The Law Changed After Appellate Briefing—How Should a Party Use a Rule 28(j) Letter in the Fourth or Eleventh Circuit?
A party should promptly file a Federal Rule of Appellate Procedure 28(j) letter when pertinent and significant authority comes to its attention after briefing—or after oral argument but before the court decides the appeal. The letter should identify the new authority, connect it to a specific page of the party’s brief or a point made at oral argument, and explain its significance within 350 words. It is not a supplemental brief, a vehicle for new evidence, or a safe way to introduce an argument that the party failed to preserve.
The answer depends on…
whether the development is an authority rather than a new fact or item of evidence;
whether it is genuinely new, pertinent, and significant to an issue the appeal already presents;
whether the authority is binding, persuasive, final, stayed, superseded, or subject to rehearing;
whether the new decision changes governing law or merely applies settled law to different facts;
whether the relevant argument was preserved below and presented in the appellate briefs;
whether the change occurred before argument, after argument, after submission, or after judgment;
whether 350 words can fairly address the development or a motion for supplemental briefing is needed;
whether the authority affects liability, jurisdiction, remedy, harmless error, mootness, or the proper disposition on remand; and
whether opposing counsel should file a prompt response.
What Rule 28(j) permits
Federal Rule of Appellate Procedure 28(j) applies when “pertinent and significant authorities” come to a party’s attention after the party’s brief has been filed, including after oral argument but before decision. The party may promptly advise the circuit clerk by letter and must serve every other party.
The rule requires three things in the letter’s substance:
Set out the citation to the supplemental authority.
State why the authority matters.
Refer to the page of the party’s brief—or the point argued orally—to which the authority relates.
The body may not exceed 350 words. A response must also be prompt and is subject to the same 350-word limit. The federal rule supplies no fixed number of days, so “promptly” is a real strategic and professional obligation, not filler language.
The letter can address a newly issued Supreme Court opinion, a new controlling circuit decision, an intervening statute or regulation, or another legal authority that materially bears on the pending appeal. A corrected or amended opinion, grant of rehearing en banc, vacatur, stay, or later history affecting authority already cited may also warrant notice.
What a Rule 28(j) letter should not do
A Rule 28(j) letter should not:
retell the facts;
attach declarations, reports, correspondence, or other extra-record proof;
raise an unrelated issue;
introduce a theory that could have been presented in the opening brief;
evade the limits on reply briefs;
reproduce a case summary without explaining its precise effect;
imply that a nonbinding opinion controls the panel; or
request factfinding that the appellate court cannot perform.
The Fourth Circuit has expressly warned that Rule 28(j) is not a means to advance new arguments disguised as supplemental authorities. In Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017), and Alvarez v. Lynch, 828 F.3d 288, 295 n.7 (4th Cir. 2016), the court rejected attempts to use the rule that way. That warning matters even when the new authority is important: counsel must distinguish a new legal authority supporting a preserved issue from an unpreserved new claim.
A practical framework when the law changes during a federal appeal
1. Confirm exactly what changed
Read the new authority in full, including concurrences, dissents, footnotes, remedy, mandate status, and later history. Determine whether it:
announces a new rule;
abrogates or limits circuit precedent;
resolves a circuit conflict;
changes the standard of review;
changes the elements, burden, defense, or available remedy;
bears only on harmless error;
creates a jurisdictional or mootness problem; or
changes what proceedings are required on remand.
A headline or client alert is not a substitute for that analysis. If the authority is a panel opinion subject to rehearing, an unpublished disposition, an agency rule facing a stay, or a statute with a delayed effective date, say enough to avoid overstating its force.
2. Test the connection to the existing appeal
The best Rule 28(j) letter has an obvious anchor in the briefing. Identify the exact page where the relevant issue was presented. If oral argument refined the issue, identify the point argued orally with enough specificity for the panel to place it.
Then ask:
Was the issue preserved in the district court or agency?
Was it included in the statement of issues?
Was it developed in the opening brief rather than first appearing in reply?
Does the new authority support the same argument, or does it create a different claim?
Does an exception to forfeiture potentially apply because controlling law changed while the appeal was pending?
An intervening controlling decision can sometimes justify consideration of a contention that could not reasonably have been made earlier. But that is not automatic, and the letter should not conceal the preservation question. If meaningful new argument is required, counsel should consider requesting leave for supplemental briefing.
3. Decide whether the authority applies to the pending case
“New law” and “law governing this appeal” are not always the same thing. The analysis may require asking whether:
the decision applies to cases still pending on direct review;
a statutory amendment has retroactive effect;
Congress specified an effective date or temporal reach;
applying the new rule would attach new legal consequences to completed conduct;
the decision changed substantive law or only procedure;
the judgment can be affirmed on an alternative ground; or
remand is required for the district court to apply the new standard first.
The Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994), supplies the central federal framework for statutory retroactivity. Constitutional and decisional-law changes can present different retroactivity questions. The Rule 28(j) letter should identify the issue concisely rather than assume every new authority governs every pending appeal.
