1

United States Court of Appeals for the 

Federal Circuit

Federal Rules of Appellate Procedure 

Federal Circuit Rules of Practice

Practice Notes And Forms

Federal Circuit Attorney Discipline Rules

December 2017

Washington, DC

www.cafc.uscourts.gov

United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 1

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Circuit Justice

The Chief Justice

Chief Judge

Hon. Sharon Prost

Circuit and Senior Circuit Judges

Hon. Pauline Newman

Hon. Haldane Robert Mayer

Hon. S. Jay Plager

Hon. Alan D. Lourie

Hon. Raymond C. Clevenger, III

Hon. Alvin A. Schall

Hon. William C. Bryson

Hon. Richard Linn

Hon. Timothy B. Dyk

Hon. Kimberly A. Moore

Hon. Kathleen M. O’Malley

Hon. Jimmie V. Reyna

Hon. Evan J. Wallach

Hon. Richard G. Taranto

Hon. Raymond T. Chen

Hon. Todd M. Hughes

Hon. Kara F. Stoll

Circuit Executive and Clerk of Court

Peter R. Marksteiner

Officers of the Court & Senior Staff

Circuit Librarian, John D. Moore

Senior Staff Attorney, J. Douglas Steere

Senior Technical Assistant, Marilyn Wennes

Operations and Administrative Services, Dale Bosley

Director of Information Technology, Mona Harrington

Chief Deputy Clerk, Jarrett B. Perlow
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 2

Advisory Council

Carter G. Phillips, Chair

Tina M. Chappell

The Honorable Leonard Davis (Retired)

Tara D. Elliott

David Folsom

Susan Tsui Grundmann

The Honorable James F. Holderman (Retired)

Martin F. Hockey, Jr.

Matthias Kamber

Nathan K. Kelley

Kevin Parton

Robert L. Stoll

Deanna Tanner Okun

David O. Taylor

John M. Whealan
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 3

TABLE OF CONTENTS

FOREWORD

AMENDMENTS AND REVISIONS CONTAINED IN THIS EDITION

TITLE I. APPLICABILITY OF RULES

 FRAP Rule 1. Scope of Rules; Definition; Title

 Federal Circuit Rule 1. Scope of Rules; Title 

 FRAP Rule 2. Suspension of Rules

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

 FRAP Rule 3. Appeal as of Right—How Taken

 Federal Circuit Rule 3. Appeal as of Right—How Taken

 Rule 4. Appeal as of Right—When Taken

 Federal Circuit Rule 4. Appeal as of Right—Untimely Notice

 FRAP Rule 5. Appeal by Permission

 Federal Circuit Rule 5. Appeal by Permission

 FRAP Rule 6. Appeal in a Bankruptcy Case 

 FRAP Rule 7. Bond for Costs on Appeal in a Civil Case

 FRAP Rule 8. Stay or Injunction Pending Appeal

 Federal Circuit Rule 8. Stay or Injunction Pending Appeal

 FRAP Rule 9. Release in a Criminal Case

 FRAP Rule 10. The Record on Appeal

 Federal Circuit Rule 10. The Record on Appeal

 FRAP Rule 11. Forwarding the Record

 Federal Circuit Rule 11. Forwarding the Record

 FRAP Rule 12. Docketing the Appeal; Filing a Representation Statement; 

Filing the Record

 Federal Circuit Rule 12. Notice of Docketing

 FRAP Rule 12.1 Remand After an Indicative Ruling by the District Court on 

a Motion for Relief That Is Barred by a Pending Appeal

TITLE III. APPEALS FROM THE UNITED STATES TAX COURT

 FRAP Rule 13. Review of a Decision of the Tax Court

 FRAP Rule 14. Applicability of Other Rules to the Review of a Tax Court 

Decision
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 4

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN 

ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER

 FRAP Rule 15. Review or Enforcement of an Agency Order—How Obtained; 

Intervention

 Federal Circuit Rule 15. Review of an Agency Order - How Obtained

 FRAP Rule 15.1 Briefs and Oral Argument in a National Labor Relations 

Board Proceeding

 Rule 16. The Record on Review or Enforcement

 Rule 17. Filing the Record

 Federal Circuit Rule 17. Filing the Record

 Rule 18. Stay Pending Review

 Federal Circuit Rule 18. Stay Pending Review

 Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part

 Rule 20. Applicability of Rules to the Review or Enforcement of an Agency

Order

 Federal Circuit Rule 20. Applicability of Rules to the Review of an Agency 

Order

TITLE V. EXTRAORDINARY WRITS

 Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

 Federal Circuit Rule 21. Writs of Mandamus and Prohibition, and Other 

Extraordinary Writs

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

 FRAP Rule 22. Habeas Corpus and Section 2255 Proceedings

 FRAP Rule 23. Custody or Release of a Prisoner in a Habeas Corpus 

Proceeding

 FRAP Rule 24. Proceeding in Forma Pauperis

 Federal Circuit Rule 24. Proceeding in Forma Pauperis

TITLE VII. GENERAL PROVISIONS

 FRAP Rule 25. Filing and Service

 Federal Circuit Rule 25. Filing and Service

 FRAP Rule 26. Computing and Extending Time

 Federal Circuit Rule 26. Computing and Extending Time

 FRAP Rule 26.1 Corporate Disclosure Statement

 Federal Circuit Rule 26.1. Corporate Disclosure Statement

 FRAP Rule 27. Motions

 Federal Circuit Rule 27. Motions

 FRAP Rule 28. Briefs
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 5

 Federal Circuit Rule 28. Briefs

 FRAP Rule 28.1 Cross-Appeals

 FRAP Rule 29. Brief of an Amicus Curiae

 Federal Circuit Rule 29. Brief of an Amicus Curiae

 FRAP Rule 30. Appendix to the Briefs

 Federal Circuit Rule 30. Appendix to the Briefs

 FRAP Rule 31. Serving and Filing Briefs

 Federal Circuit Rule 31. Serving and Filing Briefs

 FRAP Rule 32. Form of Briefs, Appendices, and Other Papers

 Federal Circuit Rule 32. Form of Briefs, Appendices, and Other Papers

 FRAP Rule 32.1 Citing Judicial Dispositions

 Federal Circuit Rule 32.1. Citing Judicial Dispositions

 FRAP Rule 33. Appeal Conferences

 Federal Circuit Rule 33. Appeal Conferences

 Federal Circuit Rule 33.1. Mediation Guidelines

 FRAP Rule 34. Oral Argument

 Federal Circuit Rule 34. Oral Argument

 FRAP Rule 35. En Banc Determination

 Federal Circuit Rule 35. En Banc Determination

 FRAP Rule 36. Entry of Judgment; Notice

 Federal Circuit Rule 36. Entry of Judgment; Judgment of Affirmance 

Without Opinion

 FRAP Rule 37. Interest on Judgment

 FRAP Rule 38. Frivolous Appeal—Damages and Costs

 FRAP Rule 39. Costs

 Federal Circuit Rule 39. Costs

 FRAP Rule 40. Petition for Panel Rehearing

 Federal Circuit Rule 40. Petition for Panel Rehearing

 FRAP Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

 Federal Circuit Rule 41. Issuance of Mandate

 FRAP Rule 42. Voluntary Dismissal

 FRAP Rule 43. Substitution of Parties

 FRAP Rule 44. Case Involving a Constitutional Question When the United 

States or the Relevant State is Not a Party

 FRAP Rule 45. Clerk’s Duties

 Federal Circuit Rule 45. Clerk of Court’s Duties

 FRAP Rule 46. Attorneys

 Federal Circuit Rule 46. Attorneys

 FRAP Rule 47. Local Rules by Courts of Appeals

 Federal Circuit Rule 47.1. Sessions and Places of Holding Court

 Federal Circuit Rule 47.2. Panels

 Federal Circuit Rule 47.3. Appearance

 Federal Circuit Rule 47.4. Certificate of Interest

 Federal Circuit Rule 47.5. Statement of Related Cases
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 6

 Federal Circuit Rule 47.7. Attorney Fees and Expenses Incurred in This 

Court

 Federal Circuit Rule 47.8. In Camera Proceedings

 Federal Circuit Rule 47.9. Petition for Judicial Review Under 5 U.S.C. § 

7703(d)

 Federal Circuit Rule 47.10. Dismissal of a Bankruptcy Stay Case

 Federal Circuit Rule 47.11. Quorum

 Federal Circuit Rule 47.12. Action for Judicial Review Under 38 U.S.C. § 502

 FRAP Rule 48. Masters

 Federal Circuit Rule 49. Seal of the Court

 Federal Circuit Rule 50. Employee and Former Employee

 Federal Circuit Rule 51. Complaint of Judicial Misconduct or Disability

 Federal Circuit Rule 52. Fees

 Federal Circuit Rule 53. Judicial Conference

 Federal Circuit Rule 54. Library

FEDERAL CIRCUIT ATTORNEY DISCIPLINE RULES

FEDERAL CIRCUIT FORMS
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 7

Foreword

This document contains the rules for proceedings in the United States Court of 

Appeals for the Federal Circuit. These rules include the Federal Rules of Appellate 

Procedure and the corresponding Federal Circuit Rules. The Federal Rules of 

Appellate Procedure appear on a shaded background for ease in distinguishing 

them from the Federal Circuit Rules that are on a white background. Certain 

provisions within the Federal Rules of Appellate Procedure are inapplicable to this 

court or have been replaced with information in the corresponding Federal Circuit 

Rule. Those inapplicable provisions are indicated in this document in strikethrough

text.

Practice Notes following the various rules are in boxed informational 

sections. These Practice Notes discuss matters that are often asked of the Clerk’s 

Office staff. Counsel may rely on the notes but may not use them to avoid 

controlling statutes or rules.

Other documents are available on the court’s website at www.cafc.uscourts.gov, 

including: Federal Circuit Forms, the Guide for Pro Se Petitioners and Appellants, 

Appellate Mediation Program Guidelines, Federal Circuit Attorney Discipline 

Rules, the court’s Internal Operating Procedures, and a Guide to Courtroom 

Decorum.

Inquiries about the Rules of Practice may be made to the Clerk’s Office at 202-275-

8000. Public access, e-mail and telephone hours for the Clerk’s Office are 8:30 a.m. 

to 4:30 p.m. (Eastern), Monday through Friday. Please check the court’s website for 

additional information and CM/ECF reference material that may be of assistance to 

you. If you do call the Clerk’s Office, please have these rules on hand. Counsel 

receiving advice by telephone are expected to confirm it in writing to the Clerk and 

to opposing counsel when that advice appears to authorize exceptions to these rules.

Comments on the rules are welcome. Please send comments to 

ChiefDeputyClerk@cafc.uscourts.gov or Clerk of Court, United States Court of 

Appeals for the Federal Circuit, 717 Madison Place, NW, Washington, DC 20439.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 8

Title I – Applicability of Rules

Federal Rule of Appellate Procedure 1

Rule 1. Scope of Rules; Definition; Title

(a) Scope of Rules.

(1) These rules govern procedure in the United States courts of appeals.

(2) When these rules provide for filing a motion or other document in the district 

court, the procedure must comply with the practice of the district court.

(b) Definition. In these rules, ‘state’ includes the District of Columbia and any 

United States commonwealth or territory.

(c) Title. These rules are to be known as the Federal Rules of Appellate Procedure.

Federal Circuit Rule 1

Rule 1. Scope of Rules; Title

(a) Reference to District and Trial Courts and Agencies.

(1) The terms “district court” and “trial court” include:

(A) the United States district courts;

(B) the United States Court of International Trade;

(C) the United States Court of Federal Claims; and

(D) if applicable, the United States Court of Appeals for Veterans 

Claims.

(2) The term “agency” includes an administrative agency, board, 

commission, bureau, or officer of the United States, including each of 

the following:

(A) the Patent Trial and Appeal Board;

(B) the Director of the United States Patent and Trademark Office;

(C) the Trademark Trial and Appeal Board;

(D) the United States International Trade Commission;

(E) the Secretary of Commerce acting under U.S. note 6 to 

subchapter X of chapter 98 of the Harmonized Tariff Schedule of

the United States (relating to importation of instruments or 

apparatus);

(F) the Secretary of Agriculture acting under 7 U.S.C. § 2461;

(G) the Merit Systems Protection Board;

(H) certain arbitrators;

(I) the Boards of Contract Appeals in federal agencies;
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 9

(J) the Secretary of Veterans Affairs acting under 38 U.S.C. § 502;

(K) the Equal Employment Opportunity Commission acting under 3 

U.S.C. § 454;

(L) the Federal Labor Relations Authority acting under part D of 

subchapter II of chapter 5 of title 3;

(M) the Secretary of Labor or the Occupational Safety and Health 

Review Commission, under part C of subchapter II of chapter 5 

of title 3; 

(N) the Office of Compliance acting under 2 U.S.C. § 1407(a)(1);

(O) the Government Accountability Office Personnel Appeals Board; 

or

(P) the Bureau of Justice Assistance.

(b) Rules of the Court of International Trade, Court of Federal Claims,

and Court of Appeals for Veterans Claims.

(1) Reference in these rules to the Federal Rules of Civil Procedure 

includes analogous rules of the Court of International Trade and the 

Court of Federal Claims.

(2) Reference in these rules to the Federal Rules of Civil Procedure 

includes rules of the Court of Appeals for Veterans Claims only where 

applicable, because that court’s rules are derived from the Federal 

Rules of Appellate Procedure.

(c) Title. These rules are to be known as the Federal Circuit Rules.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 10

Federal Rule of Appellate Procedure 2

Rule 2. Suspension of Rules

On its own or a party’s motion, a court of appeals may—to expedite its decision or 

for other good cause—suspend any provision of these rules in a particular case and 

order proceedings as it directs, except as otherwise provided in Rule 26(b).
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 11

Title II – Appeal from a Judgment or Order of a District Court

Federal Rule of Appellate Procedure 3

Rule 3. Appeal as of Right—How Taken

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of appeals 

may be taken only by filing a notice of appeal with the district clerk within the time 

allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with 

enough copies of the notice to enable the clerk to comply with Rule 3(d).

(2) An appellant’s failure to take any step other than the timely filing of a notice of 

appeal does not affect the validity of the appeal, but is ground only for the court of 

appeals to act as it considers appropriate, including dismissing the appeal.

(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the 

same way as an appeal from any other district court judgment.

(4) An appeal by permission under 28 U.S.C. §1292(b) or an appeal in a bankruptcy 

case may be taken only in the manner prescribed by Rules 5 and 6, respectively.

(b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district-court judgment 

or order, and their interests make joinder practicable, they may file a joint notice of 

appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals may 

be joined or consolidated by the court of appeals.

(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the caption 

or body of the notice, but an attorney representing more than one party may 

describe those parties with such terms as “all plaintiffs,” “the defendants,” “the 

plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment, order, or part thereof being appealed; and
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 12

(C) name the court to which the appeal is taken.

(2) A pro se notice of appeal is considered filed on behalf of the signer and the 

signer’s spouse and minor children (if they are parties), unless the notice clearly 

indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of appeal 

is sufficient if it names one person qualified to bring the appeal as representative of 

the class.

(4) An appeal must not be dismissed for informality of form or title of the notice of 

appeal, or for failure to name a party whose intent to appeal is otherwise clear from 

the notice.

(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a 

copy to each party’s counsel of record—excluding the appellant’s—or, if a party is 

proceeding pro se, to the party’s last known address. When a defendant in a 

criminal case appeals, the clerk must also serve a copy of the notice of appeal on the 

defendant, either by personal service or by mail addressed to the defendant. The 

clerk must promptly send a copy of the notice of appeal and of the docket entries—

and any later docket entries—to the clerk of the court of appeals named in the 

notice. The district clerk must note, on each copy, the date when the notice of appeal 

was filed.

(2) If an inmate confined in an institution files a notice of appeal in the manner 

provided by Rule 4(c), the district clerk must also note the date when the clerk 

docketed the notice.

(3) The district clerk’s failure to serve notice does not affect the validity of the 

appeal. The clerk must note on the docket the names of the parties to whom the 

clerk mails copies, with the date of mailing. Service is sufficient despite the death of 

a party or the party’s counsel.

(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the 

district clerk all required fees. The district clerk receives the appellate docket fee on 

behalf of the court of appeals.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 13

Federal Circuit Rule 3

Rule 3. Appeal as of Right - How Taken

(a) Opinion; Certified Copy of Docket Entries. When a notice of appeal is 

filed, the trial court clerk of court must promptly send to this court’s clerk of 

court a copy of the opinion, if any, that accompanied the judgment or order 

being appealed. The trial court clerk of court must certify the copy of the 

docket entries and send it with the notice of appeal.

(b) Petition for Certification of Judgment of the High Court of the Trust 

Territory of the Pacific Islands. A petition for certification of a judgment 

of the High Court of the Trust Territory of the Pacific Islands under the 

Compact of Free Association: Federated States of Micronesia, Republic of 

Marshall Islands, Title II, Title One, Article VII, § 174(c), and the Compact of 

Free Association: Palau, Title II, Title One, Article VII, § 174(c), in 48 U.S.C. 

§ 1901 note and § 1931 note, must be filed with this court’s clerk of court, but 

otherwise is deemed to be an appeal from the judgment of a district court for 

purposes of these rules.

Practice Notes

FAILURE TO FILE A NOTICE OF APPEAL. Only a party that has filed a notice 

of appeal may attack all or any part of the trial court judgment. Any other party in 

the trial court not filing a notice of appeal may participate in the appeal as an 

appellee but may not seek to overturn or modify the judgment.

FEES. The fee schedule is set forth in Federal Circuit Rule 52. See also 28 U.S.C. § 

1913, note 1 [Judicial Conference Schedule of Fees].

FILING AND DOCKETING AN APPEAL. An appeal is filed when the notice of 

appeal is received by the trial court. An appeal sent to this court by the trial court 

clerk of court is docketed when it is listed on the docket and assigned a docket 

number. 

FILING AND DOCKETING APPEALS UNDER 15 U.S.C. § 3416(c) AND

PETITIONS UNDER 42 U.S.C. § 300aa-12(f). Appeals under 15 U.S.C. § 3416(c)

from the district courts and petitions under 42 U.S.C. § 300aa-12(f) from the Court 

of Federal Claims are filed in this court, unlike other appeals from those courts in 

which the notice of appeal is filed with the Clerks of those courts. However, once 

these appeals or petitions are filed in this court, they are forwarded to the Clerks of 

those courts with instructions to comply with Federal Rule of Appellate Procedure 

3(d).
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 14

Federal Rule of Appellate Procedure 4

Rule 4. Appeal as of Right—When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice 

of appeal required by Rule 3 must be filed with the district clerk within 30 days 

after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the 

judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual 

capacity for an act or omission occurring in connection with duties performed on the 

United States’ behalf — including all instances in which the United States 

represents that person when the judgment or order is entered or files the appeal for 

that person.

(C) An appeal from an order granting or denying an application for a writ of error 

coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court 

announces a decision or order—but before the entry of the judgment or order—is 

treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party 

may file a notice of appeal within 14 days after the date when the first notice was 

filed, or within the time otherwise prescribed by this Rule 4(a), whichever period 

ends later.

(4) Effect of a Motion on a Notice of Appeal.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 15

(A) If a party timely files in the district court any of the following motions under the 

Federal Rules of Civil Procedure -- and does so within the time allowed by those 

rules -- the time to file an appeal runs for all parties from the entry of the order 

disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not 

granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal 

under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the 

judgment is entered.

(B)

(i) If a party files a notice of appeal after the court announces or enters a 

judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice 

becomes effective to appeal a judgment or order, in whole or in part, when the order 

disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 

4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a 

notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—

within the time prescribed by this Rule measured from the entry of the order 

disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) 

expires; and
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 16

(ii) regardless of whether its motion is filed before or during the 30 days after the 

time prescribed by this Rule 4(a) expires, that party shows excusable neglect or 

good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) 

may be ex parte unless the court requires otherwise. If the motion is filed after the 

expiration of the prescribed time, notice must be given to the other parties in 

accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed 

time or 14 days after the date when the order granting the motion is entered, 

whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to 

file an appeal for a period of 14 days after the date when its order to reopen is 

entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule 

of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed 

within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or 

within 14 days after the moving party receives notice under Federal Rule of Civil 

Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, 

when the judgment or order is entered in the civil docket under Federal Rule of 

Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the 

judgment or order is entered in the civil docket under Federal Rule of Civil 

Procedure 79(a) and when the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 17

• 150 days have run from entry of the judgment or order in the civil docket under 

Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when 

required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an 

appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(c) Appeal by an Inmate Confined in an Institution.

(1) If an institution has a system designed for legal mail, an inmate confined there 

must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a 

notice of appeal in either a civil or a criminal case, the notice is timely if it is 

deposited in the institution’s internal mail system on or before the last day for filing 

and: 

(A) it is accompanied by: 

(i) a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—

setting out the date of deposit and stating that first-class postage is being prepaid; 

or 

(ii) evidence (such as a postmark or date stamp) showing that the notice was so 

deposited and that postage was prepaid; or 

(B) the court of appeals exercises its discretion to permit the later filing of a 

declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 

14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal 

runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), 

the 30-day period for the government to file its notice of appeal runs from the entry 

of the judgment or order appealed from or from the district court’s docketing of the 

defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil 

or a criminal case is mistakenly filed in the court of appeals, the clerk of that court 

must note on the notice the date when it was received and send it to the district 

clerk. The notice is then considered filed in the district court on the date so noted.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 18

Federal Circuit Rule 4

Rule 4. Appeal as of Right - Untimely Notice

The United States Court of Appeals for the Federal Circuit cannot waive the 

untimely filing of a notice of appeal. The clerk may return a notice of appeal that is 

untimely on its face.

Practice Notes

TIME TO APPEAL. The table below is provided only as a convenience for counsel, 

who should refer to the statutes and case law before determining the period 

available for taking an appeal. Counsel 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.

COURT STATUTE TIME

District Courts 28 U.S.C. § 2107 30 days (60 days if U.S. is a 

party)

15 U.S.C. § 3416(c) 30 days

Court of International Trade 28 U.S.C. § 2645(c) 60 days

Court of Federal Claims

Appeals 28 U.S.C. § 2522 60 days

Petitions 42 U.S.C. §

300aa-12(f)

60 days

Court of Appeals for 38 U.S.C. § 7292 60 days

Veterans Claims

DUTY TO NOTIFY THE CLERK OF POSTJUDGMENT MOTIONS

PENDING IN THE TRIAL COURT. Even though the district court clerk must 

forward copies of later docket entries under Federal Rule of Appellate Procedure 

3(d), the appellant should promptly notify this court’s clerk if any party in the case 

files a motion listed in Federal Rule of Appellate Procedure 4(a)(4). Any other party 

may also notify the clerk in such a case. Upon receiving the appropriate docket 

entries from the district court, the clerk will deactivate the appeal. Deactivation of 

the appeal suspends all further action in the court of appeals. Upon reactivation of 

the appeal, the clerk will reschedule the next required filing and notify counsel.

EXPEDITED PROCEEDINGS. The overall time for an appeal can be accelerated 

by the expeditious filing of a notice of appeal shortly after entry of final judgment in 

the trial forum. When a party is considering seeking expedited proceedings on 

appeal, the party should consider filing its notice of appeal and initial brief well 

before the applicable deadlines. For further information on expedition procedures, 

see the Practice Note to Rule 27.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 19

Federal Rule of Appellate Procedure 5

Rule 5. Appeal by Permission

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of appeals’ 

discretion, a party must file a petition for permission to appeal. The petition must 

be filed with the circuit clerk with proof of service on all other parties to the districtcourt action.

(2) The petition must be filed within the time specified by the statute or rule 

authorizing the appeal or, if no such time is specified, within the time provided by 

Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an order 

granting permission to do so or stating that the necessary conditions are met, the 

district court may amend its order, either on its own or in response to a party’s 

motion, to include the required permission or statement. In that event, the time to 

petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(C) the relief sought;

(D) the reasons why the appeal should be allowed and is authorized by a statute or 

rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or 

memorandum, and

(ii) any order stating the district court’s permission to appeal or finding that the 

necessary conditions are met.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 20

(2) A party may file an answer in opposition or a cross-petition within 10 days after 

the petition is served.

(3) The petition and answer will be submitted without oral argument unless the 

court of appeals orders otherwise.

(c) Form of Papers; Number of Copies; Length Limits. All papers must 

conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court 

requires a different number by local rule or by order in a particular case. Except by 

the court’s permission, and excluding the accompanying documents required by 

Rule 5(b)(1)(E): 

(1) a paper produced using a computer must not exceed 5,200 words; and 

(2) a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 14 days after the entry of the order granting permission to appeal, the 

appellant must:

(A) pay the district clerk all required fees; and

(B) file a cost bond if required under Rule 7.

(2) A notice of appeal need not be filed. The date when the order granting 

permission to appeal is entered serves as the date of the notice of appeal for 

calculating time under these rules.

(3) The district clerk must notify the circuit clerk once the petitioner has paid the 

fees. Upon receiving this notice, the circuit clerk must enter the appeal on the 

docket. The record must be forwarded and filed in accordance with Rules 11 and 

12(c).

Federal Circuit Rule 5

Rule 5. Appeal by Permission 

(a) Petition. A petition for permission to appeal must be accompanied by a copy 

of the docket entries in the trial court.

(b) Record; Certified Copy of Docket Entries. In an allowed appeal, the trial 

court must retain the record as provided in Federal Rule of Appellate 

Procedure 11(e) and in Federal Circuit Rule 11(a). The trial court clerk of 

court must send a certified copy of the docket entries instead of the record.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 21

(c) Filing. For information concerning how to file a petition for permission to

appeal, which is a case-initiating document, see Federal Circuit Rule 25.

Practice Notes

CASE INITIATION. The court’s case management/electronic case filing system 

(CM/ECF) provides for submission of case opening materials in cases in which 

parties are represented by counsel and requires payment of fees using pay.gov. 

Requirements are included in the court’s electronic case filing User Guide 

(www.cafc.uscourts.gov).

Federal Rule of Appellate Procedure 6
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 22

Federal Rule of Appellate Procedure 7

Rule 7. Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide 

other security in any form and amount necessary to ensure payment of costs on 

appeal. Rule 8(b) applies to a surety on a bond given under this rule.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 23

Federal Rule of Appellate Procedure 8

Rule 8. Stay or Injunction Pending Appeal

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in the 

district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a supersedeas bond; or

(C) an order suspending, modifying, restoring, or granting an injunction while an 

appeal is pending.

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief 

mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its 

judges.

(A) The motion must:

(i) show that moving first in the district court would be impracticable; or

(ii) state that, a motion having been made, the district court denied the motion or 

failed to afford the relief requested and state any reasons given by the district court 

for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts 

subject to dispute; and

(iii) relevant parts of the record.

(C) The moving party must give reasonable notice of the motion to all parties.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and 

normally will be considered by a panel of the court. But in an exceptional case in 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 24

which time requirements make that procedure impracticable, the motion may be 

made to and considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other appropriate 

security in the district court.

(b) Proceeding Against a Surety. If a party gives security in the form of a bond or 

stipulation or other undertaking with one or more sureties, each surety submits to 

the jurisdiction of the district court and irrevocably appoints the district clerk as the 

surety’s agent on whom any papers affecting the surety’s liability on the bond or 

undertaking may be served. On motion, a surety’s liability may be enforced in the 

district court without the necessity of an independent action. The motion and any 

notice that the district court prescribes may be served on the district clerk, who 

must promptly mail a copy to each surety whose address is known.

(c) Stay in a Criminal Case. Rule 38 of the Federal Rules of Criminal Procedure 

governs a stay in a criminal case.

Federal Circuit Rule 8

Rule 8. Stay or Injunction Pending Appeal

(a) Notice of Appeal; Trial Court’s Judgment or Order. A motion for a stay 

or injunction pending appeal must be accompanied by:

(1) a copy of the notice of appeal that has been filed with the trial court 

clerk of court;

(2) a copy of the trial court’s judgment or order on the merits; 

(3) a copy of any order on the motion for a stay or injunction pending 

appeal; and

(4) a certificate of interest.

(b) Length of Motion, Response, and Reply; Copies; Brief; Filing.

(1) A motion or a response to a motion for a stay or injunction pending 

appeal may not exceed 5,200 words if produced using a computer or 20 

pages if handwritten or typewritten. A reply may not exceed 2,600 

words if produced using a computer or 10 pages if handwritten or 

typewritten.

(2) No paper copies are required if the motion is filed by counsel through 

Electronic Case Filing (ECF). If the motion is filed by a pro se party, 

then one paper copy must be filed. 

(3) A separate brief supporting a motion, response, or reply is not 

permitted.

(4) For information on filing a motion under this rule, when an appeal has 

been filed by the trial court but not yet docketed in this court, see the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 25

information in Federal Circuit Rule 25 and instructions on the court’s 

website for how to file a case-initiating document.

(c) Notice and Service When Requesting Immediate Action; Facsimile or 

Email.

(1) A party moving for a stay or injunction pending appeal who requests 

immediate action by the court must—before filing—notify all parties 

that a motion will be filed and must utilize an expedited method of 

service.

(2) If a motion for a stay or injunction pending appeal is sent to the court 

by facsimile or email transmission, which is only permitted under 

Federal Circuit Rule 25 for pro se parties who cannot file electronically 

through CM/ECF, opposing counsel must be served in the same 

manner. The filing must state the name, address, and, if applicable, 

the facsimile numbers or email addresses of the persons served

(d) Statement. If an initial motion for a stay or injunction pending appeal was 

not made in the district court under Federal Rule of Appellate Procedure 

8(a)(1), movant must include in its motion in this court a statement 

explaining why it was not practicable to do so. If an initial motion for a stay 

or injunction pending appeal was made in the district court under Federal 

Rule of Appellate Procedure 8(a)(1) and remains pending, the movant must 

include in its motion in this court a statement specifically identifying when it 

filed the motion in the district court and why it is not practicable to await a 

ruling by the district court on that motion.

Practice Notes

FORM REQUIREMENTS. See Federal Rule of Appellate Procedure 27(d) for form 

requirements concerning motions.

CERTIFICATE OF INTEREST. The format is found in Form 9.

CLERK’S OFFICE EMAIL. Email address (prose@cafc.uscourts.gov) may only be 

used by pro se filers and only for submission under this Rule or Federal Rule of 

Appellate Procedure 8.

Federal Rule of Appellate Procedure 9
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 26

Federal Rule of Appellate Procedure 10

Rule 10. The Record on Appeal

(a) Composition of the Record on Appeal. The following items constitute the 

record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or 

entry of an order disposing of the last timely remaining motion of a type specified in 

Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already 

on file as the appellant considers necessary, subject to a local rule of the court of 

appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal 

Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the 

district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal 

that a finding or conclusion is unsupported by the evidence or is contrary to the 

evidence, the appellant must include in the record a transcript of all evidence 

relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 27

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a 

statement of the issues that the appellant intends to present on the appeal and 

must serve on the appellee a copy of both the order or certificate and the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of the 

proceedings, the appellee must, within 14 days after the service of the order or 

certificate and the statement of the issues, file and serve on the appellant a 

designation of additional parts to be ordered; and

(C) unless within 14 days after service of that designation the appellant has ordered 

all such parts, and has so notified the appellee, the appellee may within the 

following 14 days either order the parts or move in the district court for an order 

requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements 

with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or 

When a Transcript Is Unavailable. If the transcript of a hearing or trial is 

unavailable, the appellant may prepare a statement of the evidence or proceedings 

from the best available means, including the appellant’s recollection. The statement 

must be served on the appellee, who may serve objections or proposed amendments 

within 14 days after being served. The statement and any objections or proposed 

amendments must then be submitted to the district court for settlement and 

approval. As settled and approved, the statement must be included by the district 

clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal 

as defined in Rule 10(a), the parties may prepare, sign, and submit to the district 

court a statement of the case showing how the issues presented by the appeal arose 

and were decided in the district court. The statement must set forth only those facts 

averred and proved or sought to be proved that are essential to the courts resolution 

of the issues. If the statement is truthful, it—together with any additions that the 

district court may consider necessary to a full presentation of the issues on appeal—

must be approved by the district court and must then be certified to the court of 

appeals as the record on appeal. The district clerk must then send it to the circuit 

clerk within the time provided by Rule 11. A copy of the agreed statement may be 

filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 28

(1) If any difference arises about whether the record truly discloses what occurred in 

the district court, the difference must be submitted to and settled by that court and 

the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by 

error or accident, the omission or misstatement may be corrected and a 

supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(C) by the court of appeals.

