum 

to Brief Printing Companies. Although this case will not be scheduled for oral 

argument until the 2000 Term please note that requests for extensions of time to file 

briefs on the merits are not favored. 

If you have any questions, please contact me. 

Sincerely, 

WILLIAM K. SUTER, CLERK 

Denise J. McNern€y 

Assistant Clerk - Merits Cases 

(202) 479-3032 

Enclosures  



  

OFFICE OF THE CLERK 

SUPREME COURT OF THE UNITED STATES 

Washington, D. C. 20543 

MEMORANDUM TO COUNSEL IN CASES GRANTED REVIEW ON 

The attention of counsel of record in cases granted review on the above date is directed to 

the following: 

1. Your case will most likely be calendared for oral argument in the L000 7er vv] 

session of the Court. Counsel will be advised several weeks in advance of the argument date. 

2. The petitioner’s or appellants’s brief on the merits is due 45 days from (/2L(00. 

The respondent’s or appellee’s brief on the merits is due 30 days after receipt of the petitioner’s 

or appellant’s brief on the merits. A reply brief, if any, must be filed in the Clerk’s office within 

30 days of the receipt of the brief for the respondent or appellee, or received by the Clerk one 

week before argument, whichever is earlier. Rule 25.3. 

3. If the certified record of the proceedings below has not been transmitted to this Court, the 

Clerk will request the clerk of the court havi ession of the record to transmit it pursuant to 

Rule 12.7. The Clerk will allow for a reasonable period of time to permit counsel to have access 

to the record locally before the request is made. 

4, The joint appendix must be printed and filed on or before Slolpo Counsel for 

the petitioner or appellant is primarily responsible for preparing and printing the joint appendix. 

In preparing and printing the joint appendix, counsel for the petitioner or appellant should follow 

the instructions contained in the attached memorandum on “Printing the Joint Appendix.” The 

Court strongly urges counsel to agree quickly on the contents of the joint appendix. Rule 26. 

S. If no agreement on the contents of the joint appendix is reached, counsel 7 the petitioner 

or appellant must designate those portions of the record to be prjnted by Of , and 

counsel for the respondent or appellee must cross-designate by / . These dates must 

be adhered to. No cross-designations may be made by petitioner or appellant. Counsel for the 

_petitioner or appellant should keep the Clerk advised of the date any agreement is reached. 

  

6. In designating the portions of the record to be printed in the joint appendix counsel 

should remember that the entire record is available to the Court for reference and examination. 

Only those portions of the record directly relevant to the issues being briefed should be printed. 

The briefs of the parties may cite and rely upon portions of the record that have not been 

designated for printing in the joint appendix. Rule 26.2. (Continued)  



    

7. The form and content of the joint appendix and the briefs on the merits are governed by 

Rules 24, 26, and 33.1. The text shall be typeset e.g., (hot metal, photocomposition, or computer 

typesetting) and reproduced by offset printing, photocopying, or similar process. The text shall 

be Roman 11-point or larger type with 2-point or more leading between lines. The type size and 

face should be similar to that used in current volumes of the United States Reports. Briefs shall 

not exceed 50 pages. Increasing the amount of text by using condensed or thinner typefaces, or 

by reducing the space between letters, is strictly prohibited. See Rule 33.1(b) concerning 

quotations and footnotes. 

8. The joint appendix must have a tan cover. Petitioner’s or appellant’s brief on the merits 

must have a light blue cover; respondent’s or appellant’s brief on the merits must have a light 

red cover. A reply brief, if any, must have a yellow cover. A specification chart is enclosed. 

9, Unless otherwise directed by the Court, counsel on each side will be allowed 30 minutes 

to argue, with only one attorney being allowed to argue for each side. Rules 28.3 and 28.4. 

NOTE: Counsel must become familiar with the revised Rules of the Court, effective date 
May 3, 1999. The Clerk’s staff is available to provide any assistance you may 

seek. Enclosed is a copy of the current Rules of Court. 

Contact Ms. Denise McNerney for further information. OFFICE: (202) 479-3032; 

FAX: (202) 479-2959. 