4. Choose the correct filing
Development | Usually consider | Why |
New authority reinforces an issue already briefed | Rule 28(j) letter | The rule is designed for concise notice and explanation. |
New controlling decision materially restructures the analysis | Rule 28(j) letter plus a motion for leave to file supplemental briefing | A 350-word letter may not allow fair treatment of preservation, retroactivity, and remedy. |
Court asks specific questions | Court-ordered supplemental brief | Follow the order’s scope, deadline, and length exactly. |
New facts arise outside the record | A procedure other than Rule 28(j), if any is available | Rule 28(j) concerns authorities, not record supplementation. |
Opinion has already issued | Rehearing or other post-decision procedure | Rule 28(j) is a pre-decision notice mechanism. |
Immediate relief is needed to preserve the status quo | Stay or injunction motion, if legally available | A Rule 28(j) letter does not stay a judgment, injunction, or mandate. |
Do not assume that asking for supplemental briefing pauses decision. Unless the court orders otherwise, the panel can decide the case while a motion is pending.
5. Draft for the panel, not for the docket
A useful 28(j) letter is short because its logic is disciplined. A common structure is:
Under Federal Rule of Appellate Procedure 28(j), [party] submits [full citation], decided on [date]. The authority is pertinent to [issue], addressed at [brief page] and at oral argument. The court held [precise holding]. That holding [controls/supports/undermines/distinguishes] [specific proposition] because [concise reason]. The appropriate disposition is [affirmance/reversal/vacatur/remand], subject to [preservation or retroactivity point].
That is a framework, not boilerplate. The letter should use the new authority’s actual holding, identify its status, and explain the requested consequence without rhetoric. Pinpoint citations are valuable. Extensive string cites usually are not.
6. File promptly and through the correct system
Rule 28(j) sets no calendar deadline, but the letter must arrive before decision and must be filed promptly after counsel learns of the authority. Waiting can reduce credibility and creates the obvious risk that the panel will issue its opinion first.
Counsel in both circuits should comply with the applicable electronic-filing rules and serve all parties. The Eleventh Circuit states that counsel generally must file through CM/ECF unless exempted for good cause. Counsel should also confirm current event selections, formatting requirements, privacy rules, and any case-specific order before filing.
In the Fourth Circuit, Local Rule 28(e) expressly permits counsel, without leave of court, to submit a Rule 28(j) letter and serve all counsel of record. It also recognizes that the court may permit or direct additional memoranda. That distinction is useful: the letter provides notice; a memorandum provides room for additional argument only when authorized.
7. Decide whether and how to respond
The opposing party may respond promptly in no more than 350 words. A response is most useful when it can show that:
the new authority is not controlling;
the relevant language is dicta;
the case addresses a different statute, procedural posture, or record;
the cited argument was forfeited or waived;
the authority does not apply retroactively;
any error remains harmless;
an alternative ground independently supports the judgment; or
the proposed remedy exceeds what the new authority requires.
Not every letter needs a response. A reflexive filing may amplify weak authority. The decision should turn on whether silence could create a misleading impression about controlling law or the proper disposition.
Deadlines and decision-stage risks
Rule 28(j)’s operative deadline is practical: file promptly and before the court decides the case. The closer the case is to decision, the greater the need for speed, accuracy, and a realistic assessment of whether a motion is also necessary.
If the court has issued judgment, counsel should immediately review Federal Rules of Appellate Procedure 40 and 41, the circuit’s local rules, and the docket. A petition for panel rehearing or rehearing en banc is generally due within 14 days after judgment, with a longer period generally applicable in civil cases involving the United States or its officer or agency, but exceptions and case-specific orders matter. A petition for rehearing is not simply a longer 28(j) letter; it must satisfy the governing standards and exact deadline.
A Rule 28(j) filing does not:
extend a rehearing or certiorari deadline;
stay the judgment or mandate;
reopen the appellate record;
preserve an argument that governing law treats as abandoned;
guarantee supplemental briefing or oral argument; or
require the court to discuss the new authority in its opinion.
What evidence should counsel review?
Although a Rule 28(j) letter does not submit evidence, record review remains essential. Before stating that an intervening authority changes the result, counsel should confirm:
where the issue was raised and ruled on below;
where it appears in the opening and response briefs;
whether the relevant facts are undisputed or depend on factfinding;
whether objections, motions, offers of proof, or proposed instructions preserved the point;
whether the judgment rests on independent grounds;
whether the new authority changes the remedy as well as liability; and
whether any factual premise in the letter has an accurate record citation in the existing briefs.
If application of the new law requires facts the trial court never found, the strongest appellate request may be vacatur and remand—not an appellate merits ruling.
Forum and potential appeal consequences
The forum matters because the Fourth and Eleventh Circuits apply their own preservation, precedent, harmless-error, and remedial doctrines. A Supreme Court opinion binds both circuits. A published decision from the circuit hearing the appeal ordinarily has much greater force than an out-of-circuit case. An unpublished opinion may be persuasive but must be cited consistently with Federal Rule of Appellate Procedure 32.1 and the relevant local rules.