(3) All other questions as to the form and content of the record must be presented to 

the court of appeals.

Federal Circuit Rule 10

Rule 10. The Record on Appeal

Delay in preparing the transcript. When a trial transcript is not filed in the 

trial court within 60 days after it was ordered, the clerk of court may direct the 

parties to proceed under Rule 10(c) or (d) of the Federal Rules of Appellate 

Procedure.

Practice Notes

DAILY COPY. Using daily transcript copy in lengthy trial proceedings can reduce 

or eliminate appellate delay in awaiting transcription after trial.

PROCEDURES TO EXPEDITE DELIVERY OF TRANSCRIPTS. District 

courts and regional circuit councils have procedures to expedite transcripts that 

may be available to counsel experiencing difficulty with late delivery of transcripts 

by court reporters.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 29

Federal Rule of Appellate Procedure 11

Rule 11. Forwarding the Record

(a) Appellant’s Duty. An appellant filing a notice of appeal must comply with Rule 

10(b) and must do whatever else is necessary to enable the clerk to assemble and 

forward the record. If there are multiple appeals from a judgment or order, the clerk 

must forward a single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and 

file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter must enter at the foot of 

the order the date of its receipt and the expected completion date and send a copy, 

so endorsed, to the circuit clerk.

(B) If the transcript cannot be completed within 30 days of the reporters receipt of 

the order, the reporter may request the circuit clerk to grant additional time to 

complete it. The clerk must note on the docket the action taken and notify the 

parties.

(C) When a transcript is complete, the reporter must file it with the district clerk 

and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must notify 

the district judge and do whatever else the court of appeals directs.

(2) District Clerk’s Duty to Forward. When the record is complete, the district clerk 

must number the documents constituting the record and send them promptly to the 

circuit clerk together with a list of the documents correspondingly numbered and 

reasonably identified. Unless directed to do so by a party or the circuit clerk, the 

district clerk will not send to the court of appeals documents of unusual bulk or 

weight, physical exhibits other than documents, or other parts of the record 

designated for omission by local rule of the court of appeals. If the exhibits are 

unusually bulky or heavy, a party must arrange with the clerks in advance for their 

transportation and receipt.

(c) Retaining the Record Temporarily in the District Court for Use in 

Preparing the Appeal. The parties may stipulate, or the district court on motion 

may order, that the district clerk retain the record temporarily for the parties to use 

in preparing the papers on appeal. In that event the district clerk must certify to 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 30

the circuit clerk that the record on appeal is complete. Upon receipt of the appellee’s 

brief, or earlier if the court orders or the parties agree, the appellant must request 

the district clerk to forward the record.

(d) [Abrogated. ]

(e) Retaining the Record by Court Order.

(1) The court of appeals may, by order or local rule, provide that a certified copy of 

the docket entries be forwarded instead of the entire record. But a party may at any 

time during the appeal request that designated parts of the record be forwarded.

(2) The district court may order the record or some part of it retained if the court 

needs it while the appeal is pending, subject, however, to call by the court of 

appeals.

(3) If part or all of the record is ordered retained, the district clerk must send to the 

court of appeals a copy of the order and the docket entries together with the parts of 

the original record allowed by the district court and copies of any parts of the record 

designated by the parties.

(f) Retaining Parts of the Record in the District Court by Stipulation of the 

Parties. The parties may agree by written stipulation filed in the district court that 

designated parts of the record be retained in the district court subject to call by the 

court of appeals or request by a party. The parts of the record so designated remain 

a part of the record on appeal.

(g) Record for a Preliminary Motion in the Court of Appeals. If, before the 

record is forwarded, a party makes any of the following motions in the court of 

appeals:

• for dismissal;

• for release;

• for a stay pending appeal;

• for additional security on the bond on appeal or on a supersedeas bond; or

• for any other intermediate order—
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 31

the district clerk must send the court of appeals any parts of the record designated 

by any party.

Federal Circuit Rule 11

Rule 11. Forwarding the Record

(a) Retaining the Record; Certified Copy of the Docket Entries; Physical 

Exhibits; Archival Storage.

(1) The district court clerk must:

(A) retain the assembled record unless this court, on motion or sua 

sponte, orders otherwise; and

(B) send to this court a certified copy of the docket entries instead of 

the record.

(2) Archival Storage. The district court clerk of court must not send the 

record to archival storage until this court issues its mandate.

(b) Access of Parties and Counsel to the Original Record.

(1) Material Not Subject to a Protective Order; Inspection and 

Copying. When a notice of appeal is filed, the trial court clerk of court 

must permit a party or counsel for a party to inspect and copy the 

nonconfidential original papers, transcripts, and exhibits to prepare 

the appendix. This inspection and copying is subject to reasonable 

regulation by the trial court.

(2) Material Subject to a Protective Order; Inspection and 

Copying. A party or counsel for a party must be permitted to inspect 

and copy material in the record governed by a protective order of the 

trial court in accordance with that order. If this court modifies or 

annuls the protective order, the access of a party or counsel is governed 

by the order of this court

(c) Status of a Protective Order on Appeal. In general, any portion of the 

record that was subject to a protective order in the trial court shall remain

subject to that order on appeal. Material shall lose its status as subject to a 

protective order, however, if and when it has been removed from protected 

status under Federal Circuit Rule 30(h)(1)(B) or has appeared, without being 

marked confidential, in motion papers under Federal Circuit Rule 27 or a 

brief under Federal Circuit Rule 28 in this court. Federal Circuit Rules 

27(m)(1) and 28(d)(1) tightly limit confidentiality markings in a motion, 

response, or reply and in a brief.

(d) Agreement by Parties to Modify a Protective Order; Certificate of 

Compliance. If any portion of the record in the trial court is subject to a 

protective order and a notice of appeal has been filed, each party must 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 32

promptly review the record to determine whether protected portions need to 

remain protected on appeal. If a party determines that some portions no 

longer need to be protected, that party must seek an agreement with the 

other party. Any agreement that is reached must be promptly presented to 

the trial court, which may issue an appropriate order. Whether or not an 

agreement is reached, each party must file a certificate of compliance no later 

than the time for filing the joint appendix stating it complied with this rule. 

This Federal Circuit Rule 11(d) does not apply in a case arising under 19 

U.S.C. § 1516a, or to third-party information marked as confidential.

(e) Motion to Modify the Protective Order. A party may move at any time in 

this court to modify a protective order to remove protection from some 

material or to include another person within its terms. This court may decide 

the motion or may remand the case to the trial court. This court, sua sponte, 

may direct the parties to show cause why a protective order should not be 

modified.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 33

Federal Rule of Appellate Procedure 12

Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing 

the Record

(a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the 

docket entries from the district clerk under Rule 3(d), the circuit clerk must docket 

the appeal under the title of the district-court action and must identify the 

appellant, adding the appellant’s name if necessary.

(b) Filing a Representation Statement. Unless the court of appeals designates 

another time, the attorney who filed the notice of appeal must, within 14 days after 

filing the notice, file a statement with the circuit clerk naming the parties that the 

attorney represents on appeal.

(c) Filing the Record, Partial Record, or Certificate. Upon receiving the 

record, partial record, or district clerk’s certificate as provided in Rule 11, the circuit 

clerk must file it and immediately notify all parties of the filing date.

Federal Circuit Rule 12

Notice of Docketing. The clerk of court must notify all parties of the date the 

appeal is docketed.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 34

Practice Notes

FILING AND DOCKETING AN APPEAL. An appeal is filed when the notice of 

appeal is received by the trial court. An appeal sent to this court by the trial court 

clerk of court is docketed when it is listed on the docket and assigned a docket 

number.

DATE OF DOCKETING. The date of docketing starts the time running for filing 

briefs. See Federal Circuit Rule 31(a).

REPRESENTATION STATEMENT. The requirements of Federal Rule of 

Appellate Procedure 12(b) are met by filing the entry of appearance and certificate 

of interest required under Federal Circuit Rules 47.3 and 47.4.

OFFICIAL CAPTION; PARTICIPATION IN THE APPEAL BY APPELLEES; 

CONSOLIDATION OF PREVIOUSLY CONSOLIDATED CASES AND 

CROSS-APPEALS. The clerk will provide the parties with the official caption in 

the case at the time of docketing. Any objection to the official caption should be 

made promptly. It is the court’s usual practice to include in the caption all parties 

that participated in the court below, even if they are no longer participating in the 

case on appeal. Parties included in the trial court title who have an adverse interest 

to the appellant but who are not cross-appealing will be deemed appellees. Parties 

permitted to intervene in the trial court as plaintiffs or defendants will be identified 

only as plaintiff or defendant to avoid confusion with any third party permitted to 

intervene in the appeal. An appellee desiring not to file a brief or join in another 

party’s brief must notify the clerk of court who will strike the party’s designation as 

an appellee from the official caption. An appeal in a case that was consolidated in 

the trial court will be docketed under the title used for the consolidated case. When 

more than one party appeals from the same trial court case, the appeals or crossappeals will be consolidated by the clerk of court. Other appeals may be 

consolidated on motion or by the court sua sponte.

TRANSFERRED APPEAL. An appeal transferred from another court will be 

given a new docket number and will be consolidated by the clerk of court with any 

previously docketed appeal from the same judgment or order.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 35

Federal Rule of Appellate Procedure 12.1

Rule 12.1 Remand After an Indicative Ruling by the District Court on a 

Motion for Relief That Is Barred by a Pending Appeal

(a) Notice to the Court of Appeals. If a timely motion is made in the district 

court for relief that it lacks authority to grant because of an appeal that has been 

docketed and is pending, the movant must promptly notify the circuit clerk if the

district court states either that it would grant the motion or that the motion raises a 

substantial issue.

(b) Remand After an Indicative Ruling. If the district court states that it would 

grant the motion or that the motion raises a substantial issue, the court of appeals 

may remand for further proceedings but retains jurisdiction unless it expressly 

dismisses the appeal. If the court of appeals remands but retains jurisdiction, the 

parties must promptly notify the circuit clerk when the district court has decided 

the motion on remand.

Title III – Appeals from the United States Tax Court

Rule 13. Review of a Decision of the Tax Court

Rule 14. Applicability of Other Rules to the Review of a Tax Court Decision
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 36

Title IV – Review or Enforcement of an Order of an Administrative Agency, 

Board, Commission, or Officer

Federal Rule of Appellate Procedure 15

Rule 15. Review or Enforcement of an Agency Order

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time prescribed by 

law, a petition for review with the clerk of a court of appeals authorized to review 

the agency order. If their interests make joinder practicable, two or more persons 

may join in a petition to the same court to review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the 

petition—using such terms as “et al.,” “petitioners,” or “respondents” does not 

effectively name the parties;

(B) name the agency as a respondent (even though not named in the petition, the 

United States is a respondent if required by statute); and

(C) specify the order or part thereof to be reviewed.

(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.

(4) In this rule “agency” includes an agency, board, commission, or officer; “petition 

for review” includes a petition to enjoin, suspend, modify, or otherwise review, or a 

notice of appeal, whichever form is indicated by the applicable statute.

(b) Application or Cross-Application to Enforce an Order; Answer; Default.

(1) An application to enforce an agency order must be filed with the clerk of a court 

of appeals authorized to enforce the order. If a petition is filed to review an agency 

order that the court may enforce, a party opposing the petition may file a crossapplication for enforcement.

(2) Within 21 days after the application for enforcement is filed, the respondent 

must serve on the applicant an answer to the application and file it with the clerk. 

If the respondent fails to answer in time, the court will enter judgment for the relief 

requested.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 37

(3) The application must contain a concise statement of the proceedings in which 

the order was entered, the facts upon which venue is based, and the relief 

requested.

(c) Service of the Petition or Application. The circuit clerk must serve a copy of 

the petition for review, or an application or cross-application to enforce an agency 

order, on each respondent as prescribed by Rule 3(d), unless a different manner of 

service is prescribed by statute. At the time of filing, the petitioner must:

(1) serve, or have served, a copy on each party admitted to participate in the agency 

proceedings, except for the respondents;

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or application to serve each 

respondent.

(d) Intervention. Unless a statute provides another method, a person who wants to 

intervene in a proceeding under this rule must file a motion for leave to intervene 

with the circuit clerk and serve a copy on all parties. The motion—or other notice of 

intervention authorized by statute—must be filed within 30 days after the petition 

for review is filed and must contain a concise statement of the interest of the 

moving party and the grounds for intervention.

(e) Payment of Fees. When filing any separate or joint petition for review in a 

court of appeals, the petitioner must pay the circuit clerk all required fees.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 38

Federal Circuit Rule 15

Rule 15. Review of an Agency Order - How Obtained

(a) Petition for Review or Notice of Appeal; Payment of Fees; Address 

and Telephone Number of Counsel or Pro Se Petitioner or Appellant; 

Number of Copies.

(1) From the Patent and Trademark Office. To appeal a decision of 

the Patent Trial and Appeal Board, the Trademark Trial and Appeal 

Board, or the Director under 15 U.S.C. § 1071(a), the appellant must 

file in the Patent and Trademark Office a notice of appeal within the 

time prescribed by law. Notwithstanding Rule 25(b)(1), the appellant 

must simultaneously send to the clerk of court one paper copy of the 

notice and pay the fee set forth in Federal Circuit Rule 52. The 

Director must promptly advise the clerk of court that the notice is or is 

not timely.

(2) From Another Agency.

(A) Except as provided in Federal Circuit Rule 15(a)(1), to petition 

or appeal from a decision or order of an agency, the petitioner 

must file a petition for review or notice of appeal with this 

court’s clerk of court within the time prescribed by law. Within 

14 days of filing, the petitioner must pay the clerk of court the 

fee set forth in Federal Circuit Rule 52.

(B) A petition filed by the Director of the Office of Personnel 

Management must be filed as prescribed in Federal Circuit Rule 

47.9.

(3) Address and Telephone Number of Counsel or Pro Se 

Petitioner or Appellant. Each petition for review or notice of appeal 

must contain the counsel’s — or the pro se petitioner’s or appellant’s —

name, current address, email address, and telephone number.

(4) Copies. No additional paper copies are required to be filed with the 

court.

(b) Docketing Petition or Appeal; Notice of Docketing.

(1) Docketing Upon Receipt. In a petition for review or appeal from an 

administrative agency, the clerk of court will docket a timely appeal or 

petition upon receipt. Parties represented by counsel must file the 

petition or appeal and pay any required fees through CM/ECF and 

pay.gov. Parties not represented by counsel must submit the petition 

or appeal in paper and pay the required fees by check within 14 days of 

docketing. Facsimile or email transmission is not permitted. 

Instructions for electronically filing case- initiating documents such as 

a petition or appeal are posted on the court’s website.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 39

(2) Untimeliness. The agency may advise the clerk of court concerning 

the untimeliness of an appeal and the clerk may order the appellant to 

show cause why the appeal should not be dismissed and refer the 

appellant’s response to the court.

(3) Notice of Docketing. The clerk must notify all parties through 

CM/ECF of the date the appeal or petition for review is docketed.

(c) Statement Concerning Discrimination.

(1) Petitioner’s Statement. Within 14 days after a petition for review of 

a decision of the Merit Systems Protection Board or a decision of an 

arbitrator under 5 U.S.C. § 7121 is docketed, the petitioner must serve 

on the respondent and file with the clerk of court a statement whether 

or not a claim of discrimination by reason of race, sex, age, national 

origin, or handicapped condition has been or will be made in the case. 

See Form 10.

(2) Response When a Claim of Discrimination is Raised in a 

Motion or Brief. If the petitioner in a case described in Federal 

Circuit Rule 15(c)(1) files a motion or brief involving a claim of 

discrimination as to the case before the court, the respondent must 

state, in a responsive motion or brief, whether the respondent concurs 

or disagrees with the petitioner’s statement concerning discrimination 

and indicate whether or not the respondent believes that the court has 

jurisdiction over the petition for review, with reasons provided as 

necessary.

(d) Untimely Petition for Review or Notice of Appeal. The clerk of court 

may return a petition for review or notice of appeal that is untimely on its 

face.

(e) Notice of Election Under 35 U.S.C. § 141 or 15 U.S.C. § 1071(a)(1). A 

party filing a notice of election under 35 U.S.C. § 141 or 15 U.S.C. § 

1071(a)(1) with the Director of Patents and Trademarks must file a copy of 

the notice with the clerk of court, and the clerk of court must dismiss the 

appeal

(f) Judicial Review of Department of Veterans Affairs Rules and 

Regulations. See Federal Circuit Rule 47.12.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 40

Practice Notes

TIME TO APPEAL OR PETITION. The table below is provided only as a 

convenience to counsel, who should refer to the statutes, rules, and case law before 

determining the period available for taking an appeal or filing a petition for review. 

Counsel should also note that the event that causes the period to run varies in each 

case.

AGENCY

Arbitrator

Merit Systems Protection Board

GovernmentAccountability

STATUTE

5 U.S.C. §§ 7121, 7703

5 U.S.C. § 7703

31 U.S.C. § 755

TIME

60 days

60 days

30 days

Office Personnel Appeals Board

Patent Trial and Appeal Board;

Trademark Trial and Appeal

Board; Director of Patents

and Trademarks

35 U.S.C. § 142,

15 U.S.C. § 1071,

37 C.F.R. §§ 1.304, 2.145

2 months or 63 days

International Trade Commission 19 U.S.C. § 1337 60 days

Board of Contract Appeals 41 U.S.C. § 7107 120 days

Secretary of Agriculture 7 U.S.C. § 2461 60 days

Secretary of Veterans Affairs 38 U.S.C. § 502 60 days

Fed. Cir. R. 47.12(a)

Secretary of Labor; Occupational 28 U.S.C. § 1296 30

days Safety and Health Review

Commission; Federal Labor

Relations Authority; certain

Merit Systems Protection Board

cases and Equal Employment

Opportunity Commission cases

Board of Directors, Office of 2 U.S.C. § 1407(c)(3) 90 

Compliance

Bureau of Justice Assistance 42 U.S.C. § 3796c-2 90 days

FILING IN THE PATENT AND TRADEMARK OFFICE. A notice of appeal 

mailed to the Patent and Trademark Office should be addressed:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 41

Office of the Solicitor

United States Patent and Trademark Office Mail Stop 8

Post Office Box 1450

Alexandria, Virginia 22313-1450

The general counsel requests that hand delivery, if any, be made between the hours 

of 8:30 a.m. and 5:00 p.m. to:

Office of the General Counsel

Patent and Trademark Office

Madison East

10B20 600 Dulany Street

Alexandria, Virginia 22314

COPY OF DECISION OR ORDER. A party filing a petition for review or notice of 

appeal is urged to attach a copy of the decision or order of the agency for which 

review is sought.

INTERVENTION. A party with the right to appeal or to petition for review may 

not, instead of exercising that right, intervene in another appeal or petition to seek 

relief in its own cause. Because the United States or an agency of the United States 

is often the only appellee or respondent in cases under this rule, any other party 

seeking to intervene on the side of the appellee or respondent must move for leave 

to intervene within 30 days of the date when the petition for review or notice of 

appeal is filed. A motion for leave to intervene out of time will be granted only in 

extraordinary circumstances.

DISCRIMINATION STATEMENT. A discrimination statement form will be 

included in the docketing package provided to any petitioner seeking review of a 

decision of the Merit Systems Protection Board or an arbitrator. Failure to complete 

the discrimination statement will result in dismissal of the petition for review. See 

Form 10.

TIMELINESS. Except in inter partes appeals from decisions of the Patent Trial 

and Appeal Board or the Trademark Trial and Appeal Board, parties in agency 

proceedings do not have the 14-day “cross-appeal” period that Federal Rule of 

Appellate Procedure 4(a)(3) grants to parties appealing from trial courts. The court 

cannot waive the statutory time requirements for filing a petition for review or 

notice of appeal.

CONSOLIDATION. When more than one party files a petition for review or notice 

of appeal from the same decision or order, the parties should inform the clerk of 

court and the petitions or appeals may be consolidated and an adjusted briefing 

schedule may be issued.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 42

ARBITRATION AWARDS IN THE UNITED STATES POSTAL SERVICE.

These arbitration awards may not be appealed to this court.

PROPER GOVERNMENTAL PARTY IN APPEALS FROM BOARDS OF

CONTRACT APPEALS. In appeals from the boards of contract appeals, the title 

of the head of the federal agency is listed in the caption along with the name of the 

agency he or she heads.

FILING AND DOCKETING A PETITION FOR REVIEW OR APPEAL. A 

petition for review or appeal is filed when the petition for review or notice of appeal 

is received by the court or, in the case of an appeal from the Patent and Trademark 

Office, when the notice of appeal is received by the Director of the United States 

Patent and Trademark Office. A petition for review or appeal is docketed when it is 

listed on the docket and assigned a docket number in CM/ECF.

JUDICIAL REVIEW OF DEPARTMENT OF VETERANS AFFAIRS RULES 

AND REGULATIONS. Federal Circuit Rule 47.12 governs actions for judicial 

review of Department of Veterans Affairs rules and regulations under 38 U.S.C. § 

502. The procedures to be followed in such actions are the same as provided in this 

rule, except as provided in Federal Circuit Rule 47.12.

CHANGE OF HEAD OF AGENCY. In appeals in which the proper governmental 

party is the head of the agency, counsel for the government should promptly notify 

the clerk of court of any change that would affect the accuracy of the caption.

AGENCY. The term agency in these rules includes a board, commission, bureau, or 

arbitrator.

EXPEDITED PROCEEDINGS. The overall time for a review of an agency 

decision can be accelerated by the expeditious filing of a notice of appeal or petition 

for review shortly after entry of the reviewable agency order. When the appellant or 

petitioner is considering seeking expedited proceedings on appeal, the party should 

consider filing its notice of appeal or petition for review and initial brief well before 

the deadline for such actions. For further information on expedition procedures, see 

the Practice Notes to Rule 27.

Federal Rules of Appellate Procedure 15.1

Rule 15.1 Briefs and Oral Argument in a National Labor Relations Board 

Proceeding
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 43

Federal Rule of Appellate Procedure 16

Rule 16. The Record on Review or Enforcement

(a) Composition of the Record. The record on review or enforcement of an agency 

order consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the agency.

(b) Omissions From or Misstatements in the Record. The parties may at any 

time, by stipulation, supply any omission from the record or correct a misstatement, 

or the court may so direct. If necessary, the court may direct that a supplemental 

record be prepared and filed.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 44

Federal Rule of Appellate Procedure 17

Rule 17. Filing the Record

(a) Agency to File; Time for Filing; Notice of Filing. The agency must file the 

record with the circuit clerk within 40 days after being served with a petition for 

review, unless the statute authorizing review provides otherwise, or within 40 days 

after it files an application for enforcement unless the respondent fails to answer or 

the court orders otherwise. The court may shorten or extend the time to file the 

record. The clerk must notify all parties of the date when the record is filed.

(b) Filing—What Constitutes.

(1) The agency must file:

(A) the original or a certified copy of the entire record or parts designated by the 

parties; or

(B) a certified list adequately describing all documents, transcripts of testimony, 

exhibits, and other material constituting the record, or describing those parts 

designated by the parties.

(2) The parties may stipulate in writing that no record or certified list be filed. The 

date when the stipulation is filed with the circuit clerk is treated as the date when 

the record is filed.

(3) The agency must retain any portion of the record not filed with the clerk. All 

parts of the record retained by the agency are a part of the record on review for all 

purposes and, if the court or a party so requests, must be sent to the court 

regardless of any prior stipulation.

Federal Circuit Rule 17

Rule 17. Filing the Record

(a) Retaining the Record; Sending the Certified List. The agency must 

retain the record and send to this court a certified list or index unless this 

court, on motion or sua sponte, orders otherwise.

(b) Certified List or Index.

(1) From the United States Patent and Trademark Office. No later 

than 40 days after receiving the notice of appeal, the Director must 

send to the clerk of court the certified list and a copy of the decision or 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 45

order appealed. This constitutes compliance with the requirement of 35

U.S.C. § 143 and 15 U.S.C. § 1071(a)(3) for sending a certified record to 

the court.

(2) From Another Agency. No later than 40 days after the court serves 

a petition for review or notice of appeal on an agency, the agency must 

send to the clerk of court the certified list or index and a copy of the 

decision or order being appealed.

(3) Index of VA Rulemaking Record. In petitions for review under 38 

U.S.C. § 502, if a petitioner has not adequately identified the 

rulemaking proceeding complained of, so that the Secretary of 

Veterans Affairs cannot send the certified list or index within the time 

provided in Federal Circuit Rule 17(b)(2), the Secretary must promptly 

move to waive or extend the time for filing the certified list or index.

(c) Service of Certified List or Index by Agency. When an agency sends a 

certified list or index to the clerk of court, it must simultaneously serve a 

copy on the parties and provide a certificate of service to the clerk of court. 

Service must be made on counsel for the appellant or petitioner who has 

served the agency with a copy of an entry of appearance in this court; 

otherwise, service must be made on counsel who appeared before the agency 

or, if none, on the party. This service constitutes notice to the parties of the 

date the record was filed.

(d) Access of Parties and Counsel to Original Record.

(1) Material Not Subject to a Protective Order; Inspection and 

Copying. When a petition for review or notice of appeal is filed, the 

agency must permit a party or counsel for a party to inspect and copy 

the nonconfidential original papers, transcripts, and exhibits to 

prepare the appendix. This inspection and copying is subject to 

reasonable regulation by the agency.

(2) Material Subject to a Protective Order; Inspection and 

Copying. A party or counsel for a party must be permitted to inspect 

and copy material contained in the record governed by a protective 

order of an agency in accordance with that order. If this court modifies 

or annuls the protective order, the access of a party or counsel is 

governed by the order of this court.

(e) Status of a Protective Order on Appeal. In general, any portion of the 

record that was subject to a protective order in an agency shall remain 

subject to that order on appeal. Material shall lose its status as subject to a 

protective order, however, if and when it has been removed from protected 

status under Federal Circuit Rule 30(h)(1)(B) or has appeared, without being 

marked confidential, in motion papers under Federal Circuit Rule 27 or a 

brief under Federal Circuit Rule 28 in this court. Federal Circuit Rules 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 46

27(m)(1) and 28(d)(1) tightly limit confidentiality markings in a motion, 

response, or reply and in a brief.

(f) Agreement by Parties to Modify Protective Order; Certificate of 

Compliance. If any portion of the record in an agency is subject to a 

protective order and a petition for review or notice of appeal has been filed, 

each party must promptly review the record to determine whether protected 

portions need to remain protected on appeal. If a party determines that some 

portions no longer need to be protected, that party must seek an agreement 

with the other party. Any agreement that is reached must be promptly 

presented to the agency, which may issue an appropriate order. Whether or 

not an agreement is reached, each party must file a certificate of compliance 

no later than the time for filing the joint appendix stating it complied with

this rule.

(g) Motion to Modify the Protective Order. A party may move at any time in 

this court to modify a protective order to remove protection from some 

material or to include another person within its terms. This court may decide 

the motion or may remand the case to the agency. This court, sua sponte, 

may direct the parties to show cause why a protective order should not be 

modified.

Practice Notes

TRANSCRIPT OF AGENCY PROCEEDING AT GOVERNMENT EXPENSE. 

These rules do not require an agency to provide a party with a written transcript at 

the agency’s expense. Any party seeking a written transcript of a hearing should 

direct the request to the agency, not the court.

AGENCY. The term agency in these rules includes a board, commission, bureau, or 

arbitrator.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 47

Federal Rule of Appellate Procedure 18

Rule 18. Stay Pending Review

(a) Motion for a Stay.

(1) Initial Motion Before the Agency. A petitioner must ordinarily move first before 

the agency for a stay pending review of its decision or order.

(2) Motion in the Court of Appeals. A motion for a stay may be made to the court of 

appeals or one of its judges.

(A) The motion must:

(i) show that moving first before the agency would be impracticable; or

(ii) state that, a motion having been made, the agency denied the motion or failed to 

afford the relief requested and state any reasons given by the agency for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts 

subject to dispute; and

(iii) relevant parts of the record.

(C) The moving party must give reasonable notice of the motion to all parties.

(D) The motion must be filed with the circuit clerk and normally will be considered 

by a panel of the court. But in an exceptional case in which time requirements make 

that procedure impracticable, the motion may be made to and considered by a single 

judge.

(b) Bond. The court may condition relief on the filing of a bond or other appropriate 

security.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 48

Federal Circuit Rule 18

Rule 18. Stay Pending Review

(a) Petition for Review or Notice of Appeal; Agency Order. A petition for 

review or notice of appeal must be filed with this court before it will entertain 

a motion for a stay pending review. A motion for stay pending review must be 

accompanied by a copy of the agency decision on the merits and a copy of any 

agency order on the motion for a stay pending review.

(b) Length of Motion, Response, and Reply; Copies; Brief.

(1) A motion or a response to a motion for a stay pending review may not 

exceed 5,200 words if produced using a computer or 20 pages if 

handwritten or typewritten. A reply may not exceed 2,600 words if 

produced using a computer or 10 pages if handwritten or typewritten. 

(2) No paper copies are required if the motion is filed by counsel through 

CM/ECF. If the motion is filed by a pro se party, then one paper copy 

must be filed.

(3) A separate brief supporting a motion, response, or reply is not 

permitted.

(4) For information on filing a motion along with a petition or appeal 

under this rule, see the information in Federal Circuit Rule 25 and 

instructions in the User’s Guide on the court’s website

(www.cafc.uscourts.gov) for how to file a case-initiating document 

through CM/ECF.

(c) Notice and Service When Requesting Immediate Action; Facsimile or 

Email.

(1) A party moving for a stay pending review who requests immediate 

action by the court must – before filing – notify all parties that a 

motion will be filed and must utilize an expedited method of service.

(2) If a motion for stay pending review is sent to the court by facsimile or 

email transmission, which is only permitted under Federal Circuit 

Rule 25 for pro se parties who cannot file electronically through 

CM/ECF, a certificate of interest must be included and opposing 

counsel must be served in the same manner. The filing must state the 

name, address, and, if applicable, the facsimile numbers of the persons 

served.

(d) Statement. If an initial motion for a stay pending review was not made in 

the agency under Federal Rule of Appellate Procedure 18(a), movant must 

include in its motion in this court a statement explaining why it was not 

practicable to do so. If an initial motion for a stay pending review was made 

in the agency under Federal Rule of Appellate Procedure 18(a) and remains 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 49

pending, the movant must include in its motion in this court a statement 

specifically identifying when it filed the motion in the agency and why it is 

not practicable to await a ruling by the agency.

Practice Notes

FORM REQUIREMENTS. See Federal Rule of Appellate Procedure 27(d) for form 

requirements concerning motions.

CERTIFICATE OF INTEREST. The form for the certificate of interest is found in 

Form 9.