 



  

U.S. SUPREME COURT — SPECIFICATION CHART 
  

  

  
  

  

  

  

  

  

  

    
  

  

  

  

  

  

    

MAXIMUM 
PURSUANT TO RULES NUMBER OF COVER 
EFFECTIVE 10/2/95 RULE NO. PAGES COLORS* 

Petition for a Writ of Certiorari; 14 

Motion for Leave to file a Bill of Complaint and Brief in Support; 17.3 . WHITE 

Jurisdictional Statement; 18.3 

Petition for an Extraordinary Writ 20.2 

Brief in Opposition; 15.3 
Brief in Opposition to Motion for Leave to file an Original Action; 17.5 
Motion to Dismiss or Affirm; 18.6 30 

Brief in Opposition to Mandamus or Prohibition; 20.3(b) 
Response to a Petition for Habeas Corpus 20.4 

Brief for an Amicus Curiae at the Petition Stage 37.2 20 

Wr tui 15.6 
Reply to Brief in Opposition; 17.5 10 
Brief Opposing a Motion to Dismiss or Affirm 18.8 

15.8 Ey 
; 17 mr wh 5 

Supplemental Brief 18.10 10 TAN Jana 

25.5 

No page 
Joint Appendix** 26 limits; refer to 

rules 

Brief on the Merits for Petitioner or Appellant; 24 
Exceptions by Plaintiff to Report of Special Master 17 50 LIGHT BLUE 

Brief on the Merits for Respondent or Appellee; 

Brief on the Merits for Respondent or Appellee Supporting 24.2 

Petitioner or Appellant; 12.6 50 

Exceptions by Party Other than Plaintiff to Report of Special 17 
Master 

Brief for an Amicus Curiae in Support of the Plaintiff, Petitioner, or PASTEL OR 

Appellant, or in Support of Neither Party, on the Merits or in an 37.3 30 
oa ; : PALE GREEN 

Original Action at the Exceptions Stage 

Brief for an Amicus Curiae in Support of the Defendant, 

Respondent, or Appellee, on the Merits or in an Original Action at 37.3 30 

the Exceptions Stage 

Reply to Plaintiff's Exceptions to Report of Special Master 17 50 

Reply to Exceptions by Party Other than Plaintiff to Report of 
i 17 50 

Special Master 

Reply Brief on the Merits 24.4 20 

Petition for Rehearing 44 10       
  

Note: Forty (40) copies of any of the above documents are required for filing. 

* Cover colors of briefs not included in this list should be TAN (Rule 33.1(e)). There must be adequate contrast between printed text and 
the color of the cover. (Color of cover stock may vary slightly from lot to lot.) 

** Include on cover the date certiorari was applied for and the date certiorari was granted, or date of docketing the appeal and date of the 
noting of probable jurisdiction. 

Copyright © 1995 

  

  

 



OFFICE OF THE CLERK 

SUPREME COURT OF THE UNITED STATES 

Washington, D. C. 20543 

  

PRINTING THE JOINT APPENDIX 

Rule 26 requires counsel for the petitioner or appellant to print a joint appendix separate 

and apart from the brief on the merits. 

(8 The enclosed sample cover should be followed as to form; the color of the cover must be 

tan. Please note the following: 
(a) The cover must contain all seven items specified in Rule 34, including the names, 

addresses, and telephone numbers of counsel of record for all parties. 
(b) Two lines must appear at the bottom of the cover: (1) the first line must indicate 

the date when the petition for the writ of certiorari was filed or when the appeal was 
docketed; (2) the second line must indicate when certiorari was granted or when 

jurisdiction of the appeal was noted or postponed. 

(a) A table of contents must be inserted at the beginning of the joint appendix. Rule 

26.5. 
(b) Rule 26.1. requires the joint appendix to contain the following: 

(1) the relevant docket entries in all the courts below; 
(2) any relevant pleadings, jury instructions, findings conclusions, or opinions; 

(3) the judgment, order, or decision under review; and 
(4) any other parts of the record that the parties particularly wish to bring to the 

Court’s attention. 
(c) The Court does not require the reprinting of any item specified in subparagraph (b) 

which is already contained in an appendix to a petition for a writ of certiorari or a 

jurisdictional statement prepared as required by Rule 33.1. The joint appendix, 

however, must contain a notation directing the Court to the place where that item 

appears. 

NOTE: Any opinion, judgment, order, or decision printed in the joint appendix must appear in 

full without deletion. 

3 The joint appendix must be arranged so that the various documents appear 

chronologically; if more than one case from the lower court is involved the documents must be 

arranged chronologically within each case referenced. Any document not in the certified record 

must not be reproduced in the joint appendix. 

4, If no docket entries appear in the record, counsel must include a chronological list of the 

dates on which relevant pleadings were filed, hearings were held, and orders entered. Rule 26 

requires only the inclusion of those docket entries which are relevant to the issues presented in 

this Court only. (Continued)  



5. The name of the court in which the proceeding occurred must appear at the beginning of 

each item printed in the joint appendix. 

6. The title of the case must be printed at the beginning of the first item in the joint 
appendix, and must precede any opinion, judgment, or order reproduced. The title need not be 

printed on any other paper, but a parenthetical note must be inserted — e.g., (Title omitted in 

printing). 

