Federal Circuit Sends an Important Message – Ongoing Duty to Update Disclosure Information

John C. Kruesi, Esq. The Federal Circuit recently sent a mass e-mail to its CM/ECF users emphasizing the duty to file an amended Certificate of Interest (local disclosure form) whenever needed, rather than simply filing the updated disclosure as part of a brief or reply. The Court might have sent this e-mail as part of a review of its operating procedures regarding recusal of judges in reaction to recent events leading to the change in Chief Judge. However, it is a valuable tip for any case. In most courts, one of the initial forms filed will be some form of a FRAP 26.1 corporate disclosure. This happens well before briefing and usually before any substantive filing in order to screen for conflicts. Changes regarding your client, additional counsel added or even a need to clarify the disclosure in light of new information should trigger an updated filing on your part. Not only will this protect you from “adverse action,” but will avoid additional problems and expense for your client should a conflict be identified after a judge has been involved with your case. Changing judges in midstream is not normally a desirable outcome, but it could be much worse if rulings have been made and the subsequent disclosure gives the appearance of impropriety. At the very least, that would give your opponent grounds to request a rehearing or reconsideration.

Below is the text of the email from the U.S. Court of Appeals for the Federal Circuit.

“IMPORTANT MESSAGE: All counsel of record are reminded of their responsibility per Fed. Cir. R. 47.4(a), Fed. Cir. R. 47.3 and ECF-2(E) to promptly submit an amended Certificate of Interest (COI) and/or Entry of Appearance (EOA) as information changes during the pendency of the appeal. Both documents are used by the Court to identify potential case conflicts. Having current, accurate information is vital to this function. Failure to comply with these Rules may delay the timely processing of your case or result in adverse action.

If you have a case with the Federal Circuit and your COI or EOA filed on the electronic docket does not reflect the most accurate information, promptly submit a new COI and/or EOA via CM/ECF (indicate Amended or Corrected in the event). The updated COI should not only be contained within the brief, but should be filed as a separate document.”

For assistance with the events, please refer to the CM/ECF User Guide at: http://www.cafc.uscourts.gov/images/stories/CMECF_Guide_final_version.pdf.

Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Our Washington, DC office focuses on rule-compliant appellate filings in the Maryland, DC and Virginia state and district courts, as well as the D.C. Court of Appeals, 4th Circuit Court of Appeals and Federal Circuit Court of Appeals. We offer unparalleled in-depth expertise nationwide in all state & federal courts through our local offices.

Tagged: United States Court of Appeals for the Federal Circuit, Appellate Practice, Appellate Procedure, Litigation