AGENCY. The term agency in these rules includes a board, commission, bureau, or 

arbitrator.

CLERK’S OFFICE EMAIL. Email address (prose@cafc.uscourts.gov) may only be 

used by pro se filers.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 50

Federal Rule of Appellate Procedure 19

Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part

When the court files an opinion directing entry of judgment enforcing the agency’s 

order in part, the agency must within 14 days file with the clerk and serve on each 

other party a proposed judgment conforming to the opinion. A party who disagrees 

with the agency’s proposed judgment must within 10 days file with the clerk and 

serve the agency with a proposed judgment that the party believes conforms to the 

opinion. The court will settle the judgment and direct entry without further hearing 

or argument.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 51

Federal Rule of Appellate Procedure 20

Rule 20. Applicability of Rules to the Review or Enforcement of an Agency 

Order

All provisions of these rules, except Rules 3–14 and 22–23, apply to the review or 

enforcement of an agency order. In these rules, “appellant” includes a petitioner or 

applicant, and “appellee” includes a respondent.

Federal Circuit Rule 20

Rule 20. Applicability of Rules to the Review of an Agency Order

All provisions of these Federal Circuit Rules, except Federal Circuit Rules 3-12, 

apply to the review of an agency order. In these Federal Circuit Rules, “appellant” 

includes a petitioner or applicant, and “appellee” includes a respondent.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 52

Title V – Extraordinary Writs

Federal Rule of Appellate Procedure 21

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary 

Writs

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and 

Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court 

must file a petition with the circuit clerk with proof of service on all parties to the 

proceeding in the trial court. The party must also provide a copy to the trial-court 

judge. All parties to the proceeding in the trial court other than the petitioner are 

respondents for all purposes.

(2)

(A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record 

that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and 

submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order 

the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 53

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the 

petition or may invite an amicus curiae to do so. The trial-court judge may request 

permission to address the petition but may not do so unless invited or ordered to do 

so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties, and 

when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge.

(c) Other Extraordinary Writs. An application for an extraordinary writ other 

than one provided for in Rule 21(a) must be made by filing a petition with the 

circuit clerk with proof of service on the respondents. Proceedings on the application 

must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) 

and (b).

(d) Form of Papers; Number of Copies; Length Limits. All papers must 

conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court 

requires the filing of a different number by local rule or by order in a particular 

case. Except by the court’s permission, and excluding the accompanying documents 

required by Rule 21(a)(2)(C): 

(1) a paper produced using a computer must not exceed 7,800 words; and 

(2) a handwritten or typewritten paper must not exceed 30 pages. 

Federal Circuit Rule 21

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary 

Writs

(a) Title; Fee; Answer.

(1) A petition for writ of mandamus or prohibition directed to a court or an 

agency must be entitled: “In Re [name of petitioner], Petitioner.”

(2) The petition must include a certificate of interest. An entry of 

appearance must accompany the petition, unless the petitioner is pro 

se.

(3) The petition must state the name, address, telephone number and, if 

applicable, facsimile number of each person served.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 54

(4) The fee set forth in Federal Circuit Rule 52 must accompany the 

petition. For counsel who must file the petition through CM/ECF, see 

the information in Federal Circuit Rule 25 and instructions in the 

User’s Guide on the court’s website (www.cafc.uscourts.gov) for how to 

file a case-initiating document through CM/ECF and pay the fees 

through pay.gov.

(5) No answer may be filed by any respondent unless ordered by the court.

(b) Copies; Brief.

(1) If the petition is filed by a pro se party, then one paper copy is 

required. No paper copies are required if counsel files the petition 

through CM/ECF as a case-initiating document. 

(2) A separate brief supporting or answering a petition is not permitted.

(3) No paper copies of a response or reply are required, if the response or 

reply is submitted through CM/ECF. If the respondent is pro se, then 

one paper copy of the response is required. If the petitioner is pro se, 

then one copy of the reply is required.

(c) Reply. If the court directs the filing of a response to a petition, then the 

petitioner may file a reply. Unless otherwise ordered, the petitioner may file 

a reply within 7 days of the date of the filing of the response. The court may 

act on the petition before receipt of any reply, and thus the filing of a reply 

should be expedited if appropriate. The reply may not exceed 3,900 words if 

produced using a computer or 15 pages if handwritten or typewritten.

(d) Service of Order Denying Petition. If the petition is denied, the petitioner 

must serve a copy of the order denying the petition on all persons served with 

the petition unless such a person has entered an appearance in the 

proceeding or has been sent a copy of the order by the clerk of court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 55

Title VI – Habeas Corpus; Proceedings In Forma Pauperis

Federal Rule of Appellate Procedure 22

Rule 22. Habeas Corpus and Section 2255 Proceedings

Federal Rule of Appellate Procedure 23

Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding

Federal Rule of Appellate Procedure 24

Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a 

district-court action who desires to appeal in forma pauperis must file a motion in 

the district court. The party must attach an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s 

inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on appeal.

(2) Action on the Motion. If the district court grants the motion, the party may 

proceed on appeal without prepaying or giving security for fees and costs, unless a 

statute provides otherwise. If the district court denies the motion, it must state its 

reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the 

district-court action, or who was determined to be financially unable to obtain an 

adequate defense in a criminal case, may proceed on appeal in forma pauperis 

without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies that the 

appeal is not taken in good faith or finds that the party is not otherwise entitled to 

proceed in forma pauperis and states in writing its reasons for the certification or 

finding; or

(B) a statute provides otherwise.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 56

(4) Notice of District Court’s Denial. The district clerk must immediately notify the 

parties and the court of appeals when the district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(C) finds that the party is not otherwise entitled to proceed in forma pauperis.

(5) Motion in the Court of Appeals. A party may file a motion to proceed on appeal in 

forma pauperis in the court of appeals within 30 days after service of the notice 

prescribed in Rule 24(a)(4). The motion must include a copy of the affidavit filed in 

the district court and the district court’s statement of reasons for its action. If no 

affidavit was filed in the district court, the party must include the affidavit 

prescribed by Rule 24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal from the United States 

Tax Court or on Appeal or Review of an Administrative-Agency 

Proceeding. A party may file in the court of appeals a motion for leave to proceed 

on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1):

(1) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency, 

board, commission, or officer proceeds directly in the court of appeals.

(c) Leave to Use Original Record. A party allowed to proceed on appeal in forma 

pauperis may request that the appeal be heard on the original record without 

reproducing any part.

Federal Circuit Rule 24

Rule 24. Proceeding in Forma Pauperis

(a) Form. If an appeal or petition for review is docketed without payment of the 

docketing fee, the clerk of court in providing notice of docketing will forward 

to the appellant or petitioner the form prescribed by this court for the motion 

to proceed on appeal in forma pauperis. (See Form 6.) Except as provided in 

Federal Rule of Appellate Procedure 24(a), if the clerk of court does not 

receive a completed motion, the docketing fee, or a completed Form 6B within 

14 days of the date of docketing of the appeal or petition, the clerk of court is 

authorized to dismiss the appeal or petition. See also Federal Circuit Rule 

52(d). The motion and affidavit may be made on the form provided in the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 57

Federal Rules of Appellate Procedure, but the court may request additional 

information from the movant.

(b) Supplemental Form. If movant is incarcerated, in addition to Form 6

movant must file a supplemental form for prisoners, Form 6A.

Practice Notes

DOCKETING FEE; TRANSCRIPT REQUEST. A party permitted to proceed in 

forma pauperis on appeal is not required to pay the docketing fee. Any request for a 

transcript of an agency proceeding at government expense is governed by agency 

regulations and must be directed to the agency.

PROCEEDING ON ORIGINAL RECORD. A request under Federal Rule of 

Appellate Procedure 24(c) that an appeal be heard on the original record is rarely 

granted because the available informal brief procedure permits an appendix 

consisting only of a copy of the decision or order sought to be reviewed. See Federal 

Circuit Rules 28(g); 30(i); 31(e); and 32(c). See Forms 11-16.

EFFECT OF PRISON LITIGATION REFORM ACT. Under the Prison 

Litigation Reform Act of 1995, a prisoner granted pauper status before the district 

court is not automatically entitled to pauper status on appeal. See 28 U.S.C. § 1915. 

A prisoner seeking to proceed in forma pauperis is directed to the Guide for Pro Se 

Petitioners and Appellants for further information.

USERRA CASES. In a petition for review of a Merit Systems Protection Board 

decision, a petitioner is not required to pay the docketing fee or costs if the case 

involved a claim under the Uniformed Services Employment and Reemployment 

Rights Act of 1994 (USERRA). 38 U.S.C. § 4323, 4324. A petitioner claiming 

exemption from the fee pursuant to USERRA should submit Form 6B within 14 

days of the date of docketing of the petition and may be required to submit 

documentation that his or her case before the Board involved a USERRA claim.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 58

Title VII – General Provisions

Federal Rule of Appellate Procedure 25

Rule 25. Filing and Service

(a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court of 

appeals must be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) In General. Filing may be accomplished by mail addressed to the clerk, but 

filing is not timely unless the clerk receives the papers within the time fixed for 

filing.

(B) A brief or appendix. A brief or appendix is timely filed, however, if on or before 

the last day for filing, it is:

(i) mailed to the clerk by First-Class Mail, or other class of mail that is at least as 

expeditious, postage prepaid; or

(ii) dispatched to a third-party commercial carrier for delivery to the clerk within 3 

days.

(C) Inmate Filing. If an institution has a system designed for legal mail, an inmate 

confined there must use that system to receive the benefit of this Rule 25(a)(2)(C). A 

paper filed by an inmate is timely if it is deposited in the institution’s internal mail 

system on or before the last day for filing and: 

(i) it is accompanied by: 

• a declaration in compliance with 28 U.S.C. § 1746—or a notarized 

statement—setting out the date of 

• deposit and stating that first-class postage is being prepaid; or 

• evidence (such as a postmark or date stamp) showing that the paper was so 

deposited and that postage was prepaid; or 

(ii) the court of appeals exercises its discretion to permit the later filing of a 

declaration or notarized statement that satisfies Rule 25(a)(2)(C)(i). deposited in the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 59

institution’s internal mailing system on or before the last day for filing. If an 

institution has a system designed for legal mail, the inmate must use that system to 

receive the benefit of this rule. Timely filing may be shown by a declaration in 

compliance with 28 U.S.C. §1746 or by a notarized statement, either of which must 

set forth the date of deposit and state that first-class postage has been prepaid.

(D) Electronic Filing. A court of appeals may by local rule permit or require papers 

to be filed, signed, or verified by electronic means that are consistent with technical 

standards, if any, that the Judicial Conference of the United States establishes. A 

local rule may require filing by electronic means only if reasonable exceptions are 

allowed. A paper filed by electronic means in compliance with a local rule 

constitutes a written paper for the purpose of applying these rules.

(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by 

a single judge, the judge may permit the motion to be filed with the judge; the judge 

must note the filing date on the motion and give it to the clerk.

(4) Clerk’s Refusal of Documents. The clerk must not refuse to accept for filing any 

paper presented for that purpose solely because it is not presented in proper form as 

required by these rules or by any local rule or practice.

(5) Privacy Protection. An appeal in a case whose privacy protection was governed 

by Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, 

or Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. 

In all other proceedings, privacy protection is governed by Federal Rule of Civil 

Procedure 5.2, except that Federal Rule of Criminal Procedure 49.1 governs when 

an extraordinary writ is sought in a criminal case.

(b) Service of All Papers Required. Unless a rule requires service by the clerk, a 

party must, at or before the time of filing a paper, serve a copy on the other parties 

to the appeal or review. Service on a party represented by counsel must be made on 

the party’s counsel.

(c) Manner of Service.

(1) Service may be any of the following:

(A) personal, including delivery to a responsible person at the office of counsel;

(B) by mail;

(C) by third-party commercial carrier for delivery within 3 days; or
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 60

(D) by electronic means, if the party being served consents in writing.

(2) If authorized by local rule, a party may use the court’s transmission equipment 

to make electronic service under Rule 25(c)(1)(D).

(3) When reasonable considering such factors as the immediacy of the relief sought, 

distance, and cost, service on a party must be by a manner at least as expeditious as 

the manner used to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery to 

the carrier. Service by electronic means is complete on transmission, unless the 

party making service is notified that the paper was not received by the party 

served.

(d) Proof of Service.

(1) A paper presented for filing must contain either of the following:

(A) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made service 

certifying:

(i) the date and manner of service;

(ii) the names of the persons served; and

(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the 

places of delivery, as appropriate for the manner of service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 

25(a)(2)(B), the proof of service must also state the date and manner by which the 

document was mailed or dispatched to the clerk.

(3) Proof of service may appear on or be affixed to the papers filed.

(e) Number of Copies. When these rules require the filing or furnishing of a 

number of copies, a court may require a different number by local rule or by order in 

a particular case.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 61

Federal Circuit Rule 25

Rule 25. Filing and Service

(a) Filing in General; Payment of Fees; Registration; Admission to Bar.

(1) Filing in General; Payment of Fees. Except as noted below, parties 

represented by counsel must submit all documents, including appeals 

and petitions when applicable, through Case Management/Electronic 

Case Filing (CM/ECF). Pro se parties must submit any documents in 

paper form, providing one copy to the court. Payment of any required 

fees must be made by counsel through pay.gov. Instructions are 

available on the court’s website concerning use of pay.gov. Payment of 

any required fees must be made by pro se parties through check or 

money order. See also Federal Circuit Rule 52. A User’s Guide for 

CM/ECF and instructions for the use of pay.gov are posted on the 

court’s website.

(2) Registration; Admission to Bar. Attorneys who appear before this 

court must register for the court’s CM/ECF system. Registration 

requirements are posted on the court’s website. Registration for 

CM/ECF is not a substitute for counsel’s application for admission to 

the bar or entry of appearance in a case. Applications for admission to 

the bar must be filed using the CM/ECF system by following the 

instructions posted on the court’s website.

(b) Case-initiating Documents. Documents such as appeals filed directly with 

this court, petitions for review, petitions for writs of mandamus, and motions 

for stays or injunctions under Fed. R. App. P. 8 or 18, are considered caseinitiating documents if the appeal or petition has not otherwise been opened.

(1) Submissions by Counsel. Case-initiating documents must be filed in 

Portable Document Format (PDF) by parties represented by counsel 

through CM/ECF and pay.gov. See the instructions on the court’s 

website for how to file a case-initiating document through CM/ECF 

and pay the fees through pay.gov. A case-initiating document is 

considered filed at the time and date registered by CM/ECF. No paper 

copy is required.

(2) Submissions by Pro Se Parties. Case-initiating documents 

submitted by pro se parties must be provided to the court in paper. 

Only one copy is required. The paper document must be served on 

opposing counsel at the same time it is mailed or delivered to the court.

(c) All Other Documents.

(1) Submissions by Counsel. All other documents must be submitted in 

PDF through CM/ECF, and except as otherwise provided herein or as 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 62

ordered by the court, and paper copies are not required to be provided.

Paper copies of briefs, appendices, petitions for rehearing, and

petitions for hearing en banc must be provided to the court after the 

filing of the electronic version of the briefs, appendices, or petitions 

first submitted through CM/ECF. A document filed electronically is 

deemed filed on the date and time stated on the Notice of Docket 

Activity from the court. Unless a time for filing is specified by the 

court, filing must be completed before midnight Eastern Time to be 

considered timely filed on that day.

(A) Briefs. In cases to be heard by a three-judge panel, six paper 

copies are required to be provided to the court within five 

business days of the court’s acceptance of the electronic brief.

(B) Appendices. In cases to be heard by a three-judge panel, six 

paper copies are required to be provided to the court within five 

business days of the court’s acceptance of the appendices.

(C) Petitions for Panel Rehearing. Three paper copies are 

required to be provided to the court within two business days of 

filing the petition through CM/ECF, unless otherwise ordered.

(D) Petitions for En Banc Hearing or Rehearing. Eighteen

paper copies are required to be provided to the court within two 

business days of the filing of the petition through CM/ECF, 

unless otherwise ordered.

(E) Combined Petition for Panel Rehearing and Rehearing 

En Banc. Unless otherwise ordered, 18 paper copies are 

required to be provided to the court within two business days of 

the filing of the petition through CM/ECF.

(F) Briefs in En Banc Cases. If the court grants a petition for 

hearing en banc, unless otherwise ordered, 28 copies of all briefs 

and appendices shall be filed within five business days of the 

court’s acceptance of the electronic brief. If the court grants a 

petition for rehearing en banc, unless otherwise ordered, 28 

copies of the original briefs and appendices (in cases where 

briefs were filed in CM/ECF prior to the court’s order granting 

an en banc rehearing) shall be filed within seven business days 

of the court’s order granting en banc rehearing. Additionally, if 

the court grants a petition for rehearing en banc, 28 copies of 

any ordered supplemental briefs, appendices, and amicus briefs 

must be filed within five business days of the court’s acceptance 

of the electronic brief or appendices. If a brief is accompanied by 

a motion for leave, paper copies of the motion shall also be 

submitted in the quantity required of the brief by this 

subsection.

(G) Confidential versions. If confidential and nonconfidential 

versions of the briefs, appendices, or petitions were filed through 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 63

CM/ECF, paper copies of only the confidential version(s) are 

required to be submitted to the court. One paper copy of the

confidential version of any document submitted to the court 

through CM/ECF must be served on any party, whether that 

party is or is not represented by counsel, except if that party or 

its counsel has not been authorized access to the confidential 

information under a governing protective order. Electronic 

access to confidential versions of documents is restricted to the 

court only.

(H) Other documents. Exhibits, attachments, or appendices that 

are not in a format that readily permits electronic filing such as 

those which are illegible when scanned or which, because of 

their odd shape, are unable to be scanned, may be filed in paper 

form without leave of court. Counsel must then file electronically 

a Notice of Paper Filing. Documents filed pursuant to this 

subsection must be served by an alternate method of service by 

providing two paper copies to all other parties. If such 

documents are submitted with a brief or appendix, then an 

original and six copies must be filed. For all other filings of 

documents that may not be scanned, an original and three 

copies must be filed.

(I) Motion for exemption. A motion for exemption from the 

court’s CM/ECF requirements may be submitted in paper form. 

Only one paper copy is required. Upon a showing of good cause, 

the court may exempt a party from CM/ECF requirements and 

authorize filing by means other than use of CM/ECF.

(J) Technical or System Failures. A CM/ECF filer whose filing is 

made untimely as the result of a technical or system failure may 

seek appropriate relief from the court, and must include in that 

submission a declaration or affidavit attesting to the filer’s 

failed attempts to file electronically.

(K) Review and Correction by the Clerk of Court. The clerk of 

court may require a corrected copy of any submission that fails 

to comply with the court’s rules or the CM/ECF User Manual. 

The clerk of court may edit a CM/ECF filer’s docket entry or the 

clerk of court’s own entry to correct or supplement the text, and 

such a revision will be so identified.

(L) Sanctions for Failure to Comply. Failure to comply with the 

court’s rules may result in dismissal of the appeal or other 

action as deemed appropriate by the court. For example, failure 

to timely provide the required paper copies of a brief or appendix 

may result in dismissal of the appeal or in the case proceeding 

solely on the appellant’s opening brief.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 64

(2) Submissions by Pro Se Parties. All documents from pro se parties 

must be provided to the court in paper form. The court will scan the 

documents provided by the pro se parties and place them on the 

electronic docket. The court will discard other paper documents once 

they have been scanned and made a part of the official record unless 

the electronic file thereby produced is incomplete or of questionable 

quality in accordance with judiciary records management policies.

(A) Facsimile and Email Transmission. A motion, response to a 

motion, reply to a response, or letter may be filed by email or 

facsimile transmission if submitted by a pro se party. The 

certificate of service must state whether a copy has been served 

on all parties by email or facsimile transmission. No other 

document, including for example an appeal or petition, may be 

filed or served by email or facsimile. A petition or appeal 

submitted by a pro se party must be filed with the court by mail 

or delivery, and the court must receive the document by the 

due date.

(B) Copies. Unless otherwise ordered in a particular case, three 

paper copies of any briefs, appendices, or petition for rehearing 

must be submitted to the court by a pro se party on or before the 

due dates provided in these rules. For all other documents, 

including for example motions or letters, only one paper copy is 

required.

(3) Entries by the Court. Unless otherwise provided, all orders, 

opinions, judgments, and other court-issued documents in cases 

maintained in the CM/ECF system will be issued electronically. Such 

issuance constitutes entry on the docket kept by the clerk of court. 

Electronic transmission of the Notice of Docket Activity constitutes any 

notice and service required by the court’s rules. Any document released 

electronically by the court without the original signature of a judge, 

clerk of court, or authorized court representative shall have the same 

force and effect as if signed. The clerk of court shall give notice in 

paper form to a person who is not an electronic filer.

(d) Format of Documents; Signatures. Documents filed electronically and in 

paper must comply with the format requirements set forth in the Federal 

Rules of Appellate Procedure, the Federal Circuit Rules, and any other 

requirements established by the court or by the CM/ECF User Manual. 

Where the court’s rules require a signature on a document, the name of the 

filer whose log-in and password is used to submit a document may be 

preceded by “/s/" and typed in the space where the signature would otherwise 

appear.

(e) Service.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 65

(1) Documents Submitted by Counsel. Registration as a CM/ECF filer 

constitutes consent to electronic service of all documents. If a 

document is filed by counsel through CM/ECF, the Notice of Docketing 

Activity generated by that filing constitutes service on opposing 

counsel. A certificate of service should indicate that the document was 

served through CM/ECF. Service of a filing to an invalid email address 

constitutes valid service if the individual has failed to timely provide a 

current email address. If one of the other parties is proceeding pro se, 

then counsel must serve a paper copy of any document as provided in 

Federal Rules of Appellate Procedure 25(c), (d), and a certificate of 

service must be included to explain how service was achieved on the 

pro se party. If a document is filed and served electronically on a nonbusiness day, timeliness and calculation of any responsive deadlines 

will begin on the next business day. Three additional days are NOT 

added to the time to file a responsive document because the court 

considers service by email through CM/ECF to be delivered when 

transmitted.

(2) Documents Submitted by Pro Se Parties. A copy of any document 

submitted to the court by a pro se party must be mailed, delivered or 

transmitted by the pro se party to all other parties as provided in 

Federal Rules of Appellate Procedure 25(c), (d). A certificate of service 

is required to be included with the document to explain how the 

document was provided to the other parties in the case. See Form 30.

(f) Privacy. Unless ordered otherwise, all parties (including pro se parties) 

must refrain from including or must redact the following personal data 

identifiers from documents filed with the court: Social Security numbers; 

financial account numbers; names of minors (use instead the minor’s initials); 

dates of birth (use the year only); home addresses (use the city and state 

only). If a party refers to materials in appendices that a party determines for 

good reason and in compliance with court rules should not be made available 

to the public on the Internet through PACER, then two versions of the 

appendices must be filed: a nonconfidential public version with the sensitive 

materials redacted, and an unredacted confidential version of the full 

document. The responsibility for redacting restricted or sensitive materials 

from documents and assuring that all materials contained in the public 

version of documents rests solely with the parties and counsel. The clerk of 

court will not review documents filed for compliance with this requirement.

(g) Retention of documents. Documents that are electronically filed and 

require original signatures other than that of the CM/ECF filer (such as an 

affidavit signed by a person other than the CM/ECF filer) must be 

maintained in paper form by the CM/ECF filer until the case is terminated 

with finality and with no right of appeal or until such later date as the court 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 66

prescribes. On request of the court, the CM/ECF filer must provide original 

documents for review.

Practice Notes

LOCATION OF CLERK’S OFFICE; HOURS OF OPERATION; NIGHT BOX. 

The clerk’s office is in Room 401 of the National Courts Building, 717 Madison 

Place, NW, Washington, DC 20439, and is open from 8:30 a.m. to 4:30 p.m. on 

workdays. After the office closes on workdays, papers may be deposited until 

midnight in a night box at the garage entrance on H Street NW, between 15th 

Street and Madison Place.

CLERK’S MAILING ADDRESS. Address mail as follows:

Clerk of Court

United States Court of Appeals for the

Federal Circuit 717 Madison Place NW

Washington, DC 20439

The clerk of court will not pay postage due.

CLERK’S FACSIMILE NUMBER. Documents which Federal Circuit Rule 25

permits to be sent by facsimile to the clerk of court by pro se parties should be sent 

to: 202-275-9678. Note that appeals and petitions for review may NOT be filed by 

facsimile.

CLERK’S OFFICE EMAIL. Email address (prose@cafc.uscourts.gov) may only be 

used by pro se filers.

PROOF OF SERVICE. Each brief, petition, motion, response, or reply must 

contain proof of service. If filed by counsel through CM/ECF, the certificate of 

service may state that the brief or other document was filed through CM/ECF and

thereby served electronically. If filed by or to a pro se party, the certificate must 

state how the document was mailed or delivered. The original filed pro se with the 

court must be signed.

RETURN COPY MARKED RECEIVED. When a brief or other paper is presented 

for filing and the filer provides a copy to be marked “received,” the clerk of court will 

mark it received and return it. If the filing is by mail or if the night box is used, a 

self-addressed, postage-paid (first class) return envelope must accompany the 

request.

FILING REVIEW AND CORRECTION BY THE CLERK. The clerk of court may 

review material submitted for filing and require correction to conform with the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 67

Federal Rules of Appellate Procedure and the Federal Circuit Rules. The clerk of 

court will issue a notice advising of the nature of the nonconformity and guidelines 

for resubmission. Opposing counsel will be notified of the required correction. The 

timeliness of a response is computed from date of service of the original material. 

Because of occasional delays with some mail transmitted by the United States 

Postal Service, due to screening or other issues, if a document such as a notice of 

appeal, petition for review, motion, or other document must be received by the court 

on a particular date, then the pro se filer might consider using an alternative 

method of delivering the document to the court, such as a commercial carrier or

hand-delivery. The court cannot waive the deadlines for filing a notice of appeal or 

petition for review, even if the document was deposited in the mail in a timely 

fashion. Federal Rule of Appellate Procedure 26(b).

PRO SE PARTIES WHO ARE ATTORNEYS. If a pro se party is also an 

attorney, that individual may use CM/ECF only if the attorney is registered as a 

member of the court’s bar and if the attorney enters an appearance. If the pro se 

party who also happens to be an attorney is not registered as a member of the bar, 

that pro se party must proceed by following the rules applicable to pro se parties 

and thus may not use CM/ECF.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 68

Federal Rule of Appellate Procedure 26

Rule 26. Computing and Extending Time

(a) Computing Time. The following rules apply in computing any time period 

specified in these rules, in any local rule or court order, or in any statute that does 

not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a 

longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; 

and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or 

legal holiday, the period continues to run until the end of the next day that is not a 

Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the 

period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and 

legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period 

continues to run until the same time on the next day that is not a Saturday, 

Sunday, or legal holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the 

clerk’s office is inaccessible:

(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended 

to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 26(a)(2), then the time for filing is 

extended to the same time on the first accessible day that is not a Saturday, 

Sunday, or legal holiday.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 69

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court 

order, the last day ends:

(A) for electronic filing in the district court, at midnight in the court’s time zone;

(B) for electronic filing in the court of appeals, at midnight in the time zone of the 

circuit clerk’s principal office;

(C) for filing under Rules 4(c)(1), 25(a)(2)(B), and 25(a)(2)(C)—and filing by mail 

under Rule 13(b)—at the latest time for the method chosen for delivery to the post 

office, third-party commercial carrier, or prison mailing system; and

(D) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward 

when the period is measured after an event and backward when measured before 

an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin Luther King 

Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor 

Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday 

by the state where either of the following is located: the district court that rendered 

the challenged judgment or order, or the circuit clerk’s principal office.

(b) Extending Time. For good cause, the court may extend the time prescribed by 

these rules or by its order to perform any act, or may permit an act to be done after 

that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to 

appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, 

enforce, or otherwise review an order of an administrative agency, board, 

commission, or officer of the United States, unless specifically authorized by law.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 70

(c) Additional Time after Certain Kinds of Service. When a party may or must act 

within a specified time after being served, 3 days are added after the period would 

otherwise expire under Rule 26(a), unless the paper is delivered on the date of 

service stated in the proof of service. For purposes of this Rule 26(c), a paper that is 

served electronically is treated as delivered on the date of service stated in the proof 

of service.

Federal Circuit Rule 26

Rule 26. Computing and Extending Time

(a) Computation of Time; Closing the Clerk’s Office. “Legal holiday” also 

means a day on which the clerk’s office is closed by order of the court or the 

chief judge. Such an order will be posted publicly.

(b) Motion to Extend Time.

(1) A motion to extend the time prescribed by the Federal Rules of 

Appellate Procedure, the Federal Circuit Rules, or an order of this 

court must be made at least 7 days before the date sought to be 

extended, except that in extraordinary circumstances a motion may be 

made later than that deadline if accompanied by an affidavit or 

unsworn declaration under penalty of perjury under 28 U.S.C. § 1746

that describes the extraordinary circumstances.

(2) Before filing the motion, the movant must inform all other parties that 

it will seek an extension.

(3) The movant must state in the motion whether any other parties object 

and, if so, whether a response in opposition will be filed.

(4) In addition to showing good cause, the motion must state:

(A) the date to be extended;

(B) the revised date sought;

(C) the number of days of extension sought; and

(D) the total number of days of extension previously granted to the 

movant.

(5) A request for an extension of more than 14 days must be accompanied 

by an affidavit or unsworn declaration of counsel or a pro se party 

under penalty of perjury under 28 U.S.C. §1746 showing good cause for 

the extension.

(c) Electronic service of documents by counsel through CM/ECF. Three 

additional days are NOT added to the time to file a responsive document, 

when the original document was filed through CM/ECF, because the court 

considers service by email through CM/ECF to be delivered when 

transmitted.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 71

Practice Notes

OPPOSITION TO EXTENSION. If a party opposes a motion for extension of time, 

that party should file its response promptly. The court will not necessarily wait for 

an opposition before ruling on a motion.

BENEFIT OF TIMELY EXTENSION REQUEST. Unless the court has 

previously ordered that there will be no further extensions, an appeal will not be 

dismissed for failure to file appellant’s brief if appellant’s motion to extend the time 

for filing was filed and served at least seven days before the due date for the brief, 

but the motion has not been acted on by the due date. 

EXTENSION DURING SETTLEMENT NEGOTIATIONS. Parties jointly 

stipulating that they are actively pursuing settlement of the case will be granted a 

reasonable extension of time to accomplish settlement.

COURT ORDER. Federal Rule of Appellate Procedure 26(c) does not apply when a 

court order requires action within a specified time; the due date is as specified in 

the order.

EXTENSION TO RESOLVE CONFIDENTIALITY ISSUES. The Court will 

grant a 5-day extension of time to file any brief, motion, response, or reply upon 

certification by counsel for the filer that additional time is needed to resolve 

confidentiality issues.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 72

Federal Rule of Appellate Procedure 26.1

Rule 26.1 Corporate Disclosure Statement

(a) Who Must File. Any nongovernmental corporate party to a proceeding in a 

court of appeals must file a statement that identifies any parent corporation and 

any publicly held corporation that owns 10% or more of its stock or states that there 

is no such corporation.

(b) Time for Filing; Supplemental Filing. A party must file the Rule 26.1(a) 

statement with the principal brief or upon filing a motion, response, petition, or 

answer in the court of appeals, whichever occurs first, unless a local rule requires 

earlier filing. Even if the statement has already been filed, the party’s principal 

brief must include the statement before the table of contents. A party must 

supplement its statement whenever the information that must be disclosed under 

Rule 26.1(a) changes.