7. Jurats and certificates or affidavits of service may be omitted and an appropriate 

parenthetical note printed in their stead — e.g., (Jurat omitted in printing), (Certificate, or affidavit 

of service omitted in printing). 

8. Any deletion not specifically noted must be indicated by asterisks. 

9, In order that testimony reprinted in the joint appendix may be compared with the original 

transcript, the page at which it appears in the original must be indicated in brackets proceeding 

the statement that is set out. Rule 26.5. 

10. The size of type and over-all page size requirements for material reproduced in the joint 
appendix, including that which is to be photographically reproduced, are set forth in Rule 33.1. 

11. Only the cost of printing 50 copies of the joint appendix will normally be allowed as 

taxable costs, although additional copies may be printed at counsel’s own expense. Counsel 

printing the joint appendix must promptly file with the Clerk an itemized statement from the 

printer showing the cost of printing 50 copies (unless printing a larger number of copies is 
approved by the Clerk) and must serve a copy thereof on all counsel to the proceeding. Rule 

26.3. 

Contact Ms. Denise McNerney for further information. OFFICE: (202) 479-3032; 

FAX: (202) 479-2959. 

 



  

°° @'" Cover—See Ye @® 
  

No. 98-0000 
  

  

dn the Supreme Qourt of the United States 

OCTOBER TERM, 1998 

ABC COMPANY 
Petitioner, 

VS. 

XYZ CORPORATION, ET AL., 
Respondents. 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT 

JOINT APPENDIX   
JOHN DOE* JUDY SMITH* 

WILEY JONES SMITH and SMITH 
Doe, Doe and Doe Legal Building 

One Apple Lane Apple City, Virginia 00000 
Apple City, Virginia 00000 Telephone: (804) 000-0000 
Telephone: (804) 000-0000 Counsel for Respondents 

Counsel for Petitioner 

*Counsel of Record 

  

  

PETITION FOR CERTIORARI FILED JULY 8, 1998 
CERTIORARI GRANTED OCTOBER 6, 1998        



Supreme Qonrt of the Hnited States 
®ffice of the (lerk 

Washington B. (. 20543-0001 

William BR. Suter 
eas 

January 24, 2000 Jax 202-478-2858 Qlerk of the Qonst 

MEMORANDUM TO BRIEF PRINTING COMPANIES 

SUBJECT: Typesetting specifications - Rule 33.1(b) 

Some “paid case” briefs, those printed in 6%s- by 9%- inch booklet format, 
submitted to this Court do not comply with Rule 33.1(b) of the Rules of the Court. 
A copy of the Rules of the Court (effective May 3, 1999) and the brief cover 
specification chart are enclosed. It appears that some briefs are submitted to 

printers on computer disks and printed without careful examination for typesetting 
accuracy. The Supreme Court will not accept briefs that do not comply with Rule 

33.1(b). That Rule provides: 

"The text of every booklet-format document, including any appendix 
thereto, shall be typeset in Roman 11-point or larger type with 2-point or more 
leading between lines. The typeface should be similar to that used in current 
volumes of the United States Reports. Increasing the amount of text by using 

condensed or thinner typefaces, or by reducing the space between letters, is strictly 
prohibited. Type size and face shall be consistent throughout. Quotations in 
excess of 50 words shall be indented. The typeface of footnotes shall be 9-point or 
larger with 2-point or more leading between lines. The text of the document must 

appear on both sides of the page." 

There is a discrepancy between what has traditionally been considered 11- 

point type and what today’s computers refer to as 11-point type. The problem 
encompasses both typeface and type size. The roman type mentioned in the Rules 
refers to traditional roman type (as opposed to script or italics). It does not refer to 

computer-generated "Roman" such as "Times New Roman" font. Likewise, 
computer generated 11-point type size does not always correspond to 11-point type 

size produced using traditional printing methods. Any type that is called 11 point 
for the body and 9 point for the footnotes that does not measure on a typesize 
finder to be 11 point and 9 point will not be accepted. Examples of unacceptable 
11-point typeface are Times New Roman, Garamond, Garamond W 1, Goudy  



OLSt Bt, CG Times, Baskerville, and Times Roman. Acceptable typefaces are 

Book Antiqua, Bookman Oldstyle, Charter BT, Galliard BT, Chelthm ITC BK BT, 

Palatino, and New Century Schoolbook. 

It is recommended that all material submitted to you for printing, especially 
material submitted on a computer disk, be carefully examined to determine if all of 
the specifications of Rule 33.1 are met. Note that Rule 33.1(c) provides that the 
text field, including footnotes, may not exceed 4% by 7% inches. The material 

needs to be adjusted for correct typeface and type size by you, or by your 
customers, before printing. 

