United States: Updates To The Federal Circuit Rules Of Practice

On March 30, 2016, the United States Court of Appeals for the Federal Circuit released its amended Rules of Practice. Many amendments to the Rules were meant to clarify existing requirements or to reflect current CM/ECF processes. Other amendments, however, alter long-held practices at the Federal Circuit. While practitioners should carefully study all amendments to the Rules, we discuss several noteworthy changes below relating to confidentiality, timing, and format requirements.

Confidentiality

The Federal Circuit modified Rules 11, 17, 27, 28, and 30 to reflect its new approach to handling material subject to protective orders. For instance, material will now automatically lose its status as subject to protective order if it appears without confidential markings in motion papers or a brief. Rule 11(c); Rule 17(e). Moreover, Rules 27 and 28 set forth new requirements for marking confidential material in motions and briefs, including a 15-word limit, absent a motion with required justification. Rule 27(m); Rule 28(d). A 50-word limit applies in cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b). Rule 27(m)(1)(A); Rule 28(d)(1)(A). For briefs, a new subparagraph requires parties to attempt to agree on confidential markings. Rule 28(d)(5). And under Rule 30(h)(1), material that has lost its coverage under a protective order may not be marked confidential in appendices or addenda. Rule 30(h)(1).

Timing

The latest amendments also reiterate the importance of timely filing a notice of appeal. For instance, the Federal Circuit amended Rule 4 to clarify language from the former text. Instead of reading "clerk may return a notice of appeal that is untimely," the new Rule 4 states that the Federal Circuit "cannot waive the untimely filing of a notice of appeal." The Practice Notes, however, point out that "[c]ounsel should also be aware of the district court's authority under Federal Rule of Appellate Procedure 4 to extend or reopen the time for appeal."2

Another important change involves the calculation of time to file a responsive document. Now, under Rule 26(c), three additional days are not added when the original document was filed through CM/ECF, because the Federal Circuit considers service by email through CM/ECF to be delivered when transmitted.

The Federal Circuit rules governing late entry of appearance and conflicts with oral argument dates have been modified too. Under Rule 47.3(c), an Entry of Appearance (EOA) filed after a case is assigned to a panel will now be referred to the panel as a motion. And whenever there is a change in EOA information, including email addresses, an amended EOA must be filed. Moreover, the clerk's office will issue a Notice of Docket Activity (NDA) when a case is fully briefed, and counsel should advise the Clerk of Court in writing within seven days of the NDA of scheduling conflicts for the next three court weeks, or thereafter as soon as such conflicts are known. Rule 34, Practice Notes. Counsel should not wait until an actual conflict arises.

Additionally, the table embedded in the Practice Notes for Rule 15 was amended to update the relevant agencies, statutes, and filing deadlines for a petition for review or notice of appeal. The word "only" was inserted in the section on intervention to indicate that the United States is often the only appellee or respondent.

Formatting

Several amendments to Rules 28 and 30 changed the requirements for presenting and citing materials in the addendum and appendix. Specifically, Rule 28(a)(11) now requires submitting addendum material with the corresponding appendix page numbers following the numbering format specified in Rule 30(b)(4)(E) (e.g., "Appx134," "Appx3-7," or "SAppx1185"). Moreover, Rule 30(b)(4)(E) now requires the use of Bates numbering for all pages of an appendix or supplemental appendix.

Of particular importance to appellants from the Patent Trial and Appeal Board, the Trademark Trial and Appeal Board, or the Director under 15 U.S.C. § 1071(a), the Federal Circuit also amended Rule 15(a), reducing the number of required copies of a petition for review or notice of appeal from three to only one. Rule 15(a) further sets the period for payment of fees to fourteen days after filing and requires attorneys to include an email address with the petition for review or notice of appeal.

For Certificates of Interest (COIs), Rule 26.1 now emphasizes that attorneys are required to file them with all briefs and motions. Additionally, Rules 47.4(a) and (b) now require additional information on potential conflicts, including parent/subsidiaries owning more than 10% of a company. Notably, Rule 47.4(b) now requires parties to file amended COIs within seven days of any change in the information required under Rule 47.4(a).

The Federal Circuit also made changes to the Practice Notes accompanying Rule 28. In particular, the notes now allow any party to place the language of a patent or claim at issue on the inside of the front cover of the brief, provided the same language is also included in the brief. The duplicate language is not counted toward the word limit set forth in Fed. R. App. P. 32(a)(7).

Footnotes

1 United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised: March 2016 (hereinafter "Rules").

2 For Merit System Protection Board (MSPB) cases, the court amended Rules 15(c) and 15(c)(2) in direct response to the Supreme Court's decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012). In Kloeckner, the Supreme Court held that a federal employee who claims that an agency action appealable to the MSPB violates a federal antidiscrimination statute listed in the Civil Service Reform Act (CSRA) should seek judicial review in district court, not in the Federal Circuit, regardless of whether the MSPB decided the case on procedural grounds or on the merits. Amended Rules 15(c) and 15(c)(2) clarify the practice in discrimination cases following Kloeckner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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