Although there is no right to appeal an adverse decision of the Massachusetts Appeals Court to the Supreme Judicial Court, a litigant may seek additional review of an Appeals Court decision by filing either a Petition for Rehearing or an Application for Further Appellate Review (“FAR”).
The Appeals Court issues its decision in the form of a rescript which orders the lower court to take certain action in the case (such as entering judgment for a particular party). If the Appeals Court issues an opinion, it also issues a rescript. Under Mass. R. App. P. 23, the Appeals Court clerk is to issue the rescript to the lower court “twenty-eight days after the date of the rescript unless the time is shortened or enlarged by order.” Thus, there is usually a four week delay, after the rescript is entered, before it issues to the lower court. However, “[t]he timely filing of a petition for rehearing or of an application for further appellate review will stay [issuance of] the rescript until disposition of the Petition or Application unless otherwise ordered by the appellate court.” The rescript is to issue immediately upon denial of the Petition or Application, unless the court orders otherwise. If the Petition or Application is granted, then the rescript will not issue.
Time limits for Petition for Rehearing and Application for FAR.
A Petition for Rehearing must be filed with the clerk of the appellate court within 14 days after the date of the rescript, unless the time is modified by the Court. Pursuant to an Appeals Court Standing Order, the Petition must also be filed with the Court via email, as a .pdf file sent to email@example.com.
An Application for FAR must be filed within 20 days after the date of the rescript. Because the Court will probably not act on a Petition for Rehearing before the deadline for filing of an Application for FAR passes, a Massachusetts appellate attorney should consider filing both a Petition and an Application. If that is done, the attorney must notify the Supreme Judicial Court of any action on the Petition for Rehearing, as that Court will not grant an Application for FAR of an Appeals Court decision for which rehearing has been granted.
If a party needs more time to file either a Petition for Rehearing or an Application for FAR, that party may file a motion seeking additional time. The motion to should state the reasons why additional time is needed and should provide a date by which the Petition or Application will be filed. If the additional time requested will result in the Petition or Application being filed more than 28 days after the Court’s decision (i.e. after the rescript is to issue to the lower court), the party seeking the extension should also move the Appeals Court to stay issuance of the rescript (Rule 23 provides that the Appeals Court may modify the date of issuance of the rescript).
Petition for Rehearing.
A Petition for Rehearing is heard by the panel or quorum which decided the appeal. Mass. R. App. P. 27(a). The Petition is filed with the clerk of the appellate court that rendered the decision (the Appeals Court or the Supreme Judicial Court, as the case may be) and should be in the form of a letter to the senior justice on the quorum or panel which decided the appeal. Mass. R. App. P. 27(a), (b). If filed in paper form, the original letter should be accompanied by seven copies and one copy should be served on each other counsel. Mass. R. App. P. 27(b). In the alternative, a Petition for Rehearing of an Appeals Court case, may be electronically filed using the Appeals Court’s e-filing system.
The Petition, which should not be more than 10 pages long, “shall state with particularity the points of law or fact which it is contended the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present.” Mass. R. App. P. 27(a), (b). The party opposing a Petition for Rehearing is not permitted to file an answer unless the requested to do so, nor is there oral argument, unless the Court requests it. Mass. R. App. P. 27(a).
If the Petition is granted, the panel may enter a final disposition of the appeal, may restore it to the Court’s calendar for reargument, or may take any other appropriate action. Mass. R. App. P. 27(a). In addition, regardless of whether the Petition is granted, the panel may award costs, including reasonable attorney’s fees, to the prevailing party. Mass. R. App. P. 27(a).
There is no filing fee for a Petition for Rehearing.
Application for FAR.
An Application for FAR is filed in the Supreme Judicial Court. Mass. R. App. P. 27.1(a). The adverse party may file an Opposition. Mass. R. App. P. 27.1(c). If filing in paper form, The applicant must file an original and 17 copies of the Application (Mass. R. App. P. 27.1(d)), together with the filing fee of $270. One copy of the Application must also be filed in the Appeals Court and copies must be served on all other counsel. Mass. R. App. P. 27.1(d). A party opposing FAR may file an original and 17 copies of the Opposition with the Supreme Judicial Court and one copy with the Appeals Court. Mass. R. App. P. 27.1(d). In the alternative, a FAR Application may be electronically filed with the SJC using the e-filing system. Where the Application is e-filed in the SJC, no copy need be filed in the Appeal’s Court.
Oral argument on an Application is not permitted unless requested by the Court. Mass. R. App. P. 27.1(a).
The Application “shall be founded upon substantial reasons affecting the public interest or the interests of justice.” Mass. R. App. P. 27.1(a). Thus, the applicant should attempt to show that the case presents special factors warranting further review. Such factors might include the presence of an important public interest, a decision of the Appeals Court at odds with prior Supreme Judicial Court precedent, or a decision that creates bad law on an issue of importance.
Under Rule 27.1(b), the Application is required to contain, in the following order:
(1) a request for leave to obtain further appellate review; (2) a statement of prior proceedings in the case (including whether any party is seeking a rehearing in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any, of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the appeals court is sought; and (5) a brief statement (covering not more than ten pages of typing), including appropriate authorities, indicating why further appellate review is appropriate.
In addition, the applicant must append to the Application a copy of the Appeals Court’s rescript and opinion. Mass. R. App. P. 27.1(b). Further, if the Appeals Court decided the appeal via a Rule 1:28 memorandum, and that memorandum “refers to another document, such as a brief or judge’s findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application.” Mass. R. App. P. 27.1(b).
The adverse party may file an Opposition to the FAR Application, not to exceed 10 pages in length, within 10 days after the Application is filed. Mass. R. App. P. 27.1(c). The Opposition may request that the Supreme Judicial Court consider issues not raised by the Application for FAR.
The form of the Application and Opposition are governed by Mass. R. App. P. 20, which sets forth the requirements for appellate briefs. Mass. R. App. P. 27.1(b), (c). More information about the requirements of Rule 20, and about appellate procedure in general, can be found here. The Covers of both the Application and any Opposition must be white.
The Court grants an Application for FAR if (1) “any three justices of the Supreme Judicial Court shall vote for further appellate review” or if, (2) “a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable further appellate review.” Mass. R. App. P. 27.1(e). See also Massachusetts G.L. c. 211A, §11.
When further appellate review is granted, any party may rely on his or her briefs already on file in the Appeals Court or may apply to the Supreme Judicial Court, within 10 days after the appeal is docketed in the full Supreme Judicial Court, for permission to file new briefs. Mass. R. App. P. 27.1(f). If permission is granted, the Supreme Judicial Court will establish a briefing schedule and may impose other limitations (as to length, etc.) on the brief. Mass. R. App. P. 27.1(f).
Updated: January 24, 2017.