I have enclosed sample copies of correct and incorrect brief typesetting. I 
hope that these will enable you to carefully check all material submitted for correct 
typeface and type size, and notify your customers if the type does not conform. All 
briefs submitted to this Court must comply with the Rules of the Court. Deviations 
from the Rules create an encumbrance not only for the Court, but also for the 
parties filing the brief. 

A copy of a memorandum concerning the preparation of paid case petitions 
for certiorari is enclosed for your information. 

I hope that this memorandum will assist you in preparing briefs to be filed 
with this Court. If you have questions, please contact Ms. Kathy Tycz, Director, 
Documents Control, at 202-479-2923, FAX 202-479-3021. Thank you for your 
cooperation. 

Sincerely, 

Ulan. AT 
William K. Suter 

Clerk of the Court 

Enclosures  



CORRECT 

13 

by allowing defenses based on school misconduct in 
situations in which the school’s involvement in the 
lending relationship was not unusually extensive. 

For the same reason, petitioner errs in contending 
(Pet. 18-19) that the decision of the court of appeals 
conflicts with this Court’s cases allowing state law to 
impose liability greater than the liability imposed by 
federal law. Such cases, including English v. General 
Electric Co., 496 U.S. 72 (1990), and California v. ARC 
America Corp., 490 U.S. 93 (1989), address situations in 
which there is no conflict between the State's 
imposition of greater liability and federal law. Here, as 
in Hines, there is a conflict, because the federal scheme 

did not simply permit state-law school-based defenses 
in specified circumstances but limited state-law school- 
based defenses to those circumstances.’ 

3. There is no conflict among the courts of appeals 
on the question presented by petitioner, as petitioner 
herself admits. Pet. 21, 24. Petitioner nonetheless 

urges this Court to grant review on the basis of “di- 
vergent decisions emerging from the lower courts.” 
Pet. 21. In fact, the lower ceurts have uniformly found 

state laws comparable to the one at issue here to be 
preempted. This Court’s review is not warranted based 
on petitioner’s assertion that those courts apply 
different rationales in reaching their uniform results. 

  

5 Petitioner’s reliance (Pet. 20-21) on United States v. Kimbell 

Foods, Inc., 440 U.S. 715 (1979), Wallis v. Pan American 

Petroleum Corp., 384 U.S. 63 (1966), and United States v. Yazell, 

382 U.S. 341 (1966), is also misplaced. Those decisions concern the 
issue whether a court should rely on state law or fashion a federal 

common law rule when the court must fill in the interstices of a 

federal program. They do not concern the question presented 
here—under what circumstances federal law preempts conflicting 
state law.  



INCORRECT 

1 

ing whether an agency's statement is what the APA calls a “rule” 

can be a difficult exercise. We need not conduct that exercise in 

this case, however. For even assuming that a statement terminating 

the Program would qualify as a “rule” within the meaning of the 

APA, it would be exempt from the notice-and-comment 

requirements of § 553.” Termination of the Program might be seen 

as affecting the Service's organization, but “rules of agency 

organization” are exempt from notice-and-comment requirements 

under § 553(b)(A). Moreover, § 553(b)(A) also exempts “general 

statements of policy,” which we have previously described as 

“‘statements issued by an agency to advise the public prospectively 

of the manner in which the agency proposes to exercise a 

discretionary power.”” Chrysler Corp., supra, at 302, n. 31 (quoting 

Attorney General's Manual on the Administrative Procedure Act 

30, n. 3 (1947)). Whatever else may be considered a “general 

statemen([t] of policy,” the term surely includes an announcement 

like the one before us, that an agency will discontinue a 

discretionary allocation of unrestricted funds from a lump-sum 

appropriation. 

Our decision in Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402 (1971), confirms our conclusion that the 

Service was not required to follow the notice-and-comment 
procedures of § 553 before terminating the Program. Overton Park 

dealt with the Secretary of Transportation's decision to authorize 

the use of federal funds to construct an interstate highway through a 

public park in Memphis, Tennessee. Private citizens and 
conservation organizations 

  

the organization, procedure, or practice requirements of an agency and 
includes the approval or prescription for the future of rates, wages, 
corporate or financial structures or reorganizations thereof, prices, 
facilities, appliances, services or allowances therefor or of valuations, 

costs, or accounting, or practices bearing on any of the foregoing.” 

7 We express no view on the application of the publication requirements of 

§ 552, or on the propriety of the relief granted by the District Court. The 

Court of Appeals did not address these issues. See supra, at 190. 

