December 1, 2018 Changes to Federal Circuit Rules And Procedures Regarding Filing of Briefing Documents

John C. Kruesi, Esq.

Effective December 1, 2018, the United States Court of Appeals for the Federal Circuit adopted amendments to Federal Circuit Rules of Practice 25, 28, 29, 30, 31, 32 and 44. These changes will apply to all cases, and to all documents, filed after that date.

These revisions implement a previously announced change in filing procedures and include a major shift in the way the Court will process the filing of briefs and appendices. Under the old system, the briefing documents would be first tendered to the Court via the CM/ECF e-Filing system and then be checked in by the clerks. They would either enter the brief as filed (with the original upload date as the file date) or issue a notice of defiance to correct any defects. The uploaded files would be locked to all but the parties via a link in the CM/ECF filing notice until they were entered by the clerk as filed. Paper copies would be due five days from that approval.

The updated rules eliminate the tendering process so that the briefing documents are immediately noted as filed when uploaded and will be publically available without delay. The clerk’s office will still check in the briefs and issue a non-compliance notice requiring a corrected filing for any deficiencies. Paper copies are still required but now they will be due after the briefing is complete. At that point, the Court will issue a notice that the briefing is complete which will include request copies for paper briefing to be submitted typically within five days. Confidential paper copies will still have to be served on paper, on the e-Filing/upload date, since electronic access to confidential document is limited to the Court. However, the Court’s paper confidential copies should not be submitted until after all the briefing is complete and the appropriate notice and request issues from the Court.

The procedure for filing petitions for rehearing or for rehearing en banc remain unchanged. Those documents continue to be immediately electronically available upon upload and paper copy timing runs from the date of e-Filing, as required by Fed. Cir. R. 25(c)(1)(C)-(F).

(Note: In addition to the changes in filing procedures, the amended rules add a practice note to R. 44 clarifying the requirement to file a separate notice regarding constitutional challenges. Raising those issues within the brief is not sufficient notice.)

In an effort to better support our clients with coming changes, we have curated a list of useful links and resources. If you have questions about how to proceed with filing your briefing documents, please contact staff counsel at Counsel Press to assist you in filing your appeal successfully.

Useful Links:

You can read the Court's official announcement HERE.

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