(c) Number of Copies. If the Rule 26.1(a) statement is filed before the principal 

brief, or if a supplemental statement is filed, the party must file an original and 3 

copies unless the court requires a different number by local rule or by order in a 

particular case.

Federal Circuit Rule 26.1

Rule 26.1. Corporate Disclosure Statement

The corporate disclosure statement must be included in the certificate of interest 

prescribed in Federal Circuit Rule 47.4. A certificate of interest must be filed by any 

party represented by counsel within 14 days of the date of docketing of the appeal or 

petition. See Federal Circuit Rule 47.4 for additional requirements. Each brief, 

petition or motion filed by counsel must also include a certificate of interest. A party 

represented by counsel must file an amended certificate of interest promptly when 

any of the information required by the certificate changes.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 73

Practice Notes

CERTIFICATE OF INTEREST. The requirements of Federal Rule of Appellate 

Procedure 26.1 are satisfied by filing a certificate of interest under Federal Circuit 

Rule 47.4. See Form 9.

TIMELY UPDATES. The court uses the Certificate of Interest to determine when 

recusal of a judge may be appropriate. Thus, timely correction and updating of the 

certificate is required to identify potential conflicts.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 74

Federal Rule of Appellate Procedure 27

Rule 27. Motions

(a) In General.

(1) Application for Relief. An application for an order or other relief is made by 

motion unless these rules prescribe another form. A motion must be in writing 

unless the court permits otherwise.

(2) Contents of a Motion.

(A) Grounds and Relief Sought. A motion must state with particularity the grounds 

for the motion, the relief sought, and the legal argument necessary to support it.

(B) Accompanying Documents.

(i) Any affidavit or other paper necessary to support a motion must be served and 

filed with the motion.

(ii) An affidavit must contain only factual information, not legal argument.

(iii) A motion seeking substantive relief must include a copy of the trial court’s 

opinion or agency’s decision as a separate exhibit.

(C) Documents Barred or Not Required.

(i) A separate brief supporting or responding to a motion must not be filed.

(ii) A notice of motion is not required.

(iii) A proposed order is not required.

(3) Response.

(A) Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its 

contents. The response must be filed within 10 days after service of the motion 

unless the court shortens or extends the time. A motion authorized by Rules 8, 9,

18, or 41 may be granted before the 10-day period runs only if the court gives 

reasonable notice to the parties that it intends to act sooner.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 75

(B) Request for Affirmative Relief. A response may include a motion for affirmative 

relief. The time to respond to the new motion, and to reply to that response, are 

governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the 

court to the request for relief.

(4) Reply to Response. Any reply to a response must be filed within 7 days after 

service of the response. A reply must not present matters that do not relate to the 

response.

(b) Disposition of a Motion for a Procedural Order. The court may act on a 

motion for a procedural order—including a motion under Rule 26(b)—at any time 

without awaiting a response, and may, by rule or by order in a particular case, 

authorize its clerk to act on specified types of procedural motions. A party adversely 

affected by the court’s, or the clerk’s, action may file a motion to reconsider, vacate, 

or modify that action. Timely opposition filed after the motion is granted in whole or 

in part does not constitute a request to reconsider, vacate, or modify the disposition; 

a motion requesting that relief must be filed.

(c) Power of a Single Judge to Entertain a Motion. A circuit judge may act 

alone on any motion, but may not dismiss or otherwise determine an appeal or other 

proceeding. A court of appeals may provide by rule or by order in a particular case 

that only the court may act on any motion or class of motions. The court may review 

the action of a single judge. 

(d) Form of Papers; Page Limits; and Number of Copies.

(1) Format.

(A) Reproduction. A motion, response, or reply may be reproduced by any process 

that yields a clear black image on light paper. The paper must be opaque and 

unglazed. Only one side of the paper may be used.

(B) Cover. A cover is not required, but there must be a caption that includes the 

case number, the name of the court, the title of the case, and a brief descriptive title 

indicating the purpose of the motion and identifying the party or parties for whom it 

is filed. If a cover is used, it must be white.

(C) Binding. The document must be bound in any manner that is secure, does not 

obscure the text, and permits the document to lie reasonably flat when open.

(D) Paper Size, Line Spacing, and Margins. The document must be on 8 1/2 by 11 

inch paper. The text must be double-spaced, but quotations more than two lines 

long may be indented and single-spaced. Headings and footnotes may be single-
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 76

spaced. Margins must be at least one inch on all four sides. Page numbers may be 

placed in the margins, but no text may appear there.

(E) Typeface and Type Styles. The document must comply with the typeface 

requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).

(2) Length Limits. Except by the court’s permission, and excluding the 

accompanying documents authorized by Rule 27(a)(2)(B): 

(A) a motion or response to a motion produced using a computer must not exceed 

5,200 words; 

(B) a handwritten or typewritten motion or response to a motion must not exceed 20 

pages; 

(C) a reply produced using a computer must not exceed 2,600 words; and 

(D) a handwritten or typewritten reply to a response must not exceed 10 pages.

(3) Number of Copies. An original and 3 copies must be filed unless the court 

requires a different number by local rule or by order in a particular case.

(e) Oral Argument. A motion will be decided without oral argument unless the 

court orders otherwise.

Federal Circuit Rule 27

Rule 27. Motions

(a) Content of Motion. The preferred content and organization of a motion are:

(1) the name of this court;

(2) the caption. If the motion is for a procedural order on consent, the 

short caption may be used. For any other motion, the official caption 

must be used;

(3) the title of the motion;

(4) the grounds for the motion, the relief sought, and the legal argument 

to support the motion;

(5) the movant’s statement of consent or opposition to the motion. The 

movant must state in the motion that the movant has discussed the 

motion with the other parties, whether any party will object, and 

whether any party will file a response;

(6) counsel’s or pro se party’s signature;
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 77

(7) the certificate of interest. The certificate of interest (see Federal 

Circuit Rule 47.4) must be included in each motion;

(8) supporting affidavit. If the facts relied on in the motion are subject to 

dispute, an affidavit or unsworn declaration under penalty of perjury 

under 28 U.S.C. § 1746 must be attached to the motion;

(9) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(b) Response; When Filed; Content. If a motion states that it is consented to 

or unopposed, a response is not required. If a motion does not state whether –

or incorrectly states that – it is consented to or unopposed, a response should 

be filed as soon as the omission or error becomes known. The preferred 

organization of a response is comparable to the organization of a motion 

provided in (a) of this rule and the preferred content of a response is:

(1) as provided in (a)(1), (2), (6), (7), (8), and (9) of this rule; and

(2) the grounds for denying the motion, limiting the relief granted, or 

modifying the order sought, and the legal argument to support the 

response; or the responding party’s statement of consent or lack of 

opposition.

(c) Content of Reply. The preferred organization of a reply is comparable to 

the organization of a motion as provided in (a) of this rule and the preferred 

content of the reply is:

(1) as provided in (a)(1), (2), (6), (7), (8), and (9) of this rule; and

(2) the reply to the response and the legal argument to support it.

(d) Length of Motion, Response, or Reply; Cover and Backing; 

Attachments. Items listed in Federal Circuit Rule 27(a)(7)-(9) do not count 

toward the word limitation in Federal Rule of Appellate Procedure 27(d)(2). 

Cover and backing for a motion, response, or reply are not required. If a 

motion includes several attachments or exhibits, the court prefers that the 

attachments or exhibits be separately tabbed for ease of reference.

(e) Motion to Strike; Response. A motion to strike all or part of a brief, except 

to strike scandalous matter, is prohibited as long as the party seeking to 

strike has the right to file a responsive brief in which the objection could be 

made. A response, if any, in opposition to a motion to strike must be included 

in the responsive brief if one is authorized, or may be filed if leave is sought 

and obtained, or may be made at oral argument.

(f) Motion to Dismiss or to Remand; Response. A motion to dismiss for lack 

of jurisdiction or to remand should be made as soon after docketing as the 

grounds for the motion are known. After the appellant or petitioner has filed 

the principal brief, the argument supporting dismissal for lack of jurisdiction 

or remand should be made in the brief of the appellee or respondent. A 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 78

response in opposition, if any, should be included in the responsive brief. 

Joint or unopposed motions or stipulations to dismiss or to remand may be 

made at any time.

(g) Motion Incorporated in a Brief. Except as provided in Federal Circuit 

Rule 27(e) and (f), a motion must not be incorporated in a brief.

(h) Delegation of Authority to the Clerk of Court. The clerk of court is 

authorized to act on any procedural motion or unopposed nonprocedural 

motion, but may not act on an opposed nonprocedural motion or any motion 

that requires action by a judge or panel of judges. The clerk of court may also 

direct an expedited response to a motion or petition and may direct the 

parties to show cause why an appeal or petition should not be dismissed. 

Even if the clerk of court is authorized to act on a particular motion, the clerk 

of court may nonetheless refer the matter to a judge or panel, or may defer 

the matter to the merits panel, when appropriate.

(i) Ex Parte Application. Neither the court nor any judge of the court will 

conduct an ex parte hearing on an application for relief.

(j) Copies. No paper copies are required to be provided to the court for any 

motion, response, or reply that is submitted by counsel through CM/ECF. If a 

motion, response or reply is filed by a pro se party, then one paper copy must 

be provided by the court.

(k) Application for Consideration, Vacation, or Modification of 

Procedural Order. A party adversely affected by a procedural order entered 

on a motion without awaiting the response time or by an order of the clerk of 

court may move for relief within 14 days of the order or action. The 

application must be made by motion.

(l) Review or Reconsideration of the Order of a Single Judge or Panel of 

Judges. Except for a dispositive order issued by a panel, which time will be 

governed by Federal Rule of Appellate Procedure 40(a)(1), a party seeking 

review by the court of the action of a single judge or reconsideration of the 

action of a panel of judges must file a motion for reconsideration within 14 

days of the entry of the order.

(m) Motions Containing Material Subject to a Protective Order.

(1) Confidentiality.

(A) Except as provided herein, no material in a motion, response, or 

reply shall be marked confidential, including references to 

information previously treated as confidential pursuant to a 

protective order. The exceptions are as follows: In cases other 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 79

than those arising under 19 U.S.C. § 1516a or 28 U.S.C. § 

1491(b), each motion, response, or reply may mark confidential 

up to fifteen (15) words (including numbers) if the information 

(1) was treated in the matter under review as confidential 

pursuant to a judicial or administrative protective order and (2) 

such marking is authorized by statute, administrative 

regulation, or court rule (such as Federal Rule of Civil Procedure 

26(c)(1)). When words are marked confidential in a motion, 

response, or reply, repeating the marked words in the same 

motion, response, or reply shall not add to the count toward the 

fifteen-word allotment. A response need not count toward its 

allotment any words that were already marked confidential in 

the motion to which it responds; a reply need not count words 

that were marked confidential in the response but not in the 

motion. A party seeking to mark confidential more than fifteen 

words must file a motion with this court establishing that the 

additional confidentiality markings are appropriate and 

necessary pursuant to a statute, administrative regulation, or 

court rule. For example, a party may establish that an argument 

cannot be properly developed without additional disclosure of 

confidential information in the motion, response, or reply, and 

public disclosure will risk causing competitive injury. Such a 

motion shall be made contemporaneously with the filing of the 

underlying motion, response, or reply, and the marked material 

shall be treated as confidential until the court acts on the 

motion. If the motion to mark additional material confidential is 

denied in whole or in part, an amended motion, response or 

reply shall be filed within ten (10) days of the action on the 

motion. In cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 

1491(b), each motion, response, or reply may mark confidential 

up to fifty (50) words (including numbers). 

(B) Attachments and exhibits to a motion, response, or reply may be 

marked confidential to the extent permitted for appendix 

material under Federal Circuit Rule 30(h).

(2) Two Versions of the Motions Documents. If a party refers in a 

motion to material subject to confidentiality as permitted by Federal 

Circuit Rule 27(m)(1) two versions of motions documents must be filed.

(A) Confidential version; One version of motion documents must 

be labeled “confidential” and filed with the court. If 

confidentiality will end on a date certain or upon the happening 

of an event, this must be stated on the cover, e.g., 

“CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL 

DURING JUDICIAL REVIEW.” Each page containing 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 80

confidential material must enclose this material in brackets or 

indicate this material by highlighting.

(B) Nonconfidential version; The second version of motion 

documents from which confidential matter has been deleted, 

must be labeled “nonconfidential” and filed with the court. Each 

page from which material subject to a protective order has been 

deleted must bear a legend so stating. The introductory 

paragraph of the nonconfidential motion or response must 

describe the general nature of the confidential material that has 

been deleted.

(3) Service. Each party to the appeal must be served two copies of the 

confidential motion documents if otherwise permitted by the applicable 

protective order.

(4) Availability to the Public. The confidential motion documents will 

be made available only to authorized court personnel and must not be 

made available to the public. After five years following the end of all 

proceedings in the court, the parties may be directed to show cause 

why confidential motion papers (except those protected by statute) 

should not be made available to the public.

Practice Notes

CONTENT OF A MOTION, RESPONSE, OR REPLY. Using Federal Circuit 

Rule 27’s preferred content and organization for a motion, response, or reply will 

help avoid delays caused by the need for additional information. Although motions, 

responses, and replies need not have the formality of briefs, a motion, response, or 

reply may be rejected if it is not substantially complete.

MOOT RESPONSE. A response to a motion for a procedural order that is received 

after the motion has been acted on is considered moot.

AUTHORITY TO ACT ON MOTIONS; MOTIONS REFERRED TO PANEL. 

Neither the clerk of court nor the court is required to grant relief just because the 

parties agree it should be granted. The clerk of court’s authority to act on 

procedural or unopposed nonprocedural motions includes the authority to grant or 

deny the requested relief in whole or in part or to refer the motion to a judge or

a panel. Examples of procedural motions include motions for extensions of time, 

motions to reform the caption, motions for leave to file various documents, motions 

for leave to proceed in forma pauperis, etc. Examples of nonprocedural motions 

include motions to dismiss, motions to remand, motions to transfer, motions to 

summarily affirm judgments, motions for stays of injunctions, motions to strike 

portions of briefs or appendices, motions for leave to intervene, motions for leave to 

file briefs as amici curiae, etc. Motions to exceed the permitted word or page 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 81

limitation for a brief will be decided by a judge. If the clerk of court grants a motion 

to extend the time to file a principal brief by 60 days, no further extensions should 

be anticipated. Once a case is assigned to a merits panel, the clerk of court refers all 

motions to the merits panel.

TELEPHONE INQUIRY ABOUT PENDING MOTIONS; ACCESS TO 

ORDERS ON WEBSITE. Telephone inquiries about pending motions are 

discouraged because they divert the clerk’s office staff from more pressing duties. 

Most orders are considered routine and counsel may await notification by mail or 

Notice of Docket Activity (NDA). Counsel or the parties may often determine the 

status of a pending motion and obtain copies of court orders through CM/ECF or 

PACER. Many pertinent orders, including en banc orders, are promptly posted on 

the court’s opinions and orders page. Under no circumstances should anyone 

telephone a judge or the office of the senior staff attorney about a motion. In an 

emergency, you may call the clerk’s office.

MOTION TO EXPEDITE PROCEEDINGS. While motions to expedite 

proceedings are not routinely granted, they may be filed in an appropriate case. A 

motion for expedited proceedings is the procedural vehicle to request the court to 

accelerate consideration of an appeal or petition for review, and should be filed 

immediately upon filing of an appeal or petition for review. Such a motion is 

appropriate where the normal briefing and disposition schedule may adversely 

affect one of the parties, such as appeals involving preliminary or permanent 

injunctions, or government contract bid protests. A motion for expedited 

proceedings should be styled as an “Emergency Motion.” Unopposed emergency 

motions should still include a brief review of the grounds for the motion, the specific 

relief sought by way of a proposed briefing schedule, and the legal argument to 

support the motion, per Federal Circuit Rule 27(a)(4). A motion for expedited 

proceedings should also include as part of the relief sought a request for an 

expedited briefing schedule for the motion.

CERTIFICATE OF COMPLIANCE WITH CONFIDENTIALITY 

REQUIREMENTS. Federal Circuit Rule 27(m) limits the amount of material that 

can be marked confidential in motions, responses and replies. A motion, response 

or reply including confidential material must be accompanied by a certificate that 

the motion, response or reply complies with the word limitation. Federal Circuit 

Form 31 is a suggested form of a certificate of compliance with this rule. It is the 

responsibility of the filing party to ensure that its certificate of compliance is 

accurate. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 82

Federal Rule of Appellate Procedure 28

Rule 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate 

headings and in the order indicated:

(1) a corporate disclosure statement if required by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities—cases (alphabetically arranged), statutes, and other 

authorities—with references to the pages of the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court’s or agency’s subject-matter jurisdiction, with 

citations to applicable statutory provisions and stating relevant facts establishing 

jurisdiction;

(B) the basis for the court of appeals’ jurisdiction, with citations to applicable 

statutory provisions and stating relevant facts establishing jurisdiction;

(C) the filing dates establishing the timeliness of the appeal or petition for review; 

and

(D) an assertion that the appeal is from a final order or judgment that disposes of 

all parties’ claims, or information establishing the court of appeals’ jurisdiction on 

some other basis;

(5) a statement of the issues presented for review;

(6) a concise statement of the case setting out the facts relevant to the issues 

submitted for review, describing the relevant procedural history, and identifying the 

rulings presented for review, with appropriate references to the record (see Rule 

28(e));

(7) a summary of the argument, which must contain a succinct, clear, and accurate 

statement of the arguments made in the body of the brief, and which must not 

merely repeat the argument headings;

(8) the argument, which must contain:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 83

(A) appellant’s contentions and the reasons for them, with citations to the 

authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review (which 

may appear in the discussion of the issue or under a separate heading placed before 

the discussion of the issues);

(9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief. The appellee’s brief must conform to the requirements of Rule 

28(a)(1)–(8) and (10), except that none of the following need appear unless the 

appellee is dissatisfied with the appellant’s statement:

(1) the jurisdictional statement;

(2) the statement of the issues;

(3) the statement of the case; and

(4) the statement of the standard of review.

(c) Reply Brief. The appellant may file a brief in reply to the appellee’s brief. 

Unless the court permits, no further briefs may be filed. A reply brief must contain 

a table of contents, with page references, and a table of authorities—cases 

(alphabetically arranged), statutes, and other authorities—with references to the 

pages of the reply brief where they are cited.

(d) References to Parties. In briefs and at oral argument, counsel should 

minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel 

should use the parties’ actual names or the designations used in the lower court or 

agency proceeding, or such descriptive terms as “the employee,” “the injured 

person,” “the taxpayer,” “the ship,” “the stevedore.”

(e) References to the Record. References to the parts of the record contained in 

the appendix filed with the appellant’s brief must be to the pages of the appendix. If 

the appendix is prepared after the briefs are filed, a party referring to the record 

must follow one of the methods detailed in Rule 30(c). If the original record is used 

under Rule 30(f) and is not consecutively paginated, or if the brief refers to an 

unreproduced part of the record, any reference must be to the page of the original 

document. For example:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 84

• Answer p. 7;

• Motion for Judgment p. 2;

• Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose 

admissibility is in controversy must cite the pages of the appendix or of the 

transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc. If the court’s 

determination of the issues presented requires the study of statutes, rules, 

regulations, etc., the relevant parts must be set out in the brief or in an addendum 

at the end, or may be supplied to the court in pamphlet form.

(g) [Reserved]

(h) [Reserved]

(i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case 

involving more than one appellant or appellee, including consolidated cases, any 

number of appellants or appellees may join in a brief, and any party may adopt by 

reference a part of another’s brief. Parties may also join in reply briefs.

(j) Citation of Supplemental Authorities. If pertinent and significant authorities 

come to a party’s attention after the party’s brief has been filed—or after oral 

argument but before decision—a party may promptly advise the circuit clerk by 

letter, with a copy to all other parties, setting forth the citations. The letter must 

state the reasons for the supplemental citations, referring either to the page of the 

brief or to a point argued orally. The body of the letter must not exceed 350 words. 

Any response must be made promptly and must be similarly limited.

Federal Circuit Rule 28

Rule 28. Briefs

(a) Contents of Brief; Organization of Contents; Addendum; Binding. 

Briefs must be bound as prescribed in Rule 32 of the Federal Rules of 

Appellate Procedure and must contain the following in the order listed:

(1) the certificate of interest (see Federal Circuit Rule 47.4);

(2) the table of contents;

(3) the table of authorities;

(4) the statement of related cases (see Federal Circuit Rule 47.5);

(5) the jurisdictional statement including a representation that the 

judgment or order appealed from is final or, if not final, the basis for 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 85

appealability (e.g., preliminary injunction, Fed. R. Civ. P. 54(b) 

certification of final judgment as to fewer than all of the claims or 

parties, etc.);

(6) the statement of the issues;

(7) the statement of the case setting out the facts relevant to the issues, 

including the citation of any published decision of the trial tribunal in 

the proceedings;

(8) the summary of the argument;

(9) the argument, including statement of the standard of review;

(10) the conclusion and statement of relief sought;

(11) the judgment, order, or decision in question, and any opinion, 

memorandum, or findings and conclusions supporting it, as an 

addendum placed last within the initial brief of the appellant or 

petitioner. This requirement is met when the appendix is bound with 

the brief. (See Federal Circuit Rule 30(c)(1) and (d) for a duplicative 

requirement of the appendix.) Additionally, in an appeal involving a 

patent, the patent in suit may be included within the addendum of the 

initial brief and, if included, must be reproduced in its entirety. (See 

also Federal Circuit Rule 30(a)(2)(A)(iii) and Federal Circuit Rule 

30(a)(3) for a requirement that the patent in suit be included in its 

entirety in the appendix). Addendum material must be paginated with 

the corresponding appendix page numbers following the numbering

format specified in Federal Circuit Rule 30(b)(4)(E), e.g. “Appx134,” 

“Appx3-17,” or “SAppx1185”;

(12) the proof of service (see Federal Rule of Appellate Procedure 25(d)); 

and

(13) the certificate of compliance, if required by Federal Rule of Appellate 

Procedure 32(g)(1).

(b) Appellee’s Jurisdictional Statement and Statements of the Issues, the 

Case, the Facts, and the Standard of Review. The appellee’s 

jurisdictional statement and statements of the issues, the case, the facts, and 

the standard of review must be limited to specific areas of disagreement with 

those of the appellant. Absent disagreement, the appellee must not include 

any of those statements. The statement of the case must include the citation 

of any published decision of the trial tribunal in the proceedings that is not 

included in the appellant’s statement of the case.

(c) Motion to File Extended Brief. The court looks with disfavor on a motion 

to file an extended brief and grants it only for extraordinary reasons. Unless 

the order granting a motion to file an extended brief provides otherwise, 

when additional pages or words are allowed in the principal brief of an 

appellant or cross-appellant, a responsive brief permitted by the rules may 

contain the same number of additional pages or words.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 86

(d) Brief Containing Material Subject to a Protective Order.

(1) Confidentiality.

(A) Except as provided herein, no material in briefs shall be marked

confidential, including references to information previously

treated as confidential pursuant to a protective order. The 

exceptions are as follows: In cases other than those arising 

under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each brief may 

mark confidential up to fifteen (15) words (including numbers) if 

the information (1) was treated in the matter under review as 

confidential pursuant to a judicial or administrative protective

order and (2) such marking is authorized by statute,

administrative regulation, or court rule (such as Federal Rule of 

Civil Procedure 26(c)(1)). When words are marked confidential 

in a brief, repeating the marked words in the same brief shall 

not add to the count toward the fifteen-word allotment. A brief 

need not count toward its allotment words that were marked 

confidential for the first time in the briefing cycle in an 

immediately preceding brief to which it is responding. A party 

seeking to mark confidential more than fifteen words in any 

brief must file a motion with this court establishing that the 

additional confidentiality markings are appropriate and

necessary pursuant to a statute, administrative regulation, or 

court rule. For example, a party may establish that an argument 

cannot be properly developed without additional disclosure of 

confidential information in the brief, and public disclosure will 

risk causing competitive injury. Such a motion shall be made 

contemporaneously with the filing of the brief, and the marked 

material shall be treated as confidential until the court acts on 

the motion. If the motion is denied in whole or in part, an 

amended brief shall be filed within ten (10) days of the action on 

the motion. In cases arising under 19 U.S.C. § 1516a or 28 

U.S.C. § 1491(b), each brief may mark confidential up to fifty 

(50) words (including numbers).

(B) Addendum material may be marked confidential to the extent 

permitted for appendix material. See Federal Circuit Rule 30(h).

(C) For purposes of this subsection (d), petitions for en banc or panel 

rehearing and responses thereto shall be considered to be briefs.

(2) Two Versions of Briefs. If a party refers in a brief to material 

subject to confidentiality under Federal Circuit Rule 28(d) two versions 

of briefs must be filed. See Federal Circuit Rule 25 for requirements on 

filing briefs through CM/ECF, with paper copies to follow. The 

following subsections relate to the paper briefs that are filed after a 

brief is accepted for filing through CM/ECF.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 87

(A) Confidential version; labeling; number of copies. Counsel 

should file one version of paper briefs, consisting of six copies, 

which must be labeled “confidential.” If confidentiality will end 

on a date certain or upon the happening of an event, this must 

be stated on the cover, e.g., “CONFIDENTIAL UNTIL [DATE],”

or “CONFIDENTIAL DURING JUDICIAL REVIEW.” Each 

page containing confidential material must enclose this material 

in brackets or indicate this material by highlighting.

(B) Nonconfidential brief; labeling; number of copies. Counsel 

should file the nonconfidential brief through CM/ECF. No paper 

copies are required if the nonconfidential brief was filed through 

CM/ECF and paper copies of the confidential brief were filed, 

unless otherwise ordered. The nonconfidential brief, from which 

confidential matter has been deleted, must be labeled 

“nonconfidential” and each page from which confidential 

material has been deleted must bear a legend so stating. The 

table of contents of a nonconfidential brief must describe the 

general nature of the confidential material that has been 

deleted.

(3) Service. A nonconfidential brief filed by counsel through CM/ECF is 

served on each party through a Notice of Docket Activity (NDA). Each 

party to the appeal must be served two paper copies of any confidential 

brief when permitted by the applicable protective order.

(4) Availability to the Public. The confidential briefs will be made 

available only to authorized court personnel and must not be made 

available to the public. After 5 years following the end of all 

proceedings in the court, the parties may be directed to show cause 

why confidential briefs (except those protected by statute) should not 

be made available to the public.

(5) Agreement to Remove Confidentiality Markings. Before the filing 

of any motion to mark material as confidential and thereafter if a 

motion is filed, the parties shall attempt to reach agreement that 

material should not be marked confidential in briefs or motions 

pursuant to Federal Circuit Rules 11(d) or 17(f).

(e) Citations. Opinions of this court and its predecessors should be cited as 

found in the Federal Reporter. Parallel citations to any other reporters are 

discouraged. Examples of acceptable citations are:

 Guotos v. United States, 552 F.2d 992 (Ct. Cl. 1976). 

 In re Sponnable, 405 F.2d 578 (CCPA 1969).

 South Corporation v. United States, 690 F.2d 1368 (Fed. Cir. 1982)(en banc).

 Doe v. Roe, No. 12-345, slip op. (Fed. Cir. Oct. 1, 1982).
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 88

(f) Reference to Appendix. Reference in the brief to pages of the joint 

appendix and, if permitted, of a supplemental appendix must be as short as 

possible consistent with clarity and must follow the numbering format 

specified in Federal Circuit Rule 30(b)(4)(E), e.g., “Appx134,” “Appx3-17” or 

“SAppx1185.”

(g) Pro se Briefs; Response.

(1) Informal Brief; Appellee’s Brief. A pro se party may file a formal 

brief or an informal brief, but not both. A pro se party may file an 

informal brief on the form prescribed by the court. When the appellant 

or petitioner files an informal brief, the appellee or respondent may 

elect to file an informal brief. An informal brief filed by an appellee or 

respondent must contain a statement of the case but otherwise follow 

the format prescribed for the pro se party. Three paper copies of an 

informal brief are required to be filed. See Federal Circuit Rule 

25(c)(2)(B).

(2) Formal Brief. If a pro se party chooses to file a formal brief, then an 

informal brief may not be filed. If a formal brief is filed, it must comply 

with the various rules of this court regarding format and content, and 

six paper copies must be filed.

(3) Response. In a responsive brief, the respondent must state whether or 

not respondent believes the court has jurisdiction over the petition for 

review, with reasons provided.

(h) Briefs in a Transferred Case. When an appeal is transferred to this court 

by another court of appeals after briefs have been filed, the parties may 

stipulate to proceed on those briefs instead of filing briefs prescribed by these 

rules. The stipulation must be filed within 14 days of docketing, and the 

briefs must be filed by counsel through CM/ECF, with the required number of 

paper copies to follow. See Federal Circuit Rule 25(c). The court may order 

supplemental briefs.

(i) Citation of Supplemental Authorities. Any citation of supplemental 

authorities must be submitted through CM/ECF by counsel. If filed by a pro 

se party, then 3 copies must be filed.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 89

Practice Notes

INFORMAL BRIEF. The informal brief procedure is explained in the Guide for 

Pro Se Petitioners and Appellants.

MULTIPLE PARTIES. When there are multiple parties represented by the same 

counsel or counsel from the same firm, a combined brief must be filed on behalf of 

all the parties represented by that counsel or firm.

DESCRIBING THE GENERAL NATURE OF CONFIDENTIAL MATERIAL

DELETED FROM THE NONCONFIDENTIAL BRIEF. The following example is 

acceptable:

CONFIDENTIAL MATERIAL OMITTED

The material omitted on page 42 describes the circumstances of an alleged 

lost sale; the material omitted in the first line of page 43 indicates the dollar 

amount of an alleged revenue loss; the material omitted on page 44 indicates 

the quantity of the party’s inventory and its market share; the material 

omitted in the text on page 45 describes the distributor’s experiences 

concerning the inventories and order lead times; and the material omitted in 

the footnote on page 45 describes non-price factors affecting customers’ 

preferences between competing methods.

JUSTIFICATION FOR CLAIM OF CONFIDENTIALITY. Unnecessarily 

designating material in the briefs and appendix as confidential may hinder the 

court’s preparation and issuance of opinions. Counsel must be prepared to justify at 

oral argument any claim of confidentiality.

INCLUSION OF PATENT CLAIMS. Any party or intervenor may include the 

language of a patent or claim at issue beginning on the inside of the front cover of 

the brief (this duplicate language is not counted pursuant to Fed. R. App. P. 

32(g)(1)), provided the same language is included in the brief.

CERTIFICATE OF COMPLIANCE WITH CONFIDENTIALITY 

REQUIREMENTS. Federal Circuit Rule 28(d) limits the amount of material that 

can be marked confidential in briefs. A brief including confidential material must 

be accompanied by a certificate that the brief complies with the word 

limitation. Federal Circuit Form 31 is a suggested form of a certificate of 

compliance with this rule. The form can be embedded within the brief or filed 

separately. It is the responsibility of the filing party to ensure that its certificate of 

compliance is accurate. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 90

Federal Rule of Appellate Procedure 28.1

Rule 28.1 Cross-Appeals

(a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 

28(a)–(c), 31(a)(1), 32(a)(2), and 32(a)(7)(A)–(B) do not apply to such a case, except 

as otherwise provided in this rule.

(b) Designation of Appellant. The party who files a notice of appeal first is the 

appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on 

the same day, the plaintiff in the proceeding below is the appellant. These 

designations may be modified by the parties’ agreement or by court order.

(c) Briefs. In a case involving a cross-appeal:

(1) Appellant’s Principal Brief. The appellant must file a principal brief in the 

appeal. That brief must comply with Rule 28(a).