 



State of Nort 
MICHAEL F. EASLEY Department of Justice 
ATTORNEY GENERAL P.O. BOX 629 

RALEIGH REPLY TO: Tiare B. Smiley 
meri Special Litigation 

276020620 (919) 716-6900 
(919) 716-6763 

June 28, 2000 

Mr. Robinson O. Everett 

Everett & Everett 

Post Office Box 586 VIA FACSIMILE AND US MAIL 
Durham, NC 27702 
Fax: (919) 682-5469 

Re: Joint Appendix in Hunt v. Cromartie 

Dear Robinson: 

It looks like we are once again off to the Supreme Court and must prepare a joint appendix. 
It is our assumption that the appendix can be worked out amicably. As you are aware, its preparation 
is a daunting project. 

As a start, here are some suggestions. Although we will be looking at additional items to 
designate, the following will be included as required by Supreme Court Rule 26: 

1. Relevant docket entries (We will take a first stab at deleting unnecessary items by 
marking up a copy of the docket entries.) 

2. Amended Complaint, October 10, 1997. (Do we need any other amendments that dealt 
only with parties?) 

3. Defendants’ Answer to Amended Complaint, November 25, 1997 and Amended 
Answer of Defendant-Intervenors, November 25, 1997. 

A great deal of material already is included in the appendices to the Jurisdictional Statement 
and the Reply Brief. We assume, however, that you may want to designate additional trial testimony 
for Cooper, McMahan, Peterson and Cohen. Depending on your additions, we also may want to  



  

Mr. Robinson O. Everett 

June 28, 2000 

Page 2 

designate more testimony from these witnesses. It may also be more practical to repeat testimony 
from the earlier appendices in the joint appendix based on the total designation of testimony from 
these witnesses in order to maintain the flow of the testimony. Since you already have our initial 
designations for these witnesses, it would be helpful if you could go ahead and look at the transcript 
and give us the additional pages and lines as soon as possible. (Either list page and line designations 
or send us a marked up copy.) Similarly, we know you will want to include portions of Weber's 
testimony, as well as your other witnesses. If you will give us your designations for Weber as soon 
as possible, we will let you know the additional pages and lines of his testimony we will include. The 
same goes for your other witnesses. Because all materials have to be formatted for the court’s booklet 
size, we would prefer you send us portions to be included in the joint appendix for each witness 
instead of waiting until you review the entire transcript. 

There may also be some additional deposition testimony that needs to be included in the joint 
appendix. We will provide any designations from the depositions of Cooper, McMahan, Peterson, 
Cohen and Jones to you as soon as possible. We do not think it would be appropriate for you to 
merely send us your pre-trial order deposition designations for inclusion in the joint appendix since 
they are much too voluminous and were done under such adverse circumstances. Throughout the 
process of designating testimony, each side may want to add designations based on designations by 
the other side. We will try to accommodate these mutual needs up to a point, if it will not affect 
submitting the joint appendix to the printer. 

Finally, we need to know which exhibits you will want to include. To the extent the exhibits 
are reports or affidavits, which can be “scanned” into the computer, these should not be a problem, 
although we may ask you to be responsible for proofing your documents. (Unfortunately, despite our 
efforts to proof the appendix to the jurisdictional statement, the trial court opinion contains almost 
as many references to “distracting” as to “districting.”) Another alternative would be for you to 
provide your documents on a disc. We especially anticipate problems with the tables which are 
included within the text of Weber's report, if you designate that exhibit. 

With regard to maps, any maps you want included in the joint appendix will have to be 
provided to us “printer ready.” We would not want to take the responsibility for reducing the size of 
your maps to 8 x 11. Maps which cannot reasonably be reduced in size and remain legible may have 
to be provided for in some other manner acceptable to the Court. Since we do not anticipate 
designating additional maps, or any maps we designate likely can be reduced in a manner similar to 
those in the appendix to the jurisdictional statement, we will leave it to you to suggest how you might 
wish to handle any such problems. 

 



Mr. Robinson O. Everett 

June 28, 2000 ° 

Page 3 

  

There are probably additional things we will need to discuss, but we hope this will be a good 
start. We look forward to working with you and hope we can all work to produce the joint appendix 
as efficiently as possible. 

On a personal note, we saw an item from the Salisbury Post on the recent and untimely death 
of R.O. Everett, your cousin Reuben. We extend our condolences and best wishes to you and your 
family. 

Very truly yours, . 
Ph 

Tiare B. Smiley 

Special Deputy Attorney Gefferal 

TBS/fa 

CC; Todd Cox 
Adam Stein