Federal Circuit Appeals: An Overview
Appeals to the United States Court of Appeals for the Federal Circuit are unlike any other filing. Even experienced appellate attorneys sometimes have difficulty remembering the steps for taking an appeal in the Federal Circuit. This article will serve as an overview of some of the most important points to remember throughout the process.
Federal Circuit appeals move more quickly than in many courts. Preliminary forms, including a notice of appearance, the Certificate of Interest, and the Docketing Statement are due within 14 days of the appeal being docketed. In an appeal from a court, the appellant’s opening brief is due within 60 days of docketing, whereas in an appeal from an agency, it is due within 60 days of when the certified list is sent to the Federal Circuit. The appellee’s brief is due 40 days after the appellant’s brief. The reply brief is due 14 days after the appellee’s brief.
Unlike in most circuits, the joint appendix is not filed on the date of the opening brief in most cases. Nevertheless, it must be prepared and paginated prior to filing the appellant’s opening brief so that the parties may cite to it in their briefing. The pagination must be done using the abbreviation “Appx” followed directly by the appropriate page number, without any spaces. Leading zeros are permissible as long as this strict format is followed. For example, page 5 of the appendix may be paginated as “Appx5” or “Appx0005”.
The appendix is due to be filed no more than seven days after the reply brief. It must include the complete docket entries from below, any jury charges, verdicts or interrogatories; and in a patent case, the complete patent in suit. It must also include any pages of the record that were actually cited in the briefs. The court expressly prohibits including full versions of certain documents, or the indiscriminate inclusion of large chunks of documents not directly cited. In patent cases, a few additional documents relating to the patent in suit are required to be included in the appendix.
The Federal Circuit opted out of the December 1, 2016 changes to the Federal Rules of Appellate Procedure regarding word limits in briefing. In doing so, the Federal Circuit retained the previously enforced 14,000 word limit on principal briefs. There is a 16,500 word limit on appellee-cross-appellant briefs, and a 7,000 word limit on reply briefs.
Parts of a Brief
An appellant’s brief requires a copy of the certificate of interest, tables of contents and authorities, a statement of related cases, a jurisdictional statement, a statement of issues, a statement of the case, a summary of the argument, an argument including standard of review, a conclusion including relief sought, an addendum (see below), proof of service, and a certificate of compliance.
An appellee may not include the jurisdiction statement, statement of the issues, statement of the case, statement of the facts, or standard of review unless there is specific disagreement with the appellant in that particular area. The reply brief should respond to the issues raised by the appellee brief.
Briefs in this court often involve issues for which graphics and pictures are necessary. Such graphics and pictures are permissible and may be printed in color.
Citations to the appendix must carefully follow the “Appx__” format. When citing a range of pages, “Appx3-17” is the appropriate format. If the brief contains references such as “Appx3-Appx17,” the brief will be marked deficient, and the party will be required to correct it and refile.
An appellant’s brief must include an addendum, which is usually bound with the opening brief. It should contain the judgment, order or decision in question, along with any opinion, memorandum, findings or conclusion supporting it. In a patent case, the patent in suit is usually contained within the addendum. The documents in the addendum must also be found in the appendix, and the corresponding “Appx__” numbers should be found on the pages included in the addendum.
Many cases in this court have confidential elements. The court has specific rules for preparing and handling the filing of briefs and appendices that contain confidential material.
Each brief may mark up to fifteen confidential words or numbers. If that same word or number is repeated multiple times throughout the brief, it is only counted once toward the fifteen-word allotment. Words marked as confidential in the previously filed brief in the same case do not count toward the fifteen-word allotment. If it is necessary for more words to be marked confidential in a single brief, a motion must be made to the court.
When parts of the brief have been redacted and marked confidential, two version of the brief will need to be filed. The confidential version should have no redactions and should be marked “confidential.” The non-confidential brief will contain the appropriate redactions. The cover of the non-confidential brief should be so labeled, and each page containing a redaction should be marked as having confidential material deleted. Additionally, the table of contents of the non-confidential brief should briefly describe the nature of the confidential material which is redacted therein.
Both the confidential and non-confidential briefs should be filed through ECF in the Federal Circuit. Only six paper copies of the confidential brief are required to be filed. In some cases, two paper copies of the confidential brief are required to be served.
Similarly, two copies of the appendix need to be filed in cases where the appendix contains confidential material. There is no word limit as to the amount that may be redacted in the non-confidential version of the appendix, but each page containing redactions and the table of contents for the appendix must be labeled in a similar fashion to the non-confidential brief. In addition to ECF service and filing, one paper copy of the confidential version of the appendix must be served.
Beginning March 19, 2018, CM/ECF filings in the Federal Circuit will use NextGen PACER login credentials. Any existing login credentials must be upgraded. Detailed instructions may be found here.
AppealTech regularly assists clients with filings in the Federal Circuit. We are happy to answer any questions you have on your Federal Circuit appeal. Please give us a call at (888)619-2000.
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