The Court of Appeals for the Federal Circuit, unlike the 12 other Circuit Courts of Appeals, hears cases from across the nation, where the subject matter falls within its legislative mandate, including patents and several other important areas of the law. See 28 U.S. Code §1295. A case may be appealed to the Federal Circuit from any district court, as well as other special courts and some administrative agencies, including the Patent Trial and Appeal Board and the Trademark Trial and Appeal Board. See id.
The judges of the Federal Circuit are appointed by the President, upon advice and consent of the Senate and they serve for life. See U.S. Const. art. II, §2; art. III, §2. There are 12 judges in active service, as well as some eligible senior judges handling fewer cases. The current chief judge is Sharon Prost.
Federal Appellate Rules and Federal Circuit Rules
The Federal Rules of Appellate Procedure apply to appeals before the Federal Circuit, along with the Federal Circuit Rules. In practice, the Federal Circuit Rules should be consulted, as any changes or inapplicable provisions in the Federal Rules of Appellate Procedure are indicated in that version, and govern.
The forewarned appellate litigator should maintain familiarity with the applicable provisions of these rules relating to how a case moves to the Federal Circuit to ensure no procedural hurdles go unmet. Moreover, the rules provide detailed instructions regarding the Federal Circuit’s esoteric requirements on font, spacing, word count, appendix creation, motion practice, and many other important steps. At each stage, the practitioner should consult both the Federal Rules of Appellate Procedure and the Federal Circuit Rules to ensure that all submissions will satisfy both sets of rules.
Initiating an Appeal
All appeals begin with a Notice of Appeal being filed in the tribunal below, within the applicable deadline. For most district court cases, this is within 30 days of entry of final judgment. See 29 U.S.C. §2107; Fed. R. App. Proc. 4; Fed. Cir. R. 4. Once the appeal is docketed in the Federal Circuit, counsel for both parties must file their entry of appearance (see Form 8) and certificate of interest (see Form 9) within 14 days of docketing. Counsel should file a docketing statement within 14 days of docketing. The Clerk’s office uses this statement to determine whether the case should be referred for mediation. See Form 26.
Briefs and Appendix
The appellant’s brief is due 60 days after docketing. Fed. Cir. R. 31(a)(1)(A). The appellee must serve its initial brief within 40 days after the appellant’s brief is served. Fed. Cir. R. 31(a)(2). The reply brief is due within 14 days after service of the appellee’s brief. Fed. R. App. Proc. 31(a)(1). It is not unusual for appellants and appellees to request modest extensions to these deadlines, and they are liberally granted. As noted, the Federal Circuit Rules prescribe preferred cover and binding, as well as print size of briefs, word count, footnotes, and other requirements. The appellant’s and appellee’s opening briefs are limited to no more than 14,000 words and the appellant’s reply brief must contain no more than 7,000 words. Fed. Cir. R. 32(a). Counsel must file a certificate of compliance with type-volume limitation, typeface requirements, and type style requirements pursuant to Federal Circuit Rule 32(a). See Form 19.
In cases that will be heard by a three-judge panel, such as appeals in patent cases, the parties must send six paper copies of the briefs to the court within five business days of the court’s acceptance of the electronic brief. Fed. Cir. R. 25(c)(1)(A). For petitions for panel rehearing, petitions for en banc hearing or rehearing, a combined petition, or for briefing in an en banc case, other rules apply. Fed. Cir. R. 25(c)(C)–(F).
For motion practice, no paper copies are required for briefs filed electronically. See, e.g., Fed. Cir. R. 27(j) (paper copies of any motion, response or reply not required if motion filed by counsel through CM/ECF, but if motion filed by a pro se party, then one paper copy must be filed); Fed. Cir. R. 18(b)(1) (motion for stay pending review); Fed. Cir. R. 8(b)(2) (motion for stay or injunction pending appeal).
Within seven days after the last brief is filed, the appellant must prepare and file six paper copies of the appendix, which provides relevant materials from the proceeding below, and serve one copy on counsel for each party separately represented. See Fed. R. App. Proc. 30(a)(3); Fed. Cir. R. 30(a)(4). The Federal Circuit Rules provide specific instructions on what should and should not be included in the appendix, and prohibit indiscriminate citation to blocks of record pages. Fed. Cir. R. 30. It is not uncommon for the clerk to reject an appendix and require that it be resubmitted in compliance with this provision. The Rules also instruct how the Appendix should be arranged and paginated. Fed. Cir. R. 30(c). The Rules encourage parties to agree on the contents of the Appendix and provide a mechanism for designation in the absence of agreement. Fed. Cir. R. 30(b). If confidential material must be included in the briefs, the Rules permit two versions of the Appendix to be filed to protect confidentiality. Fed. Cir. R. 30(h).
While the appellate panel receives all elements of the record that are necessary to review the briefs, appellate judges have a very different focus than the district court judge holds below. Thus, the briefing must hone in on key points, such as the applicable standard of review, what errors were made below and what impact those errors had on the final result, and what relief the law and justice requires. While a scattershot approach to the appeal might feel more comforting for litigants because it ensures that any ground for relief is presented, it is not appreciated by judges who must sift through the arguments to determine which, if any, warrants reversal. Moreover, too many arguments in the brief will make it difficult to adequately address the more important or dispositive arguments.
The court determines how much time will be permitted for oral argument, which is typically 15 minutes per side. The appellant is permitted to divide its time between main argument and rebuttal, but appellees may not. The court also has provided a Notice to Counsel for Oral Argument that provides instructions on checking in before the argument, how the names of the panel are provided to the litigants, and what the lights on the digital clock on the podium indicate. See U.S. Court of Appeals for the Federal Circuit, Notice to Counsel for Oral Argument.
The normal, respectful decorum expected in any courtroom applies similarly in the Federal Circuit, and is set forth by the court on the Federal Circuit’s website. See U.S. Court of Appeals for the Federal Circuit, Notice on Courtroom Decorum. The Federal Circuit typically hears oral argument during the first week of each month, and access to the courtroom is open to the public, upon proper identification and security screening. Each panel is unique: The judges on a particular panel often will ask questions about the arguments, and regardless, will be well versed on the briefs. It is recommended that counsel be fully prepared for the argument by not only planning an explanation of the issues on appeal, but also by practicing how to succinctly and directly answer the questions expected and to pinpoint factual citations to the Appendix. Observing different panels in action also is highly recommended, or at least listening to the publicly available audio transcripts.
After the case has been argued, it will be submitted to the court. A decision will typically be issued about four to six months later.
A party may request rehearing by the panel or en banc (or a combination of the two), within 30 days of entry of judgment. Fed. Cir. R. 40(e). A request for en banc hearing must include a statement of counsel that indicates, based on counsel’s professional judgment, that the panel’s decision is contrary to specific decisions by the Supreme Court or requires an answer to one or more precedent-setting questions of exceptional importance. See Fed. Cir. R. 35(b). If the court so desires, it may invite a response from the other party, which must be provided within 14 days. See Fed. R. App. Proc. 40(a)(3).
Once the court has finally determined the appeal, the mandate issues—either seven days from denial of rehearing or 37 days if no request for rehearing is filed. See Fed. Cir. R. 41(b). The appeal has then ended unless a petition for writ of certiorari is filed with the Supreme Court of the United States.
Practice before the Federal Circuit has its own specific and unique rules. Practitioners will best serve their clients through mastery of the rules and familiarity with the court’s workings.
Gianna Cricco-Lizza is an associate and Ralph A. Dengler is a partner at Venable.