(2) Appellee’s Principal and Response Brief. The appellee must file a principal brief 

in the cross-appeal and must, in the same brief, respond to the principal brief in the 

appeal. That appellee’s brief must comply with Rule 28(a), except that the brief 

need not include a statement of the case unless the appellee is dissatisfied with the 

appellant’s statement.

(3) Appellant’s Response and Reply Brief. The appellant must file a brief that 

responds to the principal brief in the cross-appeal and may, in the same brief, reply 

to the response in the appeal. That brief must comply with Rule 28(a)(2)–(8) and 

(10), except that none of the following need appear unless the appellant is 

dissatisfied with the appellee’s statement in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(C) the statement of the case; and

(D) the statement of the standard of review.

(4) Appellee’s Reply Brief. The appellee may file a brief in reply to the response in 

the cross-appeal. That brief must comply with Rule 28(a)(2)–(3) and (10) and must 

be limited to the issues presented by the cross-appeal.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 91

(5) No Further Briefs. Unless the court permits, no further briefs may be filed in a 

case involving a cross-appeal.

(d) Cover. Except for filings by unrepresented parties, the cover of the appellant’s 

principal brief must be blue; the appellee’s principal and response brief, red; the 

appellant’s response and reply brief, yellow; the appellee’s reply brief, gray; an 

intervenor’s or amicus curiae’s brief, green; and any supplemental brief, tan. The 

front cover of a brief must contain the information required by Rule 32(a)(2).

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant’s 

principal brief must not exceed 30 pages; the appellee’s principal and response brief, 

35 pages; the appellant’s response and reply brief, 30 pages; and the appellee’s reply 

brief, 15 pages. 

(2) Type-Volume Limitation. 

(A) The appellant’s principal brief or the appellant’s response and reply brief is 

acceptable if it: 

(i) contains no more than 13,000 words; or 

(ii) uses a monospaced face and contains no more than 1,300 lines of text. 

(B) The appellee’s principal and response brief is acceptable if it: 

(i) contains no more than 15,300 words; or 

(ii) uses a monospaced face and contains no more than 1,500 lines of text. 

(C) The appellee’s reply brief is acceptable if it contains no more than half of the 

type volume specified in Rule 28.1(e)(2)(A). 

(3) Certificate of Compliance. A brief submitted under Rule 28.1(e)(2) must comply 

with Rule 32(g)(1).

(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:

(1) the appellant’s principal brief, within 40 days after the record is filed;
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 92

(2) the appellee’s principal and response brief, within 30 days after the appellant’s 

principal brief is served;

(3) the appellant’s response and reply brief, within 30 days after the appellee’s 

principal and response brief is served; and

(4) the appellee’s reply brief, within 14 days after the appellant’s response and reply 

brief is served, but at least 7 days before argument unless the court, for good cause, 

allows a later filing.

Federal Circuit Rule 28.1

Rule 28.1 Cross-Appeals

(a) Page Limitation. Unless it complies with Federal Circuit Rule 28.1(b), the 

appellant's principal brief must not exceed 30 pages; the appellee's principal and 

response brief, 35 pages; the appellant's response and reply brief, 30 pages; and the 

appellee's reply brief, 15 pages.

(b) Type-Volume Limitation.

(1) The appellant's principal brief or the appellant's response and reply brief is 

acceptable if:

(A) it contains no more than 14,000 words; or

(B) it uses a monospaced face and contains no more than 1,300 lines of text.

(2) The appellee's principal and response brief is acceptable if:

(A) it contains no more than 16,500 words; or

(B) it uses a monospaced face and contains no more than 1,500 lines of text.

(3) The appellee's reply brief is acceptable if it contains no more than 7,000 words.

(c) Certificate of Compliance. A brief submitted under this rule must comply with 

Rule 32(g)(1)
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 93

Rule 28.1 Practice Notes

CROSS-APPEALS. A party may file a cross-appeal only when it seeks to modify or 

overturn the judgment of a trial tribunal. Although a party may present additional 

arguments in support of the judgment as an appellee, counsel are cautioned against 

improperly designating an appeal as a cross-appeal when they merely present 

arguments in support of the judgment. See Bailey v. Dart Container Corp., 292 F.3d 

1360 (Fed. Cir. 2002). Further, counsel are cautioned, in cases involving a proper 

cross-appeal, to limit the fourth brief to the issues presented by the cross-appeal. In 

all cases, counsel should be prepared to defend the filing of a cross-appeal and the 

propriety of arguments presented in the fourth brief at oral argument.

TIME TO SERVE AND FILE A BRIEF. Please refer to Federal Circuit Rule 31 

(a) for brief due dates when there is a cross-appeal.

CLARIFICATION TO FEDERAL RULE OF APPELLATE PROCEDURE 

28.1(4). Where the term “appellee” is used, it refers to the “cross-appellant.”
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 94

Federal Rule of Appellate Procedure 29

Rule 29. Brief of an Amicus Curiae

(a) During Initial Consideration of a Case on the Merits. 

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial 

consideration of a case on the merits. 

(2) When Permitted. The United States or its officer or agency or a state may file an 

amicus¬ curiae brief without the consent of the parties or leave of court. Any other 

amicus curiae may file a brief only by leave of court or if the brief states that all 

parties have consented to its filing. 

(3) Motion for Leave to File. The motion must be accompanied by the proposed brief 

and state: 

(A) the movant’s interest; and 

(B) the reason why an amicus brief is desirable and why the matters asserted are 

relevant to the disposition of the case. 

(4) Contents and Form. An amicus brief must comply with Rule 32. In addition to 

the requirements of Rule 32, the cover must identify the party or parties supported 

and indicate whether the brief supports affirmance or reversal. An amicus brief 

need not comply with Rule 28, but must include the following: 

(A) if the amicus curiae is a corporation, a disclosure statement like that required of 

parties by Rule 26.1; 

(B) a table of contents, with page references; 

(C) a table of authorities—cases (alphabetically arranged), statutes, and other 

authorities—with references to the pages of the brief where they are cited; 

(D) a concise statement of the identity of the amicus curiae, its interest in the case, 

and the source of its authority to file; 

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a 

statement that indicates whether: 

(i) a party’s counsel authored the brief in whole or in part; 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 95

(ii) a party or a party’s counsel contributed money that was intended to fund 

preparing or submitting the brief; and 

(iii) a person—other than the amicus curiae, its members, or its counsel—

contributed money that was intended to fund preparing or submitting the brief and, 

if so, identifies each such person; 

(F) an argument, which may be preceded by a summary and which need not include 

a statement of the applicable standard of review; and 

(G) a certificate of compliance under Rule 32(g)(1), if length is computed using a 

word or line limit. 

(5) Length. Except by the court’s permission, an amicus brief may be no more than 

one-half the maximum length authorized by these rules for a party’s principal brief. 

If the court grants a party permission to file a longer brief, that extension does not 

affect the length of an amicus brief. 

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a motion 

for filing when necessary, no later than 7 days after the principal brief of the party 

being supported is filed. An amicus curiae that does not support either party must 

file its brief no later than 7 days after the appellant’s or petitioner’s principal brief 

is filed. A court may grant leave for later filing, specifying the time within which an 

opposing party may answer. 

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a 

reply brief. 

(8) Oral Argument. An amicus curiae may participate in oral argument only with 

the court’s permission. 

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s 

consideration of whether to grant panel rehearing or rehearing en banc, unless a 

local rule or order in a case provides otherwise. 

(2) When Permitted. The United States or its officer or agency or a state may file an 

amicus curiae brief without the consent of the parties or leave of court. Any other 

amicus curiae may file a brief only by leave of court. 

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 96

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief 

must not exceed 2,600 words. 

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or 

supporting neither party must file its brief, accompanied by a motion for filing when 

necessary, no later than 7 days after the petition is filed. An amicus curiae opposing 

the petition must file its brief, accompanied by a motion for filing when necessary, 

no later than the date set by the court for the response.

Federal Circuit Rule 29

Rule 29. Brief of an Amicus Curiae

(a) Content; Form; Copies. In addition to the contents required by Federal 

Rule of Appellate Procedure 29, the brief of an amicus curiae must include a 

certificate of interest (see Federal Circuit Rule 47.4) in front of the table of 

contents. Amicus curiae must file six paper copies of the brief within five 

business days of the clerk of court’s acceptance of the electronic version of the 

brief.

(b) List of Amicus Curiae. The clerk will maintain a list of bar associations

and other organizations to be invited to file amicus curiae briefs when the 

court directs. Bar associations and other organizations will be placed on the 

list if they request. The request must be renewed annually not later than 

October 1.

(c) Consent. If an amicus brief is filed on consent of all parties, then no motion 

for leave is required and the brief should state, pursuant to Federal Rule of 

Appellate Procedure 29(a), that all parties have consented to its filing.

Practice Notes

An amicus curiae must file an entry of appearance and a certificate of interest, if 

applicable. See Federal Circuit Rules 47.3, 47.4, and Forms 8 and 9.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 97

Federal Rule of Appellate Procedure 30

Rule 30. Appendix to the Briefs

(a) Appellant’s Responsibility.

(1) Contents of the Appendix. The appellant must prepare and file an appendix to 

the briefs containing:

(A) the relevant docket entries in the proceeding below;

(B) the relevant portions of the pleadings, charge, findings, or opinion;

(C) the judgment, order, or decision in question; and

(D) other parts of the record to which the parties wish to direct the court’s attention.

(2) Excluded Material. Memoranda of law in the district court should not be 

included in the appendix unless they have independent relevance. Parts of the 

record may be relied on by the court or the parties even though not included in the 

appendix.

(3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the 

appellant must file 10 copies of the appendix with the brief and must serve one copy 

on counsel for each party separately represented. An unrepresented party 

proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy 

must be served on counsel for each separately represented party. The court may by 

local rule or by order in a particular case require the filing or service of a different 

number.

(b) All Parties’ Responsibilities.

(1) Determining the Contents of the Appendix. The parties are encouraged to agree 

on the contents of the appendix. In the absence of an agreement, the appellant 

must, within 14 days after the record is filed, serve on the appellee a designation of 

the parts of the record the appellant intends to include in the appendix and a 

statement of the issues the appellant intends to present for review. The appellee 

may, within 14 days after receiving the designation, serve on the appellant a 

designation of additional parts to which it wishes to direct the court’s attention. The 

appellant must include the designated parts in the appendix. The parties must not 

engage in unnecessary designation of parts of the record, because the entire record 

is available to the court. This paragraph applies also to a cross-appellant and a 

cross-appellee.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 98

(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay 

the cost of the appendix. If the appellant considers parts of the record designated by 

the appellee to be unnecessary, the appellant may advise the appellee, who must 

then advance the cost of including those parts. The cost of the appendix is a taxable 

cost. But if any party causes unnecessary parts of the record to be included in the 

appendix, the court may impose the cost of those parts on that party. Each circuit 

must, by local rule, provide for sanctions against attorneys who unreasonably and 

vexatiously increase litigation costs by including unnecessary material in the 

appendix.

(c) Deferred Appendix.

(1) Deferral Until After Briefs Are Filed. The court may provide by rule for classes of 

cases or by order in a particular case that preparation of the appendix may be 

deferred until after the briefs have been filed and that the appendix may be filed 21 

days after the appellee’s brief is served. Even though the filing of the appendix may 

be deferred, Rule 30(b) applies; except that a party must designate the parts of the 

record it wants included in the appendix when it serves its brief, and need not 

include a statement of the issues presented.

(2) References to the Record.

(A) If the deferred appendix is used, the parties may cite in their briefs the 

pertinent pages of the record. When the appendix is prepared, the record pages 

cited in the briefs must be indicated by inserting record page numbers, in brackets, 

at places in the appendix where those pages of the record appear.

(B) A party who wants to refer directly to pages of the appendix may serve and file 

copies of the brief within the time required by Rule 31(a), containing appropriate 

references to pertinent pages of the record. In that event, within 14 days after the 

appendix is filed, the party must serve and file copies of the brief, containing 

references to the pages of the appendix in place of or in addition to the references to 

the pertinent pages of the record. Except for the correction of typographical errors, 

no other changes may be made to the brief.

(d) Format of the Appendix. The appendix must begin with a table of contents 

identifying the page at which each part begins. The relevant docket entries must 

follow the table of contents. Other parts of the record must follow chronologically. 

When pages from the transcript of proceedings are placed in the appendix, the 

transcript page numbers must be shown in brackets immediately before the 

included pages. Omissions in the text of papers or of the transcript must be 

indicated by asterisks. Immaterial formal matters (captions, subscriptions, 

acknowledgments, etc.) should be omitted.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 99

(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix 

may be reproduced in a separate volume, or volumes, suitably indexed. Four copies 

must be filed with the appendix, and one copy must be served on counsel for each 

separately represented party. If a transcript of a proceeding before an 

administrative agency, board, commission, or officer was used in a district-court 

action and has been designated for inclusion in the appendix, the transcript must be 

placed in the appendix as an exhibit.

(f) Appeal on the Original Record Without an Appendix. The court may, 

either by rule for all cases or classes of cases or by order in a particular case, 

dispense with the appendix and permit an appeal to proceed on the original record 

with any copies of the record, or relevant parts, that the court may order the parties 

to file.

Federal Circuit Rule 30

Rule 30. Appendix to the Briefs

(a) Purpose; Content of Appendix; Time for Filing; Number of Copies; 

Cover; Service.

(1) Purpose. The purpose of this rule is to limit the size of the appendix of 

documentary materials that is printed and filed with the court. The 

rule also authorizes a supplementary video recording media appendix 

under some circumstances.

(2) Contents; Indiscriminate Referencing to Blocks of the Record 

Prohibited.

(A) In addition to the matters required by Federal Rule of Appellate

Procedure 30(a)(1)(A),(B), and (C), the appendix must include:

(i) the entire docket sheet from the proceedings below;

(ii) in an appeal from a jury case, the judge’s charge, the 

jury’s verdict, and the jury’s responses to interrogatories;

(iii) in an appeal involving a patent, the patent in suit in its 

entirety. The patent in suit may also be included as an 

addendum to appellant’s initial brief. Any other patents 

included in an appendix must be included in their 

entirety; and

(iv) any nonprecedential opinion or order cited in accordance 

with Federal Circuit Rule 32.1(c).

(B) Parts of the record authorized by Federal Rule of Appellate 

Procedure 30(a)(1)(D) must not be included in the appendix 

unless they are actually referenced in the briefs, but the parties 

are encouraged to include in the appendix sufficient surrounding 

transcript pages to provide context for a referenced transcript 

excerpt.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 100

(C) Indiscriminate referencing in briefs to blocks of record pages or

inclusion of unnecessary pages in the appendix is prohibited.

(D) If the appellant considers that parts of the record have been 

referenced in violation of this rule, the appellant may so advise 

the appellee and the appellee must advance the costs of 

including those parts in the appendix.

(E) The following must not be included in the appendix except by 

leave of the court, and any motion for leave must state the 

number of pages requested to be included:

(i) briefs and memoranda in their entirety (except as 

otherwise provided in Federal Circuit Rule 30);

(ii) notices;

(iii) subpoenas – except where the enforcement or validity of a 

subpoena is at issue;

(iv) summonses – except in appeals from the Court of 

International Trade;

(v) motions to extend time; or

(vi) jury lists.

(F) Nothing in this Federal Circuit Rule 30 prohibits from 

designation and inclusion in an appendix:

(i) an examiner’s answer in an ex parte patent case;

(ii) a trademark examining attorney’s appeal brief in an ex 

parte trademark case; or

(iii) the briefs and memoranda in their entirety in a case 

where the only issue is the propriety of summary 

judgment.

(3) Additional Mandatory Appendix Items in Patent and 

Trademark Office Appeals. In an appeal from the Patent and 

Trademark Office, unless the parties mutually agree otherwise, the 

appendix must include:

(A) a copy of all rejected claims in an ex parte patent appeal;

(B) a copy of all counts in a patent interference appeal; or

(C) a copy of the trademark sought to be registered or cancelled and

a copy of any registration relied on to refuse or oppose 

registration or to seek cancellation of a registered mark in an ex 

parte or an inter partes trademark appeal.

(4) Time for Filing. The appellant must serve and file an appendix 

within seven days after the last reply brief is served and filed. When 

there is no cross- appeal, if the appellant does not file a reply brief, the 

appendix must be served and filed within the time for filing the reply 

brief. In a cross appeal, if the cross- appellant does not file a reply 

brief, the appendix must be served and filed within 7 days after the 

time for filing the cross- appellant’s reply brief has expired.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 101

(5) Number of Copies. Six paper copies of the appendix must be filed 

with the court.

(6) Multi-Volume Appendix: Covers and Page Numbers. A multi-volume 

appendix must have a volume number in roman numerals and the 

pages included in the volume listed at the top of the cover of each 

volume (e.g., Volume II, Pages 542 to 813).

(7) Service. One paper copy must be served on, or by, each pro se party. 

In a case in which all parties are represented by counsel, service of 

nonconfidential material is made through CM/ECF and no paper 

copies are required to be served on the parties. See Rule 30(h)(3) for 

provisions related to service of confidential appendixes.

(8) Consequence of Failing to File an Appendix. If the appellant fails 

to file an appendix, the clerk of court is authorized to dismiss the case.

(b) Determination of Contents of Appendix; Designation of Materials; 

Extension of Time.

(1) The parties are encouraged to agree on the contents of an appendix 

that will comply with this Federal Circuit Rule 30.

(2) In the absence of an agreement, the appellant must, within 14 days 

after docketing in an appeal from a court or after service of the 

certified list or index in a petition for review or appeal from an agency, 

serve on the appellee or cross- appellant a designation of materials 

from which the appendix will be prepared and a statement of the 

issues to be presented for review. The appellee or cross-appellant may, 

within 14 days after receiving the designation, serve on the appellant a 

counter-designation of additional parts to be included in the appendix.

(3) A designation or counter-designation must not be filed with the court.

(4) Table of Page Numbers; Physical Compilation.

(A) Within 14 days after the parties have designated the material 

for the appendix, the appellant must assign consecutive page 

numbers to the designated material and serve on all parties a 

table reflecting the page numbers of each item designated.

(B) If not prohibited in an outstanding protective order, instead of 

the table the appellant may—at the appellant’s option—serve on 

the parties one copy of a physical compilation of the designated 

material with the assigned page numbers shown. This copy may 

be in micrographic format.

(C) The first page numbers in the designated material must be 

assigned to the judgment or order appealed from and any 

opinion, memorandum, or findings and conclusions supporting 

it.

(D) The table of page numbers or the physical compilation of the 

designated material, whichever is used, must not be filed with 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 102

the court. If all designated material comprises no more than 100 

pages, Federal Circuit Rule 30(d) applies.

(E) The pages of the appendix or supplemental appendix shall be 

numbered by the automated Bates numbering feature of the 

software used to convert the appendix to a .pdf document and 

must be in the format “Appx” or “SAppx” followed by the page 

number(s); e.g., “Appx134,” “Appx3-17,” or “SAppx1385.”

(5) Extension of Time Limits. The time limits for designating, counterdesignating, and compiling the table may be extended by agreement of 

the parties without seeking leave of the court, as long as an extension 

of the time is not required for filing appellant’s brief. But if a 

transcript of the proceedings is required before the material can be 

designated and if the transcript has been ordered but not completed 

within the time prescribed by this rule, the appellant must move for an 

extension of time within which to designate the material. An affidavit 

explaining in detail what has been done to expedite transcription of the 

trial proceedings must be attached to the motion.

(6) Preparation of Appendix. The appellant must prepare the appendix 

to be filed with the court from the designated material by selecting 

from that material only items required by these rules and pages 

specifically referred to in the briefs of the parties. Pages of the 

designated material not referenced in the briefs – other than items 

required by these rules – must be omitted from the appendix filed with 

the court.

(c) Format of Appendix; Pagination.

(1) Arrangement of Appendix. Federal Rule of Appellate Procedure 

30(d) governs the arrangement of the appendix, except the judgment or 

order appealed from and any opinion, memorandum, or findings and 

conclusions supporting it must be placed first in the appendix. (See 

Federal Circuit Rule 28(a)(11) for a duplicative requirement of the 

appellant’s or petitioner’s initial brief.)

(2) Pagination. The page numbers used in the appendix must be the page 

numbers assigned by the appellant or petitioner to the designated 

material in accordance with Federal Circuit Rule 30(b). The page 

number must appear centered in the bottom margin of each page in 

the appendix. Other pagination marks must be redacted if necessary to 

avoid confusion. The materials in the appendix must be in numerical 

order according to the page numbers the appellant assigned to the 

designated materials. Omission of pages need not be noted, e.g., page 

102 may be followed by page 230 without stating that pages 103-229 

are not reproduced in the appendix. References in the briefs must be 

only to the page numbers of the appendix.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 103

(3) Printing. Pages in an appendix – even when filing a combined brief 

and appendix – may be printed on both sides. To the extent possible, 

the court encourages this.

(d) Combined Brief and Appendix.

(1) When a brief and appendix are combined, the cover must so indicate.

(2) If all designated material comprises no more than 100 pages, all of it 

may be included in the appendix, in which case it may be bound 

together with the appellant’s or petitioner’s initial brief and the brief 

must be filed as provided in Federal Circuit Rule 31(a).

(e) Appendix in a Pro Se Case. If an appellant appearing pro se files an 

inadequate appendix, the appellee may file with its brief an appendix 

containing material permitted by Federal Circuit Rule 30(a)(2).

(f) Separate or Supplemental Appendix. If the appellant has failed to 

participate in determining the contents of an appendix or has filed an 

inadequate appendix, the United States or an officer or agency of the United 

States, as the appellee, may file a separate or supplemental appendix 

containing material permitted by Federal Circuit Rule 30(a)(2). The cover 

must be red. If the separate or supplemental appendix contains no more than 

100 pages, it may be bound together with the appellee’s initial brief. Except 

as provided in Federal Circuit Rule 30(e) and (f), no party may file a separate 

or supplemental appendix without leave of the court.

(g) Costs. The costs of the table of page numbers or the copy of the physical 

compilation of the designated material authorized in Federal Circuit Rule 

30(b)(4) and of the appendix, including the separate segments authorized in 

Federal Circuit Rule 30(h), may be assessed as provided in Federal Rule of 

Appellate Procedure 30(b)(2).

(h) Appendices Containing Material Subject to a Protective Order.

(1) (A) Confidentiality. Material that retains its status as covered by a 

protective order may be marked confidential in appendices (and 

addenda to briefs). Material that has lost its coverage under a 

protective order under Federal Circuit Rule 11(c) or 17(e)—based on 

Federal Circuit Rules 30(h)(1)(B), 27(m)(1), or 28(d)(1)—may not be 

marked confidential in appendices (or addenda).

(B) Agreement by Parties to Modify a Protective Order; 

Certificate of Compliance. If any portion of the record in the trial 

court or an agency is subject to a protective order and a notice of 

appeal has been filed, each party must promptly review the record to 

determine whether protected portions need to remain protected on 

appeal. If a party determines that some portions no longer need to be 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 104

protected, that party must seek an agreement with the other party. 

Any agreement that is reached must be promptly presented to the trial 

court or the agency, which may issue an appropriate order. Whether or 

not an agreement is reached, each party must file a certificate of 

compliance no later than the time for filing the joint appendix stating 

it complied with this rule. This Federal Circuit Rule 30(h)(1)(B) does 

not apply in a case arising under 19 U.S.C. § 1516a, or to third-party 

information marked as confidential.

(C) Motion to Modify the Protective Order. A party may move at 

any time in this court to modify a protective order to remove protection 

from some material or to include another person within its terms. This 

court may decide the motion or may remand the case to the trial court. 

This court, sua sponte, may direct the parties to show cause why a 

protective order should not be modified.

(2) Two Versions of Appendices. If a party refers in appendices to 

material subject to confidentiality mandated by statute or to a judicial 

or administrative protective order, consistent with Federal Circuit 

Rule 30(h)(1), two versions of appendices must be filed.

(A) Confidential version; labeling; number of copies. One set of 

appendices, consisting of six paper copies of the complete 

appendix, must be labeled “confidential” and filed with the 

court. If confidentiality will end on a date certain or upon the 

happening of an event, this must be stated on the cover, e.g., 

“CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL 

DURING JUDICIAL REVIEW.” The confidential appendix must 

include at the beginning (i.e., in front of the judgment or order 

appealed from) pertinent excerpts of any statutes imposing 

confidentiality or the entirety of any judicial or administrative 

protective order. Each page containing confidential material 

must enclose this material in brackets or indicate this material 

by highlighting.

(B) Nonconfidential version; labeling. The second version of 

appendices from which confidential matter has been deleted, 

must be labeled “nonconfidential” and filed with the court. Each 

page from which material subject to a protective order has been 

deleted must bear a legend so stating. The table of contents of a 

nonconfidential appendix must describe the general nature of 

the confidential material that has been deleted.

(3) Service. In a pro se case, each party to the appeal must be served one 

copy of the nonconfidential appendices and, when permitted by the 

applicable protective order, one copy of the confidential appendices. In 

a case in which all parties are represented by counsel, service is made 

through CM/ECF of a nonconfidential appendix; one paper copy of the 

confidential version must be served.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 105

(4) Availability to the Public. The confidential appendices will be made 

available only to authorized court personnel and must not be made 

available to the public. After 5 years following the end of all 

proceedings in the court, the parties may be directed to show cause 

why confidential appendices (except those protected by statute) should 

not be made available to the public.

(i) Appendix to Informal Brief. The appendix to an informal brief must 

contain the judgment and opinion of the trial court or the final order of an 

administrative agency. The initial decision of the administrative judge must 

also be included in the appendix in a Merit Systems Protection Board case.

(j) Supplementary Video Recording Media Appendix. When the record on 

appeal or review has been perpetuated in whole or in part on video recording 

media in accordance with the rules of the court or agency, those video 

recording media portions of the record that would properly be included in the 

appendix if they were in documentary form may be included in a 

supplementary video recording media appendix. Four copies must be filed.

Practice Notes

FILING PAGE PROOF COPIES PROHIBITED; NOTICE OF NEW

REFERENCES IN CROSS-APPELLANT’S REPLY BRIEF. Preparing the 

appendix requires extensive cooperation between the parties. Federal Circuit Rule 

30, unlike Federal Rule of Appellate Procedure 30, does not permit filing page proof 

copies of briefs. An appendix prepared without careful attention to Federal Circuit 

Rule 30 may be rejected when submitted and may result in dismissal. To expedite 

preparing the joint appendix, a cross-appellant will notify the appellant promptly on 

being served appellant’s reply brief whether the cross-appellant will file a reply 

brief and, if so, whether it will refer to pages not referenced in the briefs already 

filed, listing any such pages.

DISPENSING WITH THE APPENDIX. A motion to dispense with the appendix 

will be granted only in extraordinary circumstances.

BRIEFS AND MEMORANDA. Briefs and memoranda presented to the trial court 

or agency may not ordinarily be included in their entirety in the appendix, but 

individual pages may be included when it is necessary to refer to them in the 

appellate briefs.

TABLE OF CONTENTS OR INDEX. Parties are encouraged to include a table of 

contents or index in each volume of the appendix.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 106

Federal Rule of Appellate Procedure 31

Rule 31. Serving and Filing Briefs

(a) Time to Serve and File a Brief.

(1) The appellant must serve and file a brief within 40 days after the record is filed. 

The appellee must serve and file a brief within 30 days after the appellant’s brief is 

served. The appellant may serve and file a reply brief within 14 days after service of 

the appellee’s brief but a reply brief must be filed at least 7 days before argument, 

unless the court, for good cause, allows a later filing.

(2) A court of appeals that routinely considers cases on the merits promptly after 

the briefs are filed may shorten the time to serve and file briefs, either by local rule 

or by order in a particular case.

(b) Number of Copies. Twenty-five copies of each brief must be filed with the clerk 

and 2 copies must be served on each unrepresented party and on counsel for each 

separately represented party. An unrepresented party proceeding in forma pauperis 

must file 4 legible copies with the clerk, and one copy must be served on each 

unrepresented party and on counsel for each separately represented party. The 

court may by local rule or by order in a particular case require the filing or service 

of a different number.

(c) Consequence of Failure to File. If an appellant fails to file a brief within the 

time provided by this rule, or within an extended time, an appellee may move to 

dismiss the appeal. An appellee who fails to file a brief will not be heard at oral 

argument unless the court grants permission.

Federal Circuit Rule 31

Rule 31. Serving and Filing Briefs

(a) Time for Service and Filing.

(1) Brief of Appellant or Petitioner.

(A) In an appeal from a court, the appellant must serve and file its 

initial brief within 60 days after docketing. Docketing a crossappeal does not affect the time for serving and filing the 

appellant’s initial brief.

(B) In an appeal from an agency, the petitioner or appellant must 

serve and file its initial brief within 60 days after the certified 

list or index is served pursuant to Federal Circuit Rule 17(c). 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 107

(C) When two or more appellants or petitioners choose to proceed by 

filing a single brief, the initial brief must be served and filed no 

later than the latest date on which the initial brief of any of 

these appellants or petitioners is due.

(2) Brief of Appellee or Cross-Appellant. The appellee or crossappellant must serve and file its initial brief within 40 days after 

appellant’s brief is served.

(3) Cross-Appeal. In a cross-appeal:

(A) the appellant must serve and file its reply brief within 40 days 

after cross-appellant’s brief is served; and

(B) the cross-appellant must serve and file its reply brief within 14 

days after appellant’s reply brief is served.

(4) Single Brief Responding to Multiple Parties. A single brief that 

responds to the briefs of multiple parties must be served and filed 

within the time prescribed after service of the last of these briefs or, if 

no such brief is filed, after the time expires for filing the last of these 

briefs. 

(b) Number of Copies. Except for briefs containing material subject to a 

protective order (see Federal Circuit Rule 28(d)), six copies of each brief must 

be filed with the court. Counsel will be directed by the clerk’s office to file the 

paper copies after the copy submitted through CM/ECF is accepted for filing. 

If the brief is filed by a pro se party, then three paper copies are required to 

be filed with the court.

(c) Certain Motions Suspend the Due Date of the Next Brief. When a 

motion is filed that, if granted, would terminate the appeal, the time to serve 

and file the next brief due is suspended. If the motion is denied, the next brief 

becomes due, unless the court orders otherwise, within the balance of the 

time remaining under this rule when the motion was filed, but not fewer than 

14 days from the date of the order.

(d) Consequence of Failure to File a Brief by Appellant or Petitioner. If 

the appellant fails to file an initial brief, the clerk of court is authorized to 

dismiss the case.

(e) Informal Brief; Time for Filing; Number of Copies.

(1) Brief of Appellant or Petitioner.

(A) In an appeal from a court, a pro se appellant filing an informal 

brief must serve and file the brief within 21 days after the 

appeal is docketed.

(B) In a petition for review or an appeal from an agency, a pro se 

petitioner or appellant filing an informal brief must serve and 

file the brief within 21 days after the certified list or index is 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 108

served pursuant to Federal Circuit Rule 17(c) or within 21 days 

after docketing, whichever is later.

(2) Brief of Appellee or Respondent. An appellee or respondent filing 

an informal brief must serve and file the brief within 21 days after 

petitioner’s or appellant’s brief is served or within 21 days after the 

certified list or index is served pursuant to Federal Circuit Rule 17(c), 

whichever is later.

(3) Reply Brief. When an informal brief is used, any reply brief must be 

served within 14 days after respondent’s or appellee’s brief is served.

(4) Number of Copies. Three paper copies of each informal brief must be 

filed with the court and one copy must be served on each party.