Depending on the authority and the record, the panel may:
affirm because the new decision does not alter the result;
affirm on an alternative preserved ground;
reverse outright;
vacate and remand for application of the new rule;
request supplemental briefing;
order reargument;
hold the appeal pending another case;
address forfeiture or harmless error; or
decide that the intervening development makes some or all of the case moot.
The remedy should be addressed deliberately. A letter that shows why authority matters but says nothing about what the panel should do leaves the key appellate question unanswered.
Authority block
Federal Rule of Appellate Procedure 28(j): Governs notice of pertinent and significant supplemental authorities after briefing or oral argument and imposes a 350-word limit on the letter and any response. See the Fourth Circuit’s current Rule 28 page.
Fourth Circuit Local Rule 28(e): Allows a Rule 28(j) letter without leave and permits the court to authorize or direct additional memoranda. See the Fourth Circuit’s federal and local appellate rules.
Eleventh Circuit rules and filing guidance: Counsel should consult the court’s current rules and procedures and briefing and filing instructions.
Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017): A Rule 28(j) letter is not the proper means to advance or preserve an argument omitted from the briefs.
Alvarez v. Lynch, 828 F.3d 288, 295 n.7 (4th Cir. 2016): The court will not countenance new arguments presented as supplemental authority.
United States v. Cisson, 33 F.4th 185, 191–92 (4th Cir. 2022): Discusses circumstances in which an intervening circuit or Supreme Court decision may permit a party to raise a contention while a direct appeal remains pending.
Landgraf v. USI Film Products, 511 U.S. 244 (1994): Provides the leading framework for determining whether a federal statute applies retroactively.
Federal Rules of Appellate Procedure 40 and 41: Govern rehearing and the mandate after judgment; they become critical if the new authority appears after the panel has decided the appeal.
Rules, electronic-filing procedures, and local requirements can change. Counsel should verify the versions in force on the filing date.
Why Biazzo Law’s appellate perspective matters
A Rule 28(j) letter is only 350 words, but the judgment behind it extends across the entire appeal. Counsel must understand preservation, binding precedent, retroactivity, the record, harmless error, remedy, rehearing, mandate timing, and possible Supreme Court review before choosing those words.
Biazzo Law approaches these filings through an appellate-aware litigation framework. That includes federal and state coverage, injunction readiness when a change in law affects immediate business obligations, and a Supreme Court and amicus lens when the new authority may reshape the question presented or the broader stakes. The objective is not to file a letter merely because a new case exists. It is to identify the development that can legitimately change the panel’s analysis and present it in the procedurally correct form.
Learn more about Biazzo Law’s federal appellate litigation practice, read how courts determine which law applies when the law changes during an appeal, and review the related limits on raising a new argument in an appellate reply brief.
Frequently asked questions
What is a Rule 28(j) letter?
It is a short filing that alerts a federal court of appeals to pertinent and significant legal authority that came to a party’s attention after its brief was filed, including after oral argument but before decision. The letter must explain the authority’s relevance and connect it to the brief or oral argument.
Is there a deadline for a Rule 28(j) letter?
There is no fixed number of days in Rule 28(j). The filing must be prompt and must reach the court before decision. Counsel should act as soon as the authority and its effect can be responsibly evaluated.
How long can a Rule 28(j) letter be?
The body is limited to 350 words. Any response is subject to the same limit. The constraint favors a precise holding, a specific briefing reference, and a clear statement of consequence.
Can a party make a new argument in a Rule 28(j) letter?
Ordinarily, no. The letter should relate new authority to an issue already presented. If an intervening controlling decision creates a genuinely new legal basis that could not reasonably have been raised earlier, counsel should analyze preservation law and may need to request supplemental briefing rather than force the point into a 28(j) letter.
Can a Rule 28(j) letter include new evidence?
No. Rule 28(j) concerns supplemental legal authorities, not new evidence or expansion of the appellate record. A new factual development requires a separate procedural analysis.
Should the other side respond to every 28(j) letter?
No. A response is appropriate when necessary to correct the authority’s status, distinguish its holding, address preservation or retroactivity, show harmlessness, or explain a different remedy. If the authority is cumulative or immaterial, silence may be more effective.
What if the law changes after the appellate court issues its opinion?
Rule 28(j) is generally no longer the right vehicle. Counsel should immediately assess rehearing deadlines, mandate status, stay options, and possible certiorari. Those deadlines are short and are not extended by informal notice to the court.
Does filing a Rule 28(j) letter stay the judgment or mandate?
No. A party needing interim relief must use the applicable stay or injunction procedure. The letter itself neither suspends the judgment nor stops issuance of the mandate.
Schedule a litigation strategy review
If new authority may affect a pending Fourth or Eleventh Circuit appeal, timing and procedural fit matter as much as the citation itself. Biazzo Law can assess whether the development calls for a Rule 28(j) letter, supplemental briefing, a stay request, rehearing strategy, or preservation for Supreme Court review.
This article provides general information, not legal advice. Appellate rules, deadlines, and the effect of intervening authority depend on the case, court, and current law.
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