Practice Notes

CONSOLIDATED APPEALS. In consolidated appeals in which more than one 

appellant filed a notice of appeal, the opening brief of all appellants will be 

governed by the docketing date of the last filed appeal.

CONSOLIDATED CROSS-APPEALS. In consolidated cross-appeals, the briefing 

schedule is computed according to the docketing date of the first appeal.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 109

Federal Rule of Appellate Procedure 32

Rule 32. Form of Briefs, Appendices, and Other Papers

(a) Form of a Brief.

(1) Reproduction.

(A) A brief may be reproduced by any process that yields a clear black image on 

light paper. The paper must be opaque and unglazed. Only one side of the paper 

may be used.

(B) Text must be reproduced with a clarity that equals or exceeds the output of a 

laser printer.

(C) Photographs, illustrations, and tables may be reproduced by any method that 

results in a good copy of the original; a glossy finish is acceptable if the original is 

glossy.

(2) Cover. Except for filings by unrepresented parties, the cover of the appellant’s 

brief must be blue; the appellee’s, red; an intervenor’s or amicus curiae’s, green; any 

reply brief, gray; and any supplemental brief, tan. The front cover of a brief must 

contain:

(A) the number of the case centered at the top;

(B) the name of the court;

(C) the title of the case (see Rule 12(a));

(D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of 

the court, agency, or board below;

(E) the title of the brief, identifying the party or parties for whom the brief is filed; 

and

(F) the name, office address, and telephone number of counsel representing the 

party for whom the brief is filed.

(3) Binding. The brief must be bound in any manner that is secure, does not obscure 

the text, and permits the brief to lie reasonably flat when open.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 110

(4) Paper Size, Line Spacing, and Margins. The brief must be on 8 1/2 by 11 inch 

paper. The text must be double-spaced, but quotations more than two lines long 

may be indented and single-spaced. Headings and footnotes may be single-spaced. 

Margins must be at least one inch on all four sides. Page numbers may be placed in 

the margins, but no text may appear there.

(5) Typeface. Either a proportionally spaced or a monospaced face may be used.

(A) A proportionally spaced face must include serifs, but sans-serif type may be used 

in headings and captions. A proportionally spaced face must be 14-point or larger.

(B) A monospaced face may not contain more than 10 1/2 characters per inch.

(6) Type Styles. A brief must be set in a plain, roman style, although italics or 

boldface may be used for emphasis. Case names must be italicized or underlined.

(7) Length.

(A) Page Limitation. A principal brief may not exceed 30 pages, or a reply brief 15 

pages, unless it complies with Rule 32(a)(7)(B). 

(B) Type-Volume Limitation. 

(i) A principal brief is acceptable if it: 

• contains no more than 13,000 words; or 

• uses a monospaced face and contains no more than 1,300 lines of text. 

• (ii) A reply brief is acceptable if it contains no more than half of the type 

volume specified in Rule 32(a)(7)(B)(i).pages, unless it complies with Rule 

32(a)(7)(B) and (C).

(C) Certificate of Compliance.

(i) A brief submitted under Rules 28.1(e)(2) or 32(a)(7)(B) must include a certificate 

by the attorney, or an unrepresented party, that the brief complies with the typevolume limitation. The person preparing the certificate may rely on the word or line 

count of the word-processing system used to prepare the brief. The certificate must 

state either:

• the number of words in the brief; or
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 111

• the number of lines of monospaced type in the brief.

(ii) Form 6 in the Appendix of Forms is a suggested form of a certificate of 

compliance. Use of Form 6 must be regarded as sufficient to meet the requirements 

of Rules 28.1(e)(3) and 32(g)(1).

(b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), 

and (4), with the following exceptions:

(1) The cover of a separately bound appendix must be white.

(2) An appendix may include a legible photocopy of any document found in the 

record or of a printed judicial or agency decision.

(3) When necessary to facilitate inclusion of odd-sized documents such as technical 

drawings, an appendix may be a size other than 8 1/2 by 11 inches, and need not lie 

reasonably flat when opened.

(c) Form of Other Papers.

(1) Motion. The form of a motion is governed by Rule 27(d).

(2) Other Papers. Any other paper, including a petition for panel rehearing and a 

petition for hearing or rehearing en banc, and any response to such a petition, must 

be reproduced in the manner prescribed by Rule 32(a), with the following 

exceptions:

(A) A cover is not necessary if the caption and signature page of the paper together 

contain the information required by Rule 32(a)(2). If a cover is used, it must be 

white.

(B) Rule 32(a)(7) does not apply.

(d) Signature. Every brief, motion, or other paper filed with the court must be 

signed by the party filing the paper or, if the party is represented, by one of the 

party’s attorneys.

(e) Local Variation. Every court of appeals must accept documents that comply 

with the form requirements of this rule and the length limits set by these rules. By 

local rule or order in a particular case, a court of appeals may accept documents 

that do not meet all the form requirements of this rule or the length limits set by 

these rules. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 112

(f) Items Excluded from Length. In computing any length limit, headings, 

footnotes, and quotations count toward the limit but the following items do not: 

• the cover page; 

• a corporate disclosure statement; 

• a table of contents; 

• a table of citations; 

• a statement regarding oral argument; 

• an addendum containing statutes, rules, or regulations; 

• certificates of counsel; 

• the signature block; 

• the proof of service; and 

• any item specifically excluded by these rules or by local rule. 

(g) Certificate of Compliance. 

(1) Briefs and Papers That Require a Certificate. A brief submitted under Rules 

28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 

21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate 

by the attorney, or an unrepresented party, that the document complies with the 

type-volume limitation. The person preparing the certificate may rely on the word 

or line count of the word-processing system used to prepare the document. The 

certificate must state the number of words—or the number of lines of monospaced 

type—in the document. 

(2) Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a 

certificate of compliance. with the form requirements of this rule. By local rule or 

order in a particular case a court of appeals may accept documents that do not meet 

all of the form requirements of this rule.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 113

Federal Circuit Rule 32

Rule 32. Form of Briefs, Appendices, and Other Papers; Length

(a) Nonconforming Brief. The clerk of court may refuse to file any brief that 

has not been prepared in conformity with Federal Rule of Appellate

Procedure 32, except that an appellant’s and appellee’s opening brief is 

acceptable if it contains no more than 14,000 words or uses a monospaced 

face and contains no more than 1,300 lines of text, and an appellant’s reply 

brief is acceptable if it contains no more than 7,000 words.

(b) Exclusion from Type-Volume Limitation. In addition to the items listed 

in Federal Rule of Appellate Procedure 32(f) that are not counted in the typevolume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B), the 

following items do not count toward that limitation:

(1) the certificate of interest;

(2) the statement of related cases; and

(3) the addendum in an initial brief of an appellant or petitioner.

(c) Informal Brief. An informal brief must be prepared on a form provided by 

the clerk of court. The form contains instructions for preparing and filing an 

informal brief. An informal brief should be typewritten, but block printing or, 

as a last resort, legible handwriting is permitted. An informal brief including 

continuation pages must not exceed 30 pages of typewritten double-spaced 

text or its equivalent.

(d) Form of Appendix. Pages in an appendix — even when filing a combined 

brief and appendix — may be printed on both sides. To the extent possible, 

the court encourages this.

(e) Filing Corresponding Brief on Compact Disc. In addition to the filing of 

a paper brief, a party may file a corresponding brief contained on a compact 

disc-read only memory (CD-ROM), subject to the following requirements.

(1) Consent; Motion. Within 14 days of docketing an appeal, a party 

intending to file a corresponding brief must ascertain whether any 

other party consents or objects. If the other parties consent, the filing 

party must promptly file with the court a notice of intent to file a 

corresponding brief. If any other party does not consent, the party 

seeking to file a corresponding brief must promptly file a motion for 

leave with the court. If no response is filed within seven days, the clerk 

will grant the motion for leave to file a corresponding brief. The court 

will deny a motion for leave to file a corresponding brief only if an 

opposing party demonstrates substantial prejudice.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 114

(2) Content. A corresponding brief must be identical in content to the 

paper brief. A corresponding brief may provide hypertext links to the 

complete versions of material that was part of the record below. 

Hypertext links to other material must be confined to materials such 

as cases, statutes, treatises, law review articles, and similar 

authorities. A corresponding brief must be self-contained and static.

(3) Statement Concerning Instructions and Viruses. A corresponding 

brief must be accompanied by a statement, preferably within or 

attached to the packaging, that:

(A) sets forth the instructions for viewing the brief and the 

minimum equipment required for viewing; and

(B) verifies the absence of computer viruses and lists the software 

used to ensure that the brief is virus-free.

(4) Time for Filing. A corresponding brief, if any, must be filed no later 

than the time for filing the joint appendix.

(5) Filing and Service. Except for the time of filing, a corresponding 

brief must be filed and served in the same manner and the same 

number of copies as the paper brief.

(6) Single CD-ROM. All parties to an appeal who intend to file a 

corresponding CD-ROM brief are encouraged to cooperate in placing all 

such briefs on a single CD-ROM.

(7) Table of Contents. Parties filing a corresponding brief are 

encouraged to include a table of contents with links to all of the items 

required in a joint appendix under Federal Rule of Appellate Procedure 

30 and Federal Circuit Rule 30 and to all other parts of the record 

contained on the corresponding brief.

(8) Labeling. A label with the caption of the case, the number of the case, 

and the types of briefs included on the CD-ROM must be included on 

both the packaging and the CD-ROM.

Practice Notes

PREFERRED COVER. In addition to the requirements of Federal Rule of 

Appellate Procedure 32(a)(2)(D), the court encourages inclusion on the cover of the 

name of the judge, when applicable, from whose judgment appeal is taken.

PREFERRED BINDING. The court prefers that a brief be securely bound along 

the left margin to ensure that the bound copy will not loosen or fall apart; that a 

brief lie flat when open; that a ring- type binding, plastic or metal, or a binding that 

protrudes from the front and back covers not be used; and that any externally 

positioned staple be covered with tape.

PRINT SIZE OF BRIEFS. Counsel should avoid photo-reproduction that reduces 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 115

the print size of the original smaller than the size required by Federal Rule of 

Appellate Procedure 32.

FOOTNOTES. The typeface requirements of Federal Rule of Appellate Procedure 

32(a)(5) apply to all text in the brief, including footnotes.

BRIEF COVERS IN CROSS-APPEALS. The color of the cover of the crossappellant’s principal brief is red. The color of the covers of appellant’s reply brief is 

yellow and cross-appellant’s reply brief is gray.

COPIES OF PATENT DOCUMENTS. Oversize patent documents reproduced in 

a brief or appendix should be photo-reduced to 8 1/2 by 11 inches if readability can 

be maintained; otherwise, they should be folded and bound so they do not protrude 

from the covers of the brief or appendix.

ERRATA; CORRECTIONS TO BE MADE BY COUNSEL OR A PARTY. A 

brief may not be corrected merely by appending an errata sheet. Corrections, which 

must be limited to nonsubstantive matters, must be made by counsel or a party 

using suitable means directly in the paper briefs in the clerk’s office. As a last 

resort, briefs may be replaced. Corrected or replacement briefs must also be 

submitted through CM/ECF. The time to file a brief in response to a corrected or 

replaced brief runs from service of the original brief. A corrected or replacement 

brief should so indicate on the cover. Counsel or a party must file a “Notice of 

Correction” with the court through CM/ECF and serve any unrepresented party 

with a paper copy, specifically delineating each correction. Any pro se party filing a 

corrected brief must file and original and three paper copies of the corrected brief. 

Any individual making corrections to the paper briefs in the clerk’s office must 

provide written authorization and present proper photo identification.

TESTIMONY IN THE APPENDIX. To reduce bulk in the appendix, the use of 

condensed, columnar transcripts of testimony is encouraged.

CERTIFICATE OF COMPLIANCE. Federal Rule of Appellate Procedure 32(g)

states that the use of Federal Rules of Appellate Procedure Form 6 is sufficient to 

satisfy the requirements of Rule 32(g). That form is reproduced as Federal Circuit 

Form 19. Parties are reminded that some software programs do not automatically 

include footnotes. When certain text is marked for word count or line count 

purposes, a party may need to separately mark text in footnotes and include those 

words or lines in the certified count. It is the responsibility of the filing party to 

ensure that its certificate of compliance is accurate.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 116

Federal Rule of Appellate Procedure 32.1

Rule 32.1 Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal 

judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not 

precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or 

other written disposition that is not available in a publicly accessible electronic 

database, the party must file and serve a copy of that opinion, order, judgment, or 

disposition with the brief or other paper in which it is cited.

Federal Circuit Rule 32.1

Rule 32.1. Citing Judicial Dispositions

(a) Disposition of Appeal, Motion, or Petition. Disposition of an appeal may 

be announced in an opinion; disposition of a motion or petition may be 

announced in an order. An appeal may also be disposed of in a judgment of 

affirmance without opinion pursuant to Federal Circuit Rule 36. A 

nonprecedential disposition shall bear a legend designating it as 

nonprecedential. A precedential disposition shall bear no legend.

(b) Nonprecedential Opinion or Order. An opinion or order which is 

designated as nonprecedential is one determined by the panel issuing it as 

not adding significantly to the body of law.

(c) Parties’ Citation of Nonprecedential Dispositions. Parties are not 

prohibited or restricted from citing nonprecedential dispositions issued after 

January 1, 2007. This rule does not preclude assertion of claim preclusion, 

issue preclusion, judicial estoppel, law of the case, and the like based on a 

nonprecedential disposition issued before that date.

(d) Court’s Consideration of Nonprecedential Dispositions. The court may 

refer to a nonprecedential disposition in an opinion or order and may look to 

a nonprecedential disposition for guidance or persuasive reasoning, but will 

not give one of its own nonprecedential dispositions the effect of binding 

precedent. The court will not consider nonprecedential dispositions of another 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 117

court as binding precedent of that court unless the rules of that court so 

provide.

(e) Request to Make an Opinion or Order Precedential; Time for Filing. 

Within 60 days after any nonprecedential opinion or order is issued, any 

person may request, with accompanying reasons, that the opinion or order be 

reissued as precedential. An original and six paper copies of the request must 

be filed with the court unless the request is made by an electronic filer. All 

electronic filers must file documents through CM/ECF in accordance with 

Federal Circuit Rule 25(a)(2). The request will be considered by the panel 

that rendered the disposition. The requester must notify the court and the 

parties of any case that person knows to be pending that would be 

determined or affected by reissuance as precedential. Parties to pending 

cases who have a stake in the outcome of a decision to make precedential 

must be given an opportunity to respond. If the request is granted, the 

opinion or order may be revised as appropriate.

(f) Public Records. All dispositions by the court in any form will be in writing 

and are public records.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 118

Practice Notes

FILING AN OPINION. An opinion is issued when ready. No particular day of the 

week is considered a “down day.” An opinion is not issued on a holiday, as defined in 

Federal Rule of Appellate Procedure 26 and Federal Circuit Rule 26. The judgment 

is entered on the day the opinion is filed with the clerk of court and transmitted to 

the parties.

AVAILABILITY OF AN OPINION. The court’s precedential and nonprecedential 

opinions are available in a variety of commercially available print and electronic 

media.

SUBSCRIPTIONS. Subscriptions to opinions are not available from the court, but 

are available from several commercial sources.

INFORMATION ABOUT AN OPINION. Information about decisions rendered, 

opinions issued, and actions taken on petitions for rehearing is posted daily on the 

court’s website, www.cafc.uscourts.gov. The court’s opinions, rules, and other 

information are also available on the Federal Circuit web site.

REQUEST TO MAKE AN OPINION OR ORDER PRECEDENTIAL. It is 

improper to refer in a brief to a request to make an opinion or order precedential 

before the request has been acted on. The opinion or order that is subject to the 

request remains nonprecedential unless and until the court grants the request.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 119

Federal Rule of Appellate Procedure 33

Rule 33. Appeal Conferences

The court may direct the attorneys—and, when appropriate, the parties—to 

participate in one or more conferences to address any matter that may aid in 

disposing of the proceedings, including simplifying the issues and discussing 

settlement. A judge or other person designated by the court may preside over the 

conference, which may be conducted in person or by telephone. Before a settlement 

conference, the attorneys must consult with their clients and obtain as much 

authority as feasible to settle the case. The court may, as a result of the conference, 

enter an order controlling the course of the proceedings or implementing any 

settlement agreement.

Federal Circuit Rule 33

Rule 33. Appeal Conferences

(a) Settlement Discussion; Joint Statement of Compliance or Agreement 

to Dismiss.

(1) When all the parties are represented by counsel, within 7 days after 

the first two briefs in an appeal or the first three briefs in a crossappeal are served and filed, the parties through counsel must discuss 

settlement in appeals under 28 U.S.C. §§ 1292(c)(1)-(2); 1295(a)(1); 

1295(a)(4)(A) [with respect to patent interferences only]; 1295(a)(4)(B)

[with respect to inter partes proceedings only]; 1295(a)(4)(C) [with 

respect to civil actions under 35 U.S.C. § 146 only]; and 1295(a)(6).

(2) No later than the time for filing a separate appendix under Federal 

Circuit Rule 30(a)(4), the parties must file one copy of either of the 

following (select only one):

(A) a joint statement of compliance with this rule indicating that 

settlement discussions have been conducted; or

(B) an agreement that the proceeding be dismissed under Federal

Rule of Appellate Procedure 42(b).

(b) Other Settlement Discussions. This rule does not preclude the parties 

from discussing settlement or agreeing to dismiss the proceedings at other 

times, including after oral argument but before decision.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 120

Federal Circuit Rule 33.1

Rule 33.1. Mediation Guidelines

The court may adopt mediation guidelines with respect to mediation of the cases 

pending before the court. These guidelines shall be binding on the parties.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 121

Federal Rule of Appellate Procedure 34

Rule 34. Oral Argument

(a) In General.

(1) Party’s Statement. Any party may file, or a court may require by local rule, a 

statement explaining why oral argument should, or need not, be permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of three 

judges who have examined the briefs and record unanimously agrees that oral 

argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, 

and the decisional process would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement. The clerk must advise all parties 

whether oral argument will be scheduled, and, if so, the date, time, and place for it, 

and the time allowed for each side. A motion to postpone the argument or to allow 

longer argument must be filed reasonably in advance of the hearing date.

(c) Order and Contents of Argument. The appellant opens and concludes the 

argument. Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b)

determines which party is the appellant and which is the appellee for purposes of 

oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal 

must be argued when the initial appeal is argued. Separate parties should avoid 

duplicative argument.

(e) Nonappearance of a Party. If the appellee fails to appear for argument, the 

court must hear appellant’s argument. If the appellant fails to appear for argument, 

the court may hear the appellee’s argument. If neither party appears, the case will 

be decided on the briefs, unless the court orders otherwise.

(f) Submission on Briefs. The parties may agree to submit a case for decision on 

the briefs, but the court may direct that the case be argued.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 122

(g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use 

physical exhibits other than documents at the argument must arrange to place 

them in the courtroom on the day of the argument before the court convenes. After 

the argument, counsel must remove the exhibits from the courtroom, unless the 

court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel 

does not reclaim them within a reasonable time after the clerk gives notice to 

remove them.

Federal Circuit Rule 34

Rule 34. Oral Argument

(a) Reply Brief Instead of Oral Argument. If an appeal is not called for oral 

argument and the appellant declined to file a reply brief in anticipation of 

replying during oral argument, the appellant may file a reply brief within 14 

days after the notice that the appeal will be submitted on the briefs.

(b) Time Allowed. The time allowed each side for oral argument will be 

determined by the court. The clerk of court will advise counsel of the time 

allotted. A party is not obliged to use all the time allowed. The court may 

terminate the argument if it deems further argument unnecessary.

(c) Visual Aids.

(1) Visual Aids Used at a Trial or Administrative Hearing; Notice. 

If counsel intends to use at oral argument a visual aid used at a trial or 

administrative hearing, counsel must advise the clerk through 

CM/ECF no later than 14 days before argument of the proposed visual 

aid.

(2) Visual Aids Not Used at a Trial or Administrative Hearing; 

Notice. If counsel intends to use at oral argument a visual aid that 

was not used at a trial or administrative hearing, counsel must give 

notice to opposing counsel and notify the clerk of court by letter 

through CM/ECF no later than 21 days before the oral argument.

(3) Objection to the Use of Visual Aids. An objection to the proposed 

use of a visual aid at oral argument must be submitted through 

CM/ECF as a letter and filed no later than 7 days before the oral 

argument. If a party objects, the parties’ submissions will be treated as 

a motion and response and will be referred to the panel.

(4) Scope. This rule does not preclude use of a chalkboard or equivalent 

during oral argument.

(5) Disposition. The clerk of court may dispose of visual aids not removed 

by the parties.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 123

Practice Notes

COURT SESSIONS; HEARING DATE. Sessions of the court will be held as 

announced by the court. Sessions are held regularly in Washington, DC, but the 

court may sit elsewhere. Appeals are usually calendared for oral argument or 

submission without argument within 2 months after the briefs and joint appendix 

are filed. Counsel are advised of the firm date of hearing approximately 30 days 

before the session. Once scheduled, a case will not be postponed except on motion 

showing compelling reasons. The clerk’s office will issue a Notice of Docket 

Activity (NDA) when a case is fully briefed. Counsel should advise the clerk of court 

in writing within 7 days of such NDA of scheduling conflicts for the next three court 

weeks, or thereafter as soon as such conflicts are known, and should not wait until 

an actual conflict arises. Counsel requiring a courtroom accessible to the disabled, if 

oral argument is scheduled, should notify the clerk of court of this requirement 

when counsel files the entry of appearance. Counsel may elect to submit on the 

briefs to avoid delay in disposition or for any other reason.

ORAL ARGUMENT. Counsel must report to the clerk’s office at least 30 minutes 

before the scheduled session and before proceeding to the courtroom. The members 

of the panel will have read the briefs before oral argument. Counsel should, 

therefore, emphasize the dispositive issue or issues. Time allotted for oral argument 

is ordinarily 15 minutes per side (not per party or attorney), although the court may 

vary this depending on the nature of the case. The court may extend the allotted 

time during the argument, or it may terminate the argument, if it deems it 

appropriate.

JUSTIFICATION FOR CLAIM OF CONFIDENTIALITY. Unnecessarily 

designating material in the briefs and appendix as confidential may hinder the 

court’s preparation and issuance of opinions. Counsel must be prepared to justify at 

oral argument any claim of confidentiality.

CONDUCT OF ORAL ARGUMENT. Guidelines for the conduct of oral argument 

are available on the court’s website and should be viewed once a case is assigned for 

argument. 

COPIES OF RECORDINGS AVAILABLE. Oral arguments are recorded for the 

convenience of the court. Recordings are available on the court’s website, 

www.cafc.uscourts.gov, free of charge.

OPEN TO PUBLIC. Unless held in camera, oral arguments are open to the public. 

Those in attendance whose attire or behavior reflects adversely on the dignity of the 

proceedings will be asked to leave.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 124

ORAL ARGUMENT ON MOTIONS. Oral argument is ordinarily not granted on 

motions. See Federal Rule of Appellate Procedure 27(e).
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 125

Federal Rule of Appellate Procedure 35

Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the 

circuit judges who are in regular active service and who are not disqualified may 

order that an appeal or other proceeding be heard or reheard by the court of appeals 

en banc. An en banc hearing or rehearing is not favored and ordinarily will not be 

ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s 

decisions; or

(2) the proceeding involves a question of exceptional importance.

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a 

hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court 

or of the court to which the petition is addressed (with citation to the conflicting 

case or cases) and consideration by the full court is therefore necessary to secure 

and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of 

which must be concisely stated; for example, a petition may assert that a proceeding 

presents a question of exceptional importance if it involves an issue on which the 

panel decision conflicts with the authoritative decisions of other United States 

Courts of Appeals that have addressed the issue.

(2) Except by the court’s permission: 

(A) a petition for an en banc hearing or rehearing produced using a computer must 

not exceed 3,900 words; and 

(B) a handwritten or typewritten petition for an en banc hearing or rehearing must 

not exceed 15 pages. 

(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for 

panel rehearing and a petition for rehearing en banc, they are considered a single 

document even if they are filed separately, unless separate filing is required by local 

rule.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 126

(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an 

appeal be heard initially en banc must be filed by the date when the appellee’s brief 

is due. A petition for a rehearing en banc must be filed within the time prescribed 

by Rule 40 for filing a petition for rehearing.

(d) Number of Copies. The number of copies to be filed must be prescribed by local 

rule and may be altered by order in a particular case.

(e) Response. No response may be filed to a petition for an en banc consideration 

unless the court orders a response.

(f) Call for a Vote. A vote need not be taken to determine whether the case will be 

heard or reheard en banc unless a judge calls for a vote.

Federal Circuit Rule 35

Rule 35. En Banc Determination

(a) General.

(1) Arguing to a Panel to Overrule a Precedent. Although only the 

court en banc may overrule a binding precedent, a party may argue, in 

its brief and oral argument, to overrule a binding precedent without 

petitioning for hearing en banc. The panel will decide whether to ask 

the regular active judges to consider hearing the case en banc.

(2) Frivolous Petition. A petition for hearing or rehearing en banc that 

does not meet the standards of Federal Rule of Appellate Procedure 

35(a) may be deemed frivolous and subject to sanctions.

(b) Statement of Counsel.

(1) Petition for Hearing En Banc. A petition that an appeal be initially 

heard en banc must contain the following statement of counsel at the 

beginning:

Based on my professional judgment, I believe this appeal requires an 

answer to one or more precedent-setting questions of exceptional 

importance: (set forth each question in a separate sentence).

/s/ __________________

ATTORNEY OF RECORD FOR __________________

(2) Petition for Rehearing En Banc. A petition that an appeal be 

reheard en banc must contain one or both of the following statements 

of counsel at the beginning:

Based on my professional judgment, I believe the panel decision is 

contrary to the following decision(s) of the Supreme Court of the 

United States or the precedent(s) of this court: (cite specific decisions).

Based on my professional judgment, I believe this appeal requires an 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 127

answer to one or more precedent-setting questions of exceptional 

importance: (set forth each question in a separate sentence).

/s/ __________________

ATTORNEY OF RECORD FOR __________________

(c) Petition for Hearing or Rehearing En Banc; Response.

(1) Certificate of Interest. A certificate of interest (see Federal Circuit 

Rule 47.4) must be included in a petition for a hearing or rehearing en 

banc or a response to such a petition. The certificate must appear 

immediately following the cover.

(2) Items Excluded from Page or Word Limitation. The following 

items do not count against the page or word limitation in Federal Rule 

of Appellate Procedure 35(b)(2):

(A) the certificate of interest;

(B) the table of contents;

(C) the table of citations; and

(D) any addendum containing statutes, rules, regulations, and 

similar matters.

(3) Rehearing En Banc: Copy of Opinion or Judgment. A petition for 

a rehearing must include a copy of the opinion or the judgment of 

affirmance without opinion. The copy must be bound with the petition 

as an addendum.

(4) Number of Copies. If only nonconfidential copies are filed, in 

addition to the copy filed through CM/ECF, eighteen copies of a 

petition for hearing or rehearing en banc must be filed with the court. 

If confidential and nonconfidential copies are filed, in addition to the 

copies filed through CM/ECF, eighteen copies of the confidential 

petition and three copies of the nonconfidential petition must be filed 

with the court. Two copies of the confidential petition must be served 

on each party separately represented.

(d) Combined Petition for Panel Rehearing and Rehearing En Banc. If a 

party chooses to file both a petition for panel rehearing, see Federal Circuit 

Rule 40, and a petition for a rehearing en banc, then the two must not be 

filed separately and they must be combined. A combined petition for panel 

rehearing and rehearing en banc must comply with Federal Circuit Rule 

35(c). The cover of a combined petition must indicate that it is a combined 

petition.

(e) Contents of Petition for Hearing En Banc, Rehearing En Banc, and 

Combined Petition; Response.

(1) Petition for Hearing En Banc. The preferred contents and 

organization for a petition for a hearing en banc are:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 128

(A) white cover or first sheet with the information prescribed in 

Federal Rule of Appellate Procedure 32(a)(2);

(B) the certificate of interest (see Federal Circuit Rule 47.4);

(C) the table of contents;

(D) the table of authorities;

(E) the statement of counsel required in Federal Circuit Rule 35(b);

(F) the argument; and

(G) the proof of service (see Federal Rule of Appellate Procedure 

25(d)).

(2) Petition for Rehearing En Banc. The preferred contents and 

organization for a petition for a rehearing en banc are:

(A) white cover or first sheet with the information prescribed in 

Federal Rule of Appellate Procedure 32(a)(2);

(B) the certificate of interest (see Federal Circuit Rule 47.4);

(C) the table of contents;

(D) the table of authorities;

(E) the statement of counsel required in Federal Circuit Rule 35(b);

(F) the argument;

(G) the addendum containing a copy of the court’s opinion or 

judgment of affirmance without opinion sought to be reheard; 

and

(H) the proof of service (see Federal Rule of Appellate Procedure 

25(d)).

(3) Combined Petition for Panel Rehearing and Rehearing En 

Banc. The preferred contents and organization for a combined petition 

for panel rehearing and a rehearing en banc are:

(A) white cover or first sheet with the information prescribed in 

Federal Rule of Appellate Procedure 32(a)(2);

(B) the certificate of interest (see Federal Circuit Rule 47.4);

(C) the table of contents;

(D) the table of authorities;

(E) the statement of counsel required in Federal Circuit Rule 35(b);

(F) the points of law or fact overlooked or misapprehended by the 

panel of the court;

(G) the argument in support of a rehearing;

(H) the argument in support of rehearing en banc;

(I) the addendum containing a copy of the court’s opinion or 

judgment of affirmance without opinion sought to be reheard; 

and

(J) the proof of service (see Federal Rule of Appellate Procedure 

25(d)).

(4) Response. If the court requests a response, which must not exceed 

3,900 words if produced using a computer or 15 pages if handwritten or 

typewritten, the preferred contents and organization are:
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 129

(A) white cover or first sheet with the information prescribed in

Federal Rule of Appellate Procedure 32(a)(2);

(B) the certificate of interest (see Federal Circuit Rule 47.4);

(C) the table of contents;

(D) the table of authorities;

(E) argument against a rehearing, rehearing en banc, or both; and

(F) the proof of service (see Federal Rule of Appellate Procedure 

25(d)).

(f) Additional Copies of Briefs in Cases to be Heard En Banc. Within 7 

days after the order granting a rehearing en banc, counsel must file 30 paper 

sets of the briefs and appendices that were before the panel that initially 

heard the appeal, unless the court directs otherwise.

(g) Amicus Curiae Brief. Except by the court’s permission or direction, an 

amicus curiae brief submitted in connection with a petition for hearing en 

banc, a petition for rehearing en banc, or a combined petition for panel 

rehearing and rehearing en banc, must be accompanied by a motion for leave 

and must not exceed 2,600 words if produced using a computer or 10 pages if 

handwritten or typewritten. Except by the court’s permission or direction, 

any brief amicus curiae or any motion for leave to file a brief amicus curiae 

must be filed within 14 days of the date of filing of the petition or response 

that the amicus curiae supports. If the amicus curiae does not support either 

party, then the brief or motion for leave to file the brief must be filed within 

14 days of the date of filing of the petition.

Practice Notes

HEARING OR REHEARING EN BANC. The court may sua sponte order that an 

appeal be initially heard or be reheard en banc. The panel or a judge on the panel 

that is considering a case may at any time request the active judges of the court to 

hear or rehear the case en banc with or without further briefs or argument by 

counsel.

REHEARING EN BANC; SENIOR JUDGES. If a senior judge participated in the 

original hearing and disposition of a case for which rehearing en banc is granted, 

that senior judge may participate fully in the rehearing.

COMBINED PETITION FOR PANEL REHEARING AND REHEARING EN 

BANC. When a combined petition for panel rehearing and petition for rehearing en 

banc is filed, the petition for panel rehearing is decided first in the same manner as 

a petition for panel rehearing without an accompanying petition for rehearing en 

banc. If the panel grants the requested relief, the petition for rehearing en banc is 

deemed moot.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 130

PETITION FOR REHEARING EN BANC REFERRED TO PANEL. A petition 

for rehearing en banc is presumed to request relief that can be granted by the panel 

that heard the appeal, and action on the petition for rehearing en banc will be 

deferred until the panel has an opportunity to grant the relief requested.

TIMELINESS. A petition for hearing or rehearing en banc is filed when the court 

receives it, not on mailing. The clerk of court will return an untimely petition for 

hearing or rehearing en banc.

NONPRECEDENTIAL OPINIONS. A petition for rehearing en banc is rarely 

appropriate if the appeal was the subject of a nonprecedential opinion by the panel 

of judges that heard it.

WRIT OF CERTIORARI. Filing a petition for a panel rehearing or for rehearing 

en banc is not a prerequisite to filing a petition for a writ of certiorari in the 

Supreme Court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 131

Federal Rule of Appellate Procedure 36

Rule 36. Entry of Judgment; Notice

(a) Entry. A judgment is entered when it is noted on the docket. The clerk must 

prepare, sign, and enter the judgment:

(1) after receiving the court’s opinion—but if settlement of the judgment’s form is 

required, after final settlement; or

(2) if a judgment is rendered without an opinion, as the court instructs.

(b) Notice. On the date when judgment is entered, the clerk must serve on all 

parties a copy of the opinion—or the judgment, if no opinion was written—and a 

notice of the date when the judgment was entered.

Federal Circuit Rule 36

Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion

The court may enter a judgment of affirmance without opinion, citing this rule, 

when it determines that any of the following conditions exist and an opinion would 

have no precedential value:

(a) the judgment, decision, or order of the trial court appealed from is based on 

findings that are not clearly erroneous;

(b) the evidence supporting the jury’s verdict is sufficient;

(c) the record supports summary judgment, directed verdict, or judgment on the 

pleadings;

(d) the decision of an administrative agency warrants affirmance under the 

standard of review in the statute authorizing the petition for review; or

(e) a judgment or decision has been entered without an error of law.

Practice Note

SEPARATE JUDGMENT NOT PREPARED IN CERTAIN INSTANCES. A 

separate judgment is not prepared when a case is dismissed on consent or on motion 

or for failure to prosecute. The order of dismissal serves as the judgment when 

entered.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 132

Federal Rule of Appellate Procedure 37

Rule 37. Interest on Judgment

(a) When the Court Affirms. Unless the law provides otherwise, if a money 

judgment in a civil case is affirmed, whatever interest is allowed by law is payable 

from the date when the district court’s judgment was entered.

(b) When the Court Reverses. If the court modifies or reverses a judgment with a 

direction that a money judgment be entered in the district court, the mandate must 

contain instructions about the allowance of interest.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 133

Federal Rule of Appellate Procedure 38

Rule 38. Frivolous Appeal

If a court of appeals determines that an appeal is frivolous, it may, after a 

separately filed motion or notice from the court and reasonable opportunity to 

respond, award just damages and single or double costs to the appellee.

Rule 38 Practice Note

WARNING AGAINST FILING OR PROCEEDING WITH A FRIVOLOUS 

APPEAL OR PETITION. The court’s early decision in Asberry v. United States, 

692 F.2d. 1378 (Fed. Cir. 1982), established the policy of enforcing this rule 

vigorously. Since then, many precedential opinions have included sanctions under 

the rule. Damages, double costs, and attorney fees, singly or in varying

combinations, have been imposed on counsel, parties, and pro se petitioners for 

pursuing frivolous appeals.

CHALLENGING A FRIVOLOUS APPEAL. If an appellee or respondent 

considers an appeal or petition frivolous, the appellee or respondent must file a 

separate motion with that allegation. The assertion that an appeal is frivolous must 

be accompanied by citation to the opposing brief or the record below with clear 

argument as to why those citations establish that the appeal is frivolous. A party 

whose case has been challenged as frivolous is expected to respond or to request 

dismissal of the case.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 134

Federal Rule of Appellate Procedure 39

Rule 39. Costs

(a) Against Whom Assessed. The following rules apply unless the law provides or 

the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the 

parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are 

taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United 

States, its agency, or officer will be assessed under Rule 39(a) only if authorized by 

law.

(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum 

rate for taxing the cost of producing necessary copies of a brief or appendix, or 

copies of records authorized by Rule 30(f). The rate must not exceed that generally 

charged for such work in the area where the clerk’s office is located and should 

encourage economical methods of copying.

(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must—within 14 days after entry of judgment—

file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless 

the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion 

in the mandate, but issuance of the mandate must not be delayed for taxing costs. If 

the mandate issues before costs are finally determined, the district clerk must—

upon the circuit clerk’s request—add the statement of costs, or any amendment of 

it, to the mandate.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 135

(e) Costs on Appeal Taxable in the District Court. The following costs on 

appeal are taxable in the district court for the benefit of the party entitled to costs 

under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending 

appeal; and

(4) the fee for filing the notice of appeal.

Federal Circuit Rule 39

Rule 39. Costs

(a) Notice of Entitlement to Costs. When the clerk of court provides notice of 

judgment or order disposing of an appeal, the clerk of court must advise 

which party or parties are entitled to costs.

(b) Bill of Costs; Copies; Objection. A party must file the bill of costs on the 

form prescribed by the court. An objection to the bill of costs must not exceed 

1,300 words if prepared using a computer or 5 pages if handwritten or 

typewritten.

Practice Notes

COSTS WHEN THE UNITED STATES IS A PARTY. 28 U.S.C. § 2412(a)

authorizes costs to be taxed against the United States; thus, costs (as defined in 28 

U.S.C. § 1920) may be awarded both for and against the United States in this court. 

LIMIT ON PRINTING COSTS. The costs taxable under Federal Rule of Appellate 

Procedure 39 are limited to the costs of preparing typewritten briefs (even if a party 

elects to have a brief printed) and of copying briefs and appendices.

CURRENT RATES. The following rates are the current maximum allowable costs: 

$6.00 per page for the table of page numbers of designated materials, the originals 

of briefs, and the table of contents for the appendix (whether printed, typewritten, 

or word processed); $0.08 per page for copying and collating; and $2.00 per copy for 

covers and binding.

ALLOWABLE COSTS. Costs may be billed for the number of copies of briefs and 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 136

appendices required to be prepared by the court. The cost of service copies of the 

table or physical compilation of the designated materials may also be billed. Any 

other cost billed must be separately justified. The total billed for any item must be 

limited to the lesser of actual or allowable costs. Actual cost of briefs and appendices 

prepared in-house includes word processing, copying, and binding, at the amount 

normally billed to a client for these services. The United States may assume its 

actual costs are the allowable costs. The costs of correcting a nonconforming brief 

are not taxable. Counsel are urged to stipulate to costs.

PAYMENT OF COSTS TAXED. Pay the party or parties in whose favor costs are 

taxed by check sent to counsel for the party or to the party if the party appeared pro 

se. Do not involve the court in collection matters.

DOCKETING FEE AND COSTS IN A CASE INVOLVING A CLAIM UNDER 

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT OF 1994. No costs are taxed, and the docketing fee does not have to 

be paid, in a petition for review of a decision of the Merits Systems Protection Board 

if the underlying appeal involved a claim under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA)). 38 U.S.C. § 4323,

4324. The petitioner must complete Form 6B to inform the court that the case 

involves a claim under USERRA.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 137

Federal Rule of Appellate Procedure 40

Rule 40. Petition for Panel Rehearing

(a) Time to File; Contents; Answer; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition 

for panel rehearing may be filed within 14 days after entry of judgment. But in a 

civil case, unless an order shortens or extends the time, the petition may be filed by 

any party within 45 days after entry of judgment if one of the parties is:

(A) the United States;

(B) a United States agency;

(C) a United States officer or employee sued in an official capacity; or

(D) a current or former United States officer or employee sued in an individual 

capacity for an act or omission occurring in connection with duties performed on the 

United States’ behalf — including all instances in which the United States 

represents that person when the court of appeals’ judgment is entered or files that 

petition for that person.

(2) Contents. The petition must state with particularity each point of law or fact 

that the petitioner believes the court has overlooked or misapprehended and must 

argue in support of the petition. Oral argument is not permitted.

(3) Answer. Unless the court requests, no answer to a petition for panel rehearing is 

permitted. But ordinarily rehearing will not be granted in the absence of such a 

request.

(4) Action by the Court. If a petition for panel rehearing is granted, the court may do 

any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(C) issue any other appropriate order.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 138

(b) Form of Petition; Length. The petition must comply in form with Rule 32. 

Copies must be served and filed as Rule 31 prescribes. Except by the court’s 

permission: 

(1) a petition for panel rehearing produced using a computer must not exceed 3,900 

words; and 

(2) a handwritten or typewritten petition for panel rehearing must not exceed 15 

pages. 

Federal Circuit Rule 40

Rule 40. Petition for Panel Rehearing

(a) Contents of Petition for Panel Rehearing. The preferred contents and 

organization for a petition for panel rehearing are:

(1) white cover or first page with the information prescribed in Federal 

Rule of Appellate Procedure 32(a)(2);

(2) the certificate of interest (see Federal Circuit Rule 47.4);

(3) the table of contents;

(4) the points of law or fact overlooked or misapprehended by the court;

(5) the argument;

(6) the addendum containing a copy of the court’s opinion or judgment of 

affirmance without opinion sought to be reheard; and

(7) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(b) Addendum. A copy of the opinion or judgment of affirmance without opinion 

sought to be reheard must be bound with the petition for panel rehearing as 

an addendum.

(c) Items Excluded from Page or Word Limitation; Other Material.

(1) Items Excluded. The following items do not count against the page or 

word limitation in Federal Rule of Appellate Procedure 40(b):

(A) the certificate of interest;

(B) the table of contents;

(C) the table of citations;

(D) the addendum containing a copy of the opinion or judgment of 

affirmance without opinion; and

(E) any addendum containing statutes, rules, regulations, and 

similar matters.

(2) Other Material. Material not listed in this Federal Circuit Rule 40

may not be included in the addendum or in an appendix without leave 

of the court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 139

(d) Answer. If the court requests an answer, which must not exceed 3,900 words 

if prepared using a computer or 15 pages if handwritten or typewritten, the

preferred contents and organization for the answer are::

(1) white cover or first sheet with the information prescribed in Federal 

Rule of Appellate Procedure 32(a)(2);

(2) the certificate of interest (see Federal Circuit Rule 47.4);

(3) the table of contents;

(4) the argument; and

(5) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(e) Time. Except for a civil case in which the United States or its officer or 

agency is a party, a petition for panel rehearing may be filed within 30 days 

after entry of judgment. If the United States or its officer or agency is a party, 

a petition for panel rehearing may be filed within 45 days after entry of 

judgment. The time limits set forth in this rule also apply to a motion for 

panel reconsideration of a dispositive panel order.

(f) Informal Petition for Panel Rehearing; Answer.

(1) Informal Petition. A pro se party may file three copies of an informal 

petition for panel rehearing in letter form not to exceed 15 typewritten 

double-spaced pages, attaching to each a copy of the opinion or 

judgment sought to be reheard.

(2) Informal Answer. If the court requests an answer to an informal 

petition for panel rehearing, or if the court requests a pro se party to 

answer a formal petition for panel rehearing, the answer may be 

informal, following the standards prescribed for informal briefs. The 

informal answer may not exceed 15 typewritten double-spaced pages, 

and three copies must be filed.

(g) Amicus Curiae Brief. Except by the court’s permission or direction, an 

amicus curiae brief submitted in connection with a petition for panel 

rehearing must be accompanied by a motion for leave to file and must not 

exceed 2,600 words if produced using a computer or 10 pages if handwritten 

or typewritten. Except by the court’s permission or direction, any brief 

amicus curiae or any motion for leave to file a brief amicus curiae must be 

filed within 14 days of the date of filing of the petition or response that the 

amicus curiae supports. If the amicus curiae does not support either party, 

then the brief or motion for leave to file the brief must be filed within 14 days 

of the date of filing of the petition.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 140

Practice Notes

PETITION FOR PANEL REHEARING NOT FILED WHEN MAILED. A 

petition for panel rehearing must be received by the court or filed through CM/ECF 

within the time fixed for filing. The time provided in Federal Circuit Rule 40(e) runs 

from the date the judgment is entered (see Federal Rule of Appellate Procedure 36), 

not from the date counsel or the pro se party receives the opinion or order. 

Therefore, Federal Rule of Appellate Procedure 26(c) does not apply. The clerk of 

court may return an untimely petition for panel rehearing.

ACTION BY THE COURT. When a petition for panel rehearing is filed, the clerk 

of court will transmit copies to the panel that decided the case. The clerk of court 

will enter an order denying the petition unless a majority of the panel agrees to 

rehear the case. Rehearing before the panel may take place with or without further 

briefing or oral argument by the parties as the court directs.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 141

Federal Rule of Appellate Procedure 41

Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

(a) Contents. Unless the court directs that a formal mandate issue, the mandate 

consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and 

any direction about costs.

(b) When Issued. The court’s mandate must issue 7 days after the time to file a 

petition for rehearing expires, or 7 days after entry of an order denying a timely 

petition for panel rehearing, petition for rehearing en banc, or motion for stay of 

mandate, whichever is later. The court may shorten or extend the time.

(c) Effective Date. The mandate is effective when issued.

(d) Staying the Mandate.

(1) On Petition for Rehearing or Motion. The timely filing of a petition for panel 

rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the 

mandate until disposition of the petition or motion, unless the court orders 

otherwise.

(2) Pending Petition for Certiorari.

(A) A party may move to stay the mandate pending the filing of a petition for a writ 

of certiorari in the Supreme Court. The motion must be served on all parties and 

must show that the certiorari petition would present a substantial question and 

that there is good cause for a stay.

(B) The stay must not exceed 90 days, unless the period is extended for good cause 

or unless the party who obtained the stay files a petition for the writ and so notifies 

the circuit clerk in writing within the period of the stay. In that case, the stay 

continues until the Supreme Court’s final disposition.

(C) The court may require a bond or other security as a condition to granting or 

continuing a stay of the mandate.

(D) The court of appeals must issue the mandate immediately when a copy of a 

Supreme Court order denying the petition for writ of certiorari is filed.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 142

Federal Circuit Rule 41

Rule 41. Issuance of Mandate

An order dismissing a case on consent or for failure to prosecute, or dismissing, 

remanding, or transferring a case on motion, will constitute the mandate. The date 

of the certified order is the date of the mandate. In an appeal dismissed or 

transferred by the court sua sponte in an opinion, the mandate will issue in regular 

course.

Practice Notes

RELATION OF MANDATE TO APPLICATION FOR CERTIORARI; STAY. 

That a mandate has issued does not affect the right to apply to the Supreme Court

for a writ of certiorari. Consequently, a motion to stay the mandate should advance 

reasons for the stay beyond the mere intention to apply for certiorari, e.g., to 

forestall action in the trial court or agency that would necessitate a remedial order 

of the Supreme Court if the writ of certiorari were granted.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 143

Federal Rule of Appellate Procedure 42

Rule 42. Voluntary Dismissal

(a) Dismissal in the District Court. Before an appeal has been docketed by the 

circuit clerk, the district court may dismiss the appeal on the filing of a stipulation 

signed by all parties or on the appellant’s motion with notice to all parties.

(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed 

appeal if the parties file a signed dismissal agreement specifying how costs are to be 

paid and pay any fees that are due. But no mandate or other process may issue 

without a court order. An appeal may be dismissed on the appellant’s motion on 

terms agreed to by the parties or fixed by the court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 144

Federal Rule of Appellate Procedure 43

Rule 43. Substitution of Parties

(a) Death of a Party.

(1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been 

filed or while a proceeding is pending in the court of appeals, the decedent’s 

personal representative may be substituted as a party on motion filed with the 

circuit clerk by the representative or by any party. A party’s motion must be served 

on the representative in accordance with Rule 25. If the decedent has no 

representative, any party may suggest the death on the record, and the court of 

appeals may then direct appropriate proceedings.

(2) Before Notice of Appeal Is Filed—Potential Appellant. If a party entitled to 

appeal dies before filing a notice of appeal, the decedent’s personal representative—

or, if there is no personal representative, the decedent’s attorney of record—may file 

a notice of appeal within the time prescribed by these rules. After the notice of 

appeal is filed, substitution must be in accordance with Rule 43(a)(1).

(3) Before Notice of Appeal Is Filed—Potential Appellee. If a party against whom an 

appeal may be taken dies after entry of a judgment or order in the district court, but 

before a notice of appeal is filed, an appellant may proceed as if the death had not 

occurred. After the notice of appeal is filed, substitution must be in accordance with 

Rule 43(a)(1).

(b) Substitution for a Reason Other Than Death. If a party needs to be 

substituted for any reason other than death, the procedure prescribed in Rule 43(a) 

applies.

(c) Public Officer: Identification; Substitution.

(1) Identification of Party. A public officer who is a party to an appeal or other 

proceeding in an official capacity may be described as a party by the public officer’s 

official title rather than by name. But the court may require the public officer’s 

name to be added.

(2) Automatic Substitution of Officeholder. When a public officer who is a party to 

an appeal or other proceeding in an official capacity dies, resigns, or otherwise 

ceases to hold office, the action does not abate. The public officer’s successor is 

automatically substituted as a party. Proceedings following the substitution are to 

be in the name of the substituted party, but any misnomer that does not affect the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 145

substantial rights of the parties may be disregarded. An order of substitution may 

be entered at any time, but failure to enter an order does not affect the substitution.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 146

Federal Rule of Appellate Procedure 44

Rule 44. Case Involving a Constitutional Question When the United States 

or the Relevant State is Not a Party

(a) Constitutional Challenge to Federal Statute. If a party questions the 

constitutionality of an Act of Congress in a proceeding in which the United States or 

its agency, officer, or employee is not a party in an official capacity, the questioning 

party must give written notice to the circuit clerk immediately upon the filing of the 

record or as soon as the question is raised in the court of appeals. The clerk must 

then certify that fact to the Attorney General.

(b) Constitutional Challenge to State Statute. If a party questions the 

constitutionality of a statute of a State in a proceeding in which that State or its 

agency, officer, or employee is not a party in an official capacity, the questioning 

party must give written notice to the circuit clerk immediately upon the filing of the 

record or as soon as the question is raised in the court of appeals. The clerk must 

then certify that fact to the attorney general of the State.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 147

Federal Rule of Appellate Procedure 45

Rule 45. Clerk’s Duties

(a) General Provisions.

(1) Qualifications. The circuit clerk must take the oath and post any bond required 

by law. Neither the clerk nor any deputy clerk may practice as an attorney or 

counselor in any court while in office.

(2) When Court Is Open. The court of appeals is always open for filing any paper, 

issuing and returning process, making a motion, and entering an order. The clerk’s 

office with the clerk or a deputy in attendance must be open during business hours 

on all days except Saturdays, Sundays, and legal holidays. A court may provide by 

local rule or by order that the clerk’s office be open for specified hours on Saturdays 

or on legal holidays other than New Year’s Day, Martin Luther King, Jr.’s Birthday, 

Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus 

Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.

(b) Records.

(1) The Docket. The circuit clerk must maintain a docket and an index of all 

docketed cases in the manner prescribed by the Director of the Administrative 

Office of the United States Courts. The clerk must record all papers filed with the 

clerk and all process, orders, and judgments.

(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases 

awaiting argument. In placing cases on the calendar for argument, the clerk must 

give preference to appeals in criminal cases and to other proceedings and appeals 

entitled to preference by law.

(3) Other Records. The clerk must keep other books and records required by the 

Director of the Administrative Office of the United States Courts, with the approval 

of the Judicial Conference of the United States, or by the court.

(c) Notice of an Order or Judgment. Upon the entry of an order or judgment, the 

circuit clerk must immediately serve a notice of entry on each party, with a copy of 

any opinion, and must note the date of service on the docket. Service on a party 

represented by counsel must be made on counsel.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 148

(d) Custody of Records and Papers. The circuit clerk has custody of the court’s 

records and papers. Unless the court orders or instructs otherwise, the clerk must 

not permit an original record or paper to be taken from the clerk’s office. Upon 

disposition of the case, original papers constituting the record on appeal or review 

must be returned to the court or agency from which they were received. The clerk 

must preserve a copy of any brief, appendix, or other paper that has been filed.

Federal Circuit Rule 45

Rule 45. Clerk of Court’s Duties

(a) Dismissal by Clerk of Court; Reconsideration. The clerk of court may 

dismiss an appeal for a failure to follow the Federal Rules of Appellate 

Procedure or these Federal Circuit Rules. A party may move that the court 

reconsider such dismissal. A motion for reconsideration must:

(1) be filed within 14 days after issuance of the order of dismissal;

(2) be in the form prescribed by Federal Rule of Appellate Procedure 27

and Federal Circuit Rule 27; and

(3) not exceed 5 pages.

(b) Informal Motion for Reconsideration. A pro se party may file one copy of 

an informal motion, which may be in the form of a letter, for reconsideration 

of the dismissal. The informal motion must not exceed 5 typewritten doublespaced pages. A copy of the dismissal order must be attached to the original 

and each copy of the informal motion.

(c) Authority to Enter Orders. The clerk of court may enter an order “For the 

Court” only when authorized by these rules or at the direction of a judge or 

the court.

(d) Communication with the Court. All correspondence and telephone calls 

about cases and motions and all press inquiries must be directed to the clerk 

of court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 149

Federal Rule of Appellate Procedure 46

Rule 46. Attorneys

(a) Admission to the Bar.

(1) Eligibility. An attorney is eligible for admission to the bar of a court of appeals if 

that attorney is of good moral and professional character and is admitted to practice 

before the Supreme Court of the United States, the highest court of a state, another 

United States court of appeals, or a United States district court (including the 

district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

(2) Application. An applicant must file an application for admission, on a form 

approved by the court that contains the applicant’s personal statement showing 

eligibility for membership. The applicant must subscribe to the following oath or 

affirmation:

“I, ________________________, do solemnly swear [or affirm] that I will conduct 

myself as an attorney and counselor of this court, uprightly and according to law; 

and that I will support the Constitution of the United States.”

(3) Admission Procedures. On written or oral motion of a member of the court’s bar, 

the court will act on the application. An applicant may be admitted by oral motion 

in open court. But, unless the court orders otherwise, an applicant need not appear 

before the court to be admitted. Upon admission, an applicant must pay the clerk 

the fee prescribed by local rule or court order.

(b) Suspension or Disbarment.

(1) Standard. A member of the court’s bar is subject to suspension or disbarment by 

the court if the member:

(A) has been suspended or disbarred from practice in any other court; or

(B) is guilty of conduct unbecoming a member of the court’s bar.

(2) Procedure. The member must be given an opportunity to show good cause, 

within the time prescribed by the court, why the member should not be suspended 

or disbarred.

(3) Order. The court must enter an appropriate order after the member responds 

and a hearing is held, if requested, or after the time prescribed for a response 

expires, if no response is made.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 150

(c) Discipline. A court of appeals may discipline an attorney who practices before 

it for conduct unbecoming a member of the bar or for failure to comply with any 

court rule. First, however, the court must afford the attorney reasonable notice, an 

opportunity to show cause to the contrary, and, if requested, a hearing.

Federal Circuit Rule 46

Rule 46. Attorneys

(a) Eligibility. An attorney is eligible for admission to the bar of this court if 

that attorney is of good moral and professional character and is admitted to 

practice before and of good standing in:

(1) any of the courts listed in Federal Rule of Appellate Procedure 46(a);

(2) the United States Court of International Trade;

(3) the United States Court of Federal Claims;

(4) the United States Court of Appeals for Veterans Claims; or

(5) the District of Columbia Court of Appeals.

(b) Procedure for Admission.

(1) Motion in Open Court. An attorney may be admitted to the bar in 

open court by appearing personally with a sponsor who is a member of 

the bar of this court and who states the applicant’s qualifications and 

moves the admission. Motions for admission to the bar will be 

entertained at the opening of each session of court.

(2) Written Motion by Member of the Court’s Bar. An attorney may 

be admitted on written motion of a member of the bar of the court who 

states the applicant’s qualifications.

(3) Written Motion by Attorney. An attorney may be admitted on that 

attorney’s own motion, accompanied by a certificate of good standing 

from a court listed in Federal Rule of Appellate Procedure 46(a) or 

Federal Circuit Rule 46(a). The certificate must be dated within 30 

days of the motion for admission and must bear the seal of the issuing 

court. A written motion for admission must be submitted on a form 

approved by this court. The clerk of court will furnish the form.

(4) Oath. Each attorney admitted to the bar of this court must take an 

oath prescribed by the court.

(c) Admission Fee; pay.gov. The fee for admission to the bar of the court and 

the fee for a duplicate certificate are posted on the court’s website. Payment 

must be made through CM/ECF using pay.gov. The applicant will receive a 

certificate of admission. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 151

(d) Government Attorney. An attorney for any federal, state, or local 

government office or agency may appear before this court in connection with 

that attorney’s official duties without formal admission to the bar of the 

court.

(e) Change of Name, Address, or Telephone Number. An attorney admitted 

to the bar of this court must promptly notify the clerk of court of a change of 

name, address, email address or telephone number.

(f) Disciplinary Action. Disciplinary action against an attorney will be 

conducted in accordance with the Federal Circuit Attorney Discipline Rules.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 152

Federal Rule of Appellate Procedure 47

Rule 47. Local Rules by Courts of Appeals

(a) Local Rules.

(1) Each court of appeals acting by a majority of its judges in regular active service 

may, after giving appropriate public notice and opportunity for comment, make and 

amend rules governing its practice. A generally applicable direction to parties or 

lawyers regarding practice before a court must be in a local rule rather than an 

internal operating procedure or standing order. A local rule must be consistent 

with—but not duplicative of—Acts of Congress and rules adopted under 28 U.S.C. 

§2072 and must conform to any uniform numbering system prescribed by the 

Judicial Conference of the United States. Each circuit clerk must send the 

Administrative Office of the United States Courts a copy of each local rule and 

internal operating procedure when it is promulgated or amended.

(2) A local rule imposing a requirement of form must not be enforced in a manner 

that causes a party to lose rights because of a nonwillful failure to comply with the 

requirement.

(b) Procedure When There Is No Controlling Law. A court of appeals may 

regulate practice in a particular case in any manner consistent with federal law, 

these rules, and local rules of the circuit. No sanction or other disadvantage may be 

imposed for noncompliance with any requirement not in federal law, federal rules, 

or the local circuit rules unless the alleged violator has been furnished in the 

particular case with actual notice of the requirement.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 153

Federal Circuit Rule 47.1

Rule 47.1. Sessions and Places of Holding Court

(a) Sessions. Sessions of the court will be held as the court announces.

(b) Places of Holding Court. The court may hold sessions in any place named 

and permitted in 28 U.S.C. § 48.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 154

Federal Circuit Rule 47.2

Rule 47.2. Panels

(a) Panels. Cases and controversies will be heard and determined by a panel 

consisting of an odd number of at least three judges, two of whom may be 

senior judges of the court.

(b) Assignment of Cases. Assignment of cases to panels will be made so as to 

provide each judge with a representative cross-section of the fields of law 

within the jurisdiction of the court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 155

Federal Circuit Rule 47.3

Rule 47.3. Appearance

(a) Party and Amicus Curiae Must Be Represented; Pro Se Party; 

Attorney of Record; Of Counsel. An individual (not a corporation, 

partnership, organization, or other legal entity) may choose to be represented 

by counsel or to represent himself or herself pro se, but may not be 

represented by a nonattorney. An individual represented by counsel, each 

other party in an action, each party seeking to intervene, and each amicus

curiae must appear through an attorney authorized to practice before this 

court and must designate one attorney as the principal attorney of record.

Any other attorney assisting the attorney of record must be designated as “of 

counsel.” Every attorney named on a brief must enter an appearance, except 

that the filing of an entry of appearance does not apply to government 

officials who, by reason of their status as supervisors or heads of offices, are 

listed on briefs in their ex officio capacity. Documents and matters that are 

sent by the court will be transmitted only to the principal attorney of record.

(b) Petition for Writ of Mandamus or Prohibition. The attorney whose 

name, address, email address and telephone number appears first on a 

petition for a writ of mandamus or a writ of prohibition will be deemed 

attorney of record.

(c) Appearance; Contents; Service of Papers Before Appearance; 

Withdrawal of Counsel.

(1) Appearance. Each attorney who intends to participate in an appeal 

must file, within 14 days of docketing, an entry of appearance on the 

form provided by the clerk of court. A pro se party must also file an 

entry of appearance unless all the necessary information appears on 

the petition for review or notice of appeal. Any attorney retained for 

the case later must file an entry of appearance within 14 days after 

being retained. An attorney representing a party seeking or permitted 

to intervene, and for each amicus curiae, must file an entry of 

appearance with the motion for leave to intervene (if required) or with 

the brief amicus curiae. If an attorney’s entry of appearance is first 

submitted after a case is assigned to a merits panel, the appearance 

will be treated as a motion to appear and will be transmitted to the

panel, which may choose to reject the entry of appearance. Counsel 

must immediately file an updated Entry of Appearance if 

representation changes, including a change in contact information. 

Electronic filers must also report a change in contact information to 

the PACER Service Center. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 156

(2) Contents. The appearance must include the name of the party or 

parties represented and the name, address, email address, and 

telephone number of the attorney or the pro se party. An attorney’s 

appearance must show the name of the law firm or public or quasipublic legal office with which the attorney is associated. A new entry of 

appearance must be filed and served any time the information on 

record changes.

(3) Certificate of Interest. A certificate of interest must be filed at the 

same time as the first-filed entry of appearance. See Federal Circuit 

Rule 47.4. Both documents are due within 14 days of the date of 

docketing of the appeal or petition.

(4) Service of Papers Before Appearance. Until an attorney files a 

written entry of appearance, service of all papers must be made on the 

attorney of record in the proceeding below at the last known address. If 

no attorney has filed an entry of appearance through ECF for a party, 

service of any matters must be made outside of CM/ECF until an 

attorney enters an appearance. In a pro se case, unless an attorney 

files an entry of appearance, service of all papers must be made on the 

pro se party at the last known address.

(5) Withdrawal of Counsel. An attorney other than a government 

attorney who has been properly replaced, may not withdraw from 

representing a party without notice to the party, filing a motion with 

the court, and obtaining the court’s consent.

(d) Signature. At least one copy of each brief, petition, motion, application, 

notice, or other paper presented for filing must contain the signature of the 

pro se party or the electronic signature of the attorney who has entered an 

appearance. When no attorney appearing for a party is available to sign, any 

person having actual authority may sign on behalf of the attorney of record, 

attaching an affidavit of authority or an unsworn declaration of authority 

under penalty of perjury pursuant to 28 U.S.C. § 1746.

Practice Notes

FORM FOR ENTRY OF APPEARANCE. See Form 8, for a form for entry of 

appearance.

FILINGS REQUIRING SIGNATURE AND APPEARANCE. After docketing, the 

clerk will accept no filing required to be signed, unless it is signed by a pro se party 

or an attorney who is a member of the bar, unless exempted under Federal Circuit 

Rule 46, and unless the pro se party or attorney has entered an appearance in the 

case.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 157

NEW COUNSEL ON APPEAL. New counsel on appeal should provide a copy of 

the entry of appearance form filed in this court to the lower court or agency to 

expedite service of the certified list and other communications.

POST-PANELING ENTRY OF APPEARANCE. When an entry of appearance is 

filed after the case has been assigned to a merits panel, that entry will be 

transmitted to the merits panel as a motion. Notification of the disposition of the 

motion, accepting or rejecting the entry of appearance, will be provided to counsel 

through CM/ECF.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 158

Federal Circuit Rule 47.4

Rule 47.4. Certificate of Interest

(a) Purpose; Contents. To determine whether recusal by a judge is necessary 

or appropriate, an attorney – except an attorney for the United States – for 

each party, including a party seeking or permitted to intervene, and for each 

amicus curiae, must file a certificate of interest. The certificate of interest 

must be filed within 14 days of the date of docketing of the appeal or petition, 

except that for an intervenor or amicus curiae, the certificate of interest must 

be filed with the motion and with the brief. A certificate of interest must be in 

the form set forth in the appendix to these rules, and must contain the 

information below in the order listed. Negative responses, if applicable, are 

required as to each item on the form.

(1) The full name of every party or amicus represented in the case by the 

attorney.

(2) The name of the real party in interest if the party named in the 

caption is not the real party in interest.

(3) The corporate disclosure statement prescribed in Federal Rule of 

Appellate Procedure 26.1 and identifying each party with its parent 

corporation or any publicly held corporation that owns 10% or more of 

its stock.

(4) The names of all law firms and the partners and associates that have 

appeared for the party in the lower tribunal or are expected to appear 

for the party in this court and who are not already listed on the docket 

for the current case.

(5) The title and number of any case known to counsel to be pending in 

this or any other court or agency that will directly affect or be directly 

affected by this court’s decision in the pending appeal.

(b) Filing. The certificate must be filed with the entry of appearance. The 

certificate must also be included with each motion, petition, or response 

thereto, and in each principal brief and brief amicus curiae. When ownership, 

representation or contact information changes an updated Certificate of 

Interest must be filed when the change occurs.

(c) Changes. If any of the information required in Federal Circuit Rule 47.4(a)

changes after the certificate is filed and before the mandate has issued, the 

party must file an amended certificate within 7 days of the change.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 159

Federal Circuit Rule 47.5

Rule 47.5. Statement of Related Cases

Each principal brief and certificate of interest must contain a statement of related 

cases indicating:

(a) whether any other appeal in or from the same civil action or proceeding in the 

lower court or body was previously before this or any other appellate court, 

stating:

(1) the title and number of that earlier appeal;

(2) the date of decision;

(3) the composition of the panel; and

(4) the citation of the opinion in the Federal Reporter;

(b) the title and number of any case known to counsel to be pending in this or 

any other court or agency that will directly affect or be directly affected by 

this court’s decision in the pending appeal. 

Practice Note

CASES THAT ONLY INVOLVE SAME GENERAL LEGAL ISSUE. 

Cases are not “related” within the meaning of Rule 47.4(a)(5) and Rule 

47.5(b) simply because they involve the same general legal issue, for 

example, an issue as to the correct construction of a statute or regulation. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 160

Federal Circuit Rule 47.6. [Reserved]
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 161

Federal Circuit Rule 47.7

Rule 47.7. Attorney Fees and Expenses Incurred in This Court

(a) Time for Filing; Response.

(1) Generally. The court may award attorney fees and expenses when 

authorized by law. An award may be made by the court on its own 

motion or on application of a party.

(2) Time for Filing. An application for an award of attorney fees and 

expenses must be served and filed within the time prescribed by the 

statute authorizing the award. If the statute does not prescribe a time, 

the application must be made within 30 days after entry of the 

judgment or order denying rehearing, whichever is later. However, if a 

petition for writ of certiorari is filed, the application will not be due 

until 30 days after all proceedings in the Supreme Court are concluded.

(3) Response. No response may be filed to an application for attorney fees 

and expenses unless directed by the court, but no application will be 

granted without the court giving the party an opportunity to submit a 

response.

(4) Award on the Court’s Motion. A party awarded attorney fees and 

expenses by the court on its own motion must file and serve a bill of 

attorney fees and expenses containing the information required in 

Federal Circuit Rule 47.7(b)(2)(A)-(C) with the bill of costs authorized 

by Federal Rule of Appellate Procedure 39. Any objection must be filed 

within the time prescribed in Federal Rule of Appellate Procedure 39.

(b) Content of Application.

(1) Application under the Equal Access to Justice Act. An 

application for attorney fees and expenses under the Equal Access to 

Justice Act must be made on Form 20.

(2) Other Applications. Each other application for attorney fees and 

expenses must cite the authority for an award and must indicate how 

the prerequisites for an award, including timeliness, are met. In 

addition, each application must contain a statement, under oath, 

specifying:

(A) the nature of each service rendered;

(B) the amount of time expended rendering each type of service; and

(C) the customary charge for each type of service rendered.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 162

Federal Circuit Rule 47.8

Rule 47.8. In Camera Proceedings

On motion showing that the interest of justice requires it, the court may sit in 

camera, seal its record, or both.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 163

Federal Circuit Rule 47.9

Rule 47.9. Petition for Judicial Review Under 5 U.S.C. § 7703(d)

(a) Time for Filing. A petition for review of a final order or decision of the Merit 

Systems Protection Board or of an arbitrator pursuant to 5 U.S.C. § 7703(d)

must be filed by the Director of the Office of Personnel Management within 

60 days after the date the Board or arbitrator issues notice of the final order 

or decision of the Board or arbitrator.

(b) Contents. The Director’s petition must contain:

(1) a statement of jurisdiction (see Federal Rule of Appellate Procedure 

28(a)(4));

(2) the Director’s determination that the Board or arbitrator erred in 

interpreting a civil service law, rule, or regulation affecting personnel 

management and the reasons supporting the determination;

(3) the Director’s determination that the decision or order of the Board or 

arbitrator will have a substantial impact on a civil service law, rule, 

regulation, or policy directive, and the reasons supporting the 

determination; and

(4) an appendix including a copy of the order or decision for which review 

is sought and any relevant portion of the record on review; the 

appendix may also include documents not part of the record on review 

that are relevant to the determination that the decision will have 

substantial impact.

(c) Length of Petition, Answer and Reply; Separate Brief. A petition or 

answer must not exceed 5,200 words if produced using a computer or 20 

pages if handwritten or typewritten. A reply must not exceed 2,600 words if 

produced using a computer or 10 pages if handwritten or typewritten. A 

separate brief supporting a petition, answer, or reply is not permitted. 

(d) Service and Filing. The Director must file the petition with the clerk of 

court through CM/ECF and must serve a copy of the petition on the named 

respondents, all other parties before the Board or arbitrator, and the Board 

or arbitrator.

(e) Notice of Docketing. On receipt, the clerk of court will enter the petition on 

the docket as a miscellaneous case and notify the Director, the named 

respondents, all other parties before the Board or arbitrator, and the Board 

or arbitrator of the docketing date.

(f) Appearance by Other Than the Named Respondent. The Board or 

arbitrator and any other party to the proceeding desiring to participate in the 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 164

proceeding in this court must enter an appearance. Anyone entering an 

appearance will be deemed a respondent.

(g) Answer; Appendix; Reply. Within 21 days after service of a petition, any 

respondent may file an answer. The answer may include an appendix 

containing any relevant portion of the record on review not included in the 

appendix to the petition; the appendix may also include documents or 

affidavits not part of the record on review that are relevant to the 

determination that the decision will have substantial impact. Within 14 days 

after service of an answer, the Director may file a reply.

(h) Action by the Court. Granting a petition for review is at the discretion of 

the court. On receipt of an order granting review, the clerk of court must 

enter the petition for review on the general docket. The petition for review 

will then proceed as if filed under Federal Rule of Appellate Procedure 15.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 165

Federal Circuit Rule 47.10

Rule 47.10. Dismissal of a Bankruptcy Stay Case

An appeal stayed in accordance with the bankruptcy stay provisions of 11 U.S.C. § 

362 may be dismissed by the clerk of court without prejudice to the appellant 

reinstating the appeal within 30 days after the stay is lifted or the bankruptcy 

proceeding ends.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 166

Federal Circuit Rule 47.11

Rule 47.11. Quorum

A quorum is a simple majority of a panel of the court or of the court en banc. In 

determining whether a quorum exists for en banc purposes, more than half of all 

circuit judges in regular active service, including recused or disqualified judges, 

must be eligible to participate in the en banc process. If a judge of a panel that has 

heard oral argument or taken under submission any appeal, petition, or motion is 

unable to continue with consideration of the matter because of death, illness, 

resignation, incapacity, or recusal, the remaining judges will determine the matter 

if they are in agreement and no remaining judge requests the designation of 

another judge. If the remaining judges are not in agreement or if any remaining 

judge requests the designation of another judge, the remaining judges will promptly 

advise the chief judge who will secure another judge to sit with the panel. 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 167

Federal Circuit Rule 47.12

Rule 47.12. Action for Judicial Review Under 38 U.S.C. § 502

(a) Time for Filing. An action for judicial review under 38 U.S.C. § 502 of a rule 

and regulation of the Department of Veterans Affairs must be filed with the 

clerk of court within 60 days after issuance of the rule or regulation or denial 

of a request for amendment or waiver of the rule or regulation.

(b) Parties. Only a person or persons adversely affected by the rule or regulation 

or the rulemaking process may bring an action for judicial review. The 

Secretary of Veterans Affairs must be named the respondent.

(c) Contents. The action for judicial review must describe how the person or 

persons bringing the action are adversely affected and must specifically 

identify either:

(1) the rule, regulation, opinion, or order of the Department of Veterans 

Affairs separately stated and published in the Federal Register 

pursuant to 5 U.S.C. § 552(a)(1) on which judicial review is sought; or

(2) the notice-and-comment rulemaking process by the Department of 

Veterans Affairs pursuant to 5 U.S.C. § 553 on which judicial review is 

sought.

(d) Procedure. Except as provided in this rule, the procedures applicable to an 

action for judicial review under 38 U.S.C. § 502 are the same as those for a 

petition for review under Federal Rule of Appellate Procedure 15.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 168

Federal Rule of Appellate Procedure 48

Rule 48. Masters

(a) Appointment; Powers. A court of appeals may appoint a special master to hold 

hearings, if necessary, and to recommend factual findings and disposition in 

matters ancillary to proceedings in the court. Unless the order referring a matter to 

a master specifies or limits the master’s powers, those powers include, but are not 

limited to, the following:

(1) regulating all aspects of a hearing;

(2) taking all appropriate action for the efficient performance of the master’s duties 

under the order;

(3) requiring the production of evidence on all matters embraced in the reference; 

and

(4) administering oaths and examining witnesses and parties.

(b) Compensation. If the master is not a judge or court employee, the court must 

determine the master’s compensation and whether the cost is to be charged to any 

party.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 169

Federal Circuit Rule 49

Rule 49. Seal of the Court

The clerk of court is the keeper of the seal, which is the means of authentication of 

all records and certificates issued from this court.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 170

Federal Circuit Rule 50

Rule 50. Employee and Former Employee

No employee of the court may engage in the practice of law. No former employee of 

the court may participate or assist, by representation, consultation, or otherwise, in 

any case that was pending in the court during the period of employment. For 

purposes of this rule, a person serving at the court as an intern, whether in a 

judge’s chambers or otherwise, is considered an employee of the court, whether such 

service is for pay, for law school credit, or voluntary.

Practice Notes

ALL FUTURE PARTICIPATION AND ASSISTANCE PROHIBITED. A former 

employee of the court is prohibited from participating or assisting in any case after 

employment with the court if the case was before this court at any point during the 

person’s employment. Thus, for example, a former employee is prohibited from 

participating or assisting in a case in a trial forum, agency, or other forum if the 

case was before this court during the person’s employment and was remanded by 

this court or otherwise continued in the trial forum, agency, or other forum for any 

other reason. A former employee is also prohibited, for example, from participating 

or assisting in the case if it is subsequently before this court again or if it is before 

the Supreme Court of the United States. In addition to Rule 50, former employees 

should also consult any applicable local bar rules and Canon 3(d) of the Code of 

Conduct for Judicial Employees.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 171

Federal Circuit Rule 51

Rule 51. Complaint of Judicial Misconduct or Disability

The procedures for processing a complaint of judicial misconduct or disability are 

pursuant to 28 U.S.C. § 351, et seq. The clerk of court will provide copies of these 

procedures on request.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 172

Federal Circuit Rule 52

Rule 52. Fees

(a) Judicial Conference Schedule of Fees.

(1) General. The fees charged by the clerk of court must be the fees 

prescribed by the Judicial Conference of the United States pursuant to 

28 U.S.C. § 1913 or by this rule. No fees are to be charged for services 

rendered on behalf of the United States, with the exception of those 

specifically prescribed in subsections (3)(B), (D) and (E) of this rule. No 

fees under this schedule shall be charged to federal agencies or

programs which are funded from judiciary appropriations, including, 

but not limited to, agencies, organizations, and individuals providing 

services authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, 

and Bankruptcy Administrator programs. Fees paid to the court by 

attorneys must be made through CM/ECF using pay.gov.

(2) Docketing Fee. The docketing fee will be paid to the trial court clerk 

of court on filing a notice of appeal in that court. The docketing fee will 

be paid to this court’s clerk of court on filing any other proceeding, 

including an appeal or petition for review from the Patent and 

Trademark Office or the Merit Systems Protection Board, or any other 

agency, and including an extraordinary writ.

(3) Judicial Conference Schedule of Fees. The fees charged by the 

court pursuant to the Judicial Conference Schedule of Fees are posted 

on the court’s website. 

(4) Electronic Public Access Fee Schedule. The fees for electronic 

public access are authorized by 28 U.S.C. § 1913 and promulgated in 

the Judicial Conference Electronic Public Access fee schedule.

(b) Copies of Opinions. All court opinions are available on the court’s website

or PACER without charge. Printed copies of court orders and opinions are 

subject to the Electronic Public Access fee schedule, and are available without 

cost to those persons and organizations whose names are on a public interest 

list established by order of the court. 

(c) Fees To Be Paid in Advance. The clerk of court is not required to docket 

any proceeding or perform any other service until all fees due the clerk of 

court are paid unless a party has been granted leave to proceed in forma 

pauperis.

(d) Dismissal of Appeal or Petition for Failing To Pay Docketing Fee. If a 

proceeding is docketed without prepayment of the docketing fee, the 

appellant or petitioner must pay the fee within 14 days after docketing. If the 

clerk of court does not receive the docketing fee, a completed motion for leave 
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 173

to proceed in forma pauperis, or a completed Form 6B within 14 days of the 

date of docketing of the appeal or petition, the clerk of court is authorized to 

dismiss the appeal or petition.

(e) Online payments; Checks. Counsel shall use pay.gov to make payments for 

all applicable fees. Instructions for use of pay.gov are available on the court’s 

website. For matters that are not paid through pay.gov, and for pro se parties 

who do not use CM/ECF, checks in payment of fees must be made payable to 

the Clerk of Court, United States Court of Appeals for the Federal Circuit.

Practice Notes

NO REFUND OF FEES. Fees are deposited with the Treasury Department on 

receipt. The clerk of court cannot refund any fee once it is deposited.

CHECKS AND DRAFTS. Checks and drafts are accepted subject to collection, and 

full credit will be given only when the check or draft is accepted by the financial 

institution on which it is drawn.

DOCKETING FEE AND COSTS IN A CASE INVOLVING A CLAIM UNDER 

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT OF 1994. The docketing fee does not have to be paid, and no costs 

are taxed, in a petition for review of a decision of the Merits Systems Protection 

Board if the underlying appeal involved a claim under the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA)). 38 U.S.C. § 4323,

4324. The petitioner must complete Form 6B to inform the court that the case 

involves a claim under USERRA.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 174

Federal Circuit Rule 53

Rule 53. Judicial Conference

There will be held, at a time and place designated by the chief judge, a conference to 

consider the business of the court and to advise means of improving the 

administration of justice. The chief judge presides at the conference. All members of 

the bar of the court may be members of the conference and may participate in its 

discussions and deliberations. Registrants must pay a fee to be applied to the 

payment of expenses of the conference.
United States Court of Appeals for the Federal Circuit, Rules of Practice, Revised December 2017 175

Federal Circuit Rule 54

Rule 54. Library

(a) General. The library in the Howard T. Markey National Courts Building serves 

this court and the United States Court of Federal Claims.

(b) Authorized Users. The library’s authorized users are limited to:

(1) the judges of the courts;

(2) their court staff;

(3) members of the bars of either court;

(4) pro se litigants with pending cases in either court;

(5) attorneys employed by the United States; and

(6) employees of the Administrative Office of the United States Courts and 

the Federal Judicial Center.

(c) Suspension; Closing. The librarian may suspend an authorized user for cause 

and may, when warranted, close the library to all except judges and the court staff.

(d) Books: Check Out and Removal. Only judges and the court staff may check out 

books from the library. Library books must not be removed from the premises of the 

Howard T. Markey National Courts Building without express permission from the 

librarian
FEDERAL CIRCUIT ATTORNEY 

DISCIPLINE RULES
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 177

FEDERAL CIRCUIT ATTORNEY DISCIPLINE RULES

INTRODUCTION

The United States Court of Appeals for the Federal Circuit, in furtherance of its 

power and responsibility under Federal Rule of Appellate Procedure 46 and its 

inherent power and responsibility to supervise the conduct of attorneys who are 

members of its bar, promulgates the following Attorney Discipline Rules.

The rules contemplate that a disciplinary proceeding stemming from most 

misconduct that occurs before a merits or motions panel will be conducted by that 

panel. A proceeding stemming from more serious misconduct, based on conviction of 

a serious crime, or imposing reciprocal discipline will be conducted by a Standing 

Panel on Attorney Discipline composed of three judges. In conformance with 

Federal Rule of Appellate Procedure 46, a hearing, if requested, will be available in 

any proceeding. The record in an ongoing proceeding will be confidential unless 

otherwise ordered. At the conclusion of a proceeding in which discipline is imposed, 

the final order and the record will be made a public record. A final order issued by a 

panel will be reviewable in a manner analogous to review under Federal Rules of 

Appellate Procedure 35 and 40.

Rule 1. Definitions

(a) Another Court. Another court means any Court of the United States or any 

court of a state, the District of Columbia, a territory, or a commonwealth of 

the United States. For purposes of these rules, another court also includes 

the United States Court of Appeals for Veterans Claims and the United 

States Court of Federal Claims.

(b) Agency. Agency means any agency of the United States as defined in 5 

U.S.C. § 551.

(c) Serious Crime. Serious crime means (1) any felony or (2) any lesser crime a 

necessary element of which, as determined by statutory or common law 

definition of such crime in the jurisdiction where the conviction occurred, is 

(i) interference with the administration of justice, (ii) false swearing, (iii) 

misrepresentation, (iv) fraud, (v) willful failure to file an income tax return, 

(vi) deceit, (vii) bribery, (viii) extortion, (ix) misappropriation, (x) theft, or (xi) 

an attempt or conspiracy or solicitation of another to commit a serious crime.

Rule 2. Grounds for Discipline

(a) Conviction. Conviction in another court of a serious crime may be the basis 

for discipline.
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 178

(b) Disbarment or Suspension. Reciprocal discipline may be imposed based on 

disbarment or suspension by another court or by an agency.

(c) Resignation. Disbarment may be imposed based on an attorney’s 

disbarment on consent or resignation from the bar of another court or an 

agency while an investigation into an allegation of misconduct is pending.

(d) Act or Omission. An act or omission by an attorney that violates the 

Federal Rules of Appellate Procedure, the Federal Circuit Rules, these rules, 

or orders or instructions of the court, other than an act or omission 

contemplated by Rule 3(d) of these rules, may be the basis for discipline. A 

failure to notify the court in compliance with Rule 6(a) may itself be the basis 

for discipline.

(e) Conduct Unbecoming. Any conduct before the court unbecoming a member 

of the bar may be the basis for discipline.
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 179

Rule 3. Types of Discipline

(a) Discipline for Misconduct. Discipline for attorney misconduct may consist 

of disbarment, suspension for a definite period, monetary sanction, public 

reprimand, private reprimand, or any other disciplinary action that the court 

deems appropriate.

(b) Disbarment. Disbarment is the presumed discipline for conviction of a 

serious crime.

(c) Reciprocal Discipline. The imposition of reciprocal disbarment or 

suspension is the presumed discipline based on the disbarment or suspension 

of an attorney by another court or an agency. Disbarment based on an 

attorney’s disbarment on consent or resignation from a bar of another court 

or an agency while an investigation into an allegation of misconduct is

pending constitutes reciprocal discipline.

(d) Sanctions under other Provisions. Assessment of damages, costs, 

expenses, or attorney fees under Federal Rule of Appellate Procedure 38, 28 

U.S.C. § 1927, or similar statutory provision are not disciplinary sanctions 

within the meaning of these rules and are not governed by these rules.

Rule 4. Disciplinary Matters Referred to the Court

(a) Docketing. The Clerk shall maintain a miscellaneous attorney disciplinary 

matter docket and shall assign a number to each matter.

(b) Merits or Motions Panel. When attorney misconduct under these rules 

occurs within the context of a case before a merits panel or a motions panel, 

that panel may impose any discipline except disbarment, suspension, or a 

monetary sanction over $1,000. The proceeding is conducted in accordance 

with Rule 5. In lieu of conducting its own proceeding a majority of the panel 

may refer the matter to the Standing Panel on Attorney Discipline.

(c)Standing Panel on Attorney Discipline.

(1) The Standing Panel shall conduct proceedings in any matter in which 

disbarment, suspension, or a monetary sanction over $1000 may be 

considered, or in any matter referred by a merits or motions panel.

(2) The Standing Panel shall consist of three judges, at least two of whom 

shall be active judges, appointed by the Chief Judge. The Chief Judge may 

serve as a member of the Standing Panel. The initial appointments shall 

be for one, two, and three year terms, so that the members’ terms are 
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 180

staggered. Thereafter, a member shall be appointed for a three-year term. 

A member who has served on the Standing Panel for three years shall not 

be eligible for appointment to another term until three years after 

termination of his or her last appointment.

(3) The chairperson of the Standing Panel shall be the senior active judge.

(4) If a member of the Standing Panel is unable or unavailable to hear a 

particular matter, the Chief Judge shall appoint another judge to be a 

member of the Standing Panel for that matter. If a member of the 

Standing Panel is unable to complete the remainder of his or her term for 

any reason, e.g., retirement, incapacity, death, the Chief Judge shall 

appoint another judge to serve the remainder of the term.

Rule 5. Merits/Motions Panel or Standing Panel Procedure

(a) Representation. An attorney may be represented by counsel in any 

disciplinary proceeding. Counsel must enter an appearance promptly, and in 

any event prior to submitting any documents or at least 14 days before 

appearing at a hearing, whichever is earlier. Except as provided by Federal 

Circuit Rule 46(d), counsel must be a member of the bar of this court.

(b) Show Cause Order. Any panel may issue an order describing an attorney’s 

misconduct and ordering the attorney to show cause (1) why a specific 

discipline should not be imposed or (2) why a discipline to be determined 

later should not be imposed. Unless otherwise ordered, a response shall be 

due within 30 days. Any request for a hearing shall be included in a response.

(c) Uncontested Matter. If an attorney does not respond to a show cause order 

or does not object to the imposition of a specified discipline, the Clerk may 

then issue a final order imposing such discipline.

(d) Contested Matter. If an attorney contests the imposition of discipline or 

requests a hearing, further proceedings shall be conducted in accordance with 

Rule 8.

(e) Referral to State Bar Association or Other Disciplinary Entity. The 

Standing Panel or any merits or motions panel may in its discretion refer a 

pending disciplinary matter or a matter that has been concluded to an 

appropriate state bar association or other disciplinary entity.

(f) Final Order. At the conclusion of a proceeding, a panel shall issue a final 

order in the matter. The order may direct the attorney or the Clerk to send a 

copy of the order to all other courts and agencies before which an attorney is 
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 181

admitted. The Clerk may also be directed to notify the American Bar 

Association’s National Lawyer Regulatory Data Bank of the discipline.

(g) Review by the Panel or the Active Judges of the Court. An attorney 

may file a petition for rehearing by the panel or a combined petition for 

rehearing by the panel and suggestion for rehearing by the active judges of 

the court, or a majority of the active judges may order that a disciplinary 

matter be heard or reheard by them. Such a hearing or rehearing is not 

favored and ordinarily will not be ordered except when necessary to secure or 

maintain uniformity of the court’s decisions or when the proceeding involves 

a question of exceptional importance. Any such petition shall be filed within 

30 days of the date of the panel’s final order. The procedures governing a 

petition for rehearing or a combined petition/suggestion will otherwise be in 

accordance with the provisions of Federal Rules of Appellate Procedure 35 

and 40 and Federal Circuit Rules 35 and 40.

Rule 6. Conviction or Discipline Imposed by Another Court or an Agency

(a) Duty of Attorney to Notify. An attorney who is a member of the bar of this 

court shall notify the Clerk in writing within 14 days of the member’s (1) 

conviction of a serious crime, (2) disbarment or suspension by another court 

or by an agency, or (3) disbarment on consent or resignation from the bar of 

another court or an agency while an investigation into an allegation of 

misconduct is pending. Upon receipt of such information, the Clerk shall 

follow the procedures set forth in Rule 7.

(b) Notification from Another Court or Agency; Sua Sponte. Upon receipt 

of a copy of a judgment, order, or other document demonstrating that a 

member of the bar of this court has been disbarred or suspended from the 

practice of law by another court or an agency, or has resigned while an 

investigation into an allegation of misconduct is pending, the Clerk shall 

follow the procedures set forth in Rule 7.

Rule 7. Proceedings for Reciprocal Discipline or Conviction of Serious 

Crime

(a) Show Cause Order. On notification of an attorney’s disbarment or 

suspension by another court or agency, the Clerk shall issue a show cause 

order why the court should not impose the identical discipline. On 

notification of an attorney’s conviction of a serious crime or resignation from 

the bar of another court or agency while a misconduct investigation is 

pending, the Clerk shall issue a show cause order why disbarment should not 

be imposed.
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 182

(b) Response. Unless otherwise ordered, a response to a show cause order shall 

be due within 30 days. The response should be in an envelope marked “Direct 

to Chief Deputy Clerk” or e-mailed to chiefdeputyclerk@cafc.uscourts.gov and 

should indicate the docket number of the matter. Any request for a hearing 

shall be included in a response. In any response, the attorney must (1) list all 

bars to which the attorney is admitted, including all bar numbers and other 

bar identification information and (2) list all cases pending before this court 

in which the attorney is involved.

(c) Uncontested Matter. If an attorney does not object to the imposition of 

reciprocal discipline or does not respond to the show cause order, the Clerk 

may then issue a final order imposing such reciprocal discipline.

(d) Contested Matter. If an attorney contests the imposition of reciprocal 

discipline, further proceedings shall be conducted in accordance with Rule 8.

(e) Final Order and Further Review. At the conclusion of a proceeding, the 

Standing Panel shall issue a final order in the matter. Any further review 

will be in accordance with Rule 5(g).

Rule 8. Contested Proceedings

(a) No Request for a Hearing. If an attorney does not request a hearing in 

response to a show cause order, then the panel shall prepare the record 

consisting of the show cause order, the response, and any other documents 

obtained by the panel. If the record includes documents in addition to the 

show cause order and the response, then an attorney shall be given notice 

that he or she may inspect and copy the record at his or her expense and may 

file a supplemental response. Information will be withheld from an attorney 

only in extraordinary circumstances, e.g., for national security or criminal 

investigation reasons. Any supplemental response shall be due within 14 

days of the date of the notice concerning inspection and copying.

(b) Request for Hearing. On request by an attorney, except in cases of 

reciprocal discipline under Rule 2(b) or resignation under Rule 2(c) where the 

hearing shall be at the discretion of the panel, the panel shall schedule a 

hearing. A hearing scheduled by a merits or motions panel will be an oral 

hearing. If a merits or motions panel determines that an evidentiary hearing 

is necessary, that panel shall refer the matter to the Standing Panel. In 

matters that have not been referred by a merits or motions panel, the 

Standing Panel shall determine whether a hearing is oral or evidentiary. An 

attorney shall be given at least 30 days’ notice of the time, date, and place of 

a hearing.
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 183

(1) The record consists of the show cause order, the response, and any other 

documents obtained by the panel. If the record includes documents in 

addition to the show cause order and the response, then an attorney shall 

be given notice that he or she may inspect and copy the record at his or 

her expense. Information will be withheld from an attorney only in 

extraordinary circumstances, e.g., for national security or criminal 

investigation reasons.

(2) The Standing Panel may compel by subpoena the attendance of witnesses, 

including the attorney subject to the proceeding, and the production of 

documents.

(3) During an evidentiary hearing, an attorney shall be afforded an 

opportunity to cross-examine any witnesses called by the Standing Panel 

and to introduce evidence in defense or mitigation.

(4) A hearing shall be recorded on tape unless an attorney arranges to have a 

reporting service present at his or her own expense.

(c) Reciprocal Disciplinary Matter. Notification that an attorney has been 

disbarred or suspended by another court or agency shall establish that the 

conduct in fact occurred and that the discipline was appropriate unless an 

attorney shows that:

(1) the procedure was so lacking in notice or opportunity to be heard that it 

constituted a deprivation of due process; or

(2) there was such an infirmity of proof establishing the misconduct that it 

gave rise to the clear conviction that this court could not, consistent with 

its duty, accept as final the conclusion on the matter; or

(3) the imposition of the same discipline by this court would result in grave 

injustice; or

(4) the misconduct established is deemed by this court to warrant 

substantially different discipline.

(d) Conviction of a Serious Crime. Notification of a conviction of a serious 

crime shall be conclusive evidence of the commission of that crime for 

purposes of these disciplinary proceedings. If an attorney notifies the court 

that a conviction has been vacated or reversed, the Standing Panel shall 

promptly review the matter.

Rule 9. Reinstatement
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 184

(a) After Reciprocal Disbarment or Suspension. If disbarment by this court 

was based on a disbarment by another court or agency or a suspension was 

directed to run concurrently with a suspension ordered by another court or 

agency, then an attorney shall be eligible for reinstatement when the original 

discipline is lifted or expires. An attorney must submit an affidavit notifying 

this court of the action of the court that imposed the original discipline. The 

Clerk shall refer an attorney’s notification affidavit to the Standing Panel. 

Unless otherwise ordered, the Clerk shall issue an order reinstating the 

attorney within 14 days after reference to the Standing Panel.

(b) After Disbarment. An attorney who has been disbarred as a result of 

misconduct before this court may not apply for reinstatement until the 

expiration of five years from the effective date of the disbarment.

(c) After Suspension.

(1) An attorney who has been suspended with automatic reinstatement as a 

result of misconduct before this court may file an affidavit of compliance 

with the suspension order after the suspension period has expired. The 

Clerk shall issue an order reinstating the attorney within 14 days.

(2) An attorney who has been suspended conditioned on applying for 

reinstatement as a result of misconduct before this court may file an 

application after the suspension period expires.

(d) Application for Reinstatement. The Clerk shall refer an application for 

reinstatement to the Standing Panel. Any request for a hearing shall be 

included in an application. 

(1) The Standing Panel may issue an order granting an application or, if no 

hearing is requested, may issue an order denying an application.

(2) If the Standing Panel is not satisfied initially that reinstatement is 

appropriate and a hearing is requested, the Standing Panel shall schedule 

a hearing. The Standing Panel shall decide whether a hearing shall be 

oral or evidentiary. At a hearing the applicant has the burden of showing 

that he or she has the moral qualifications, competency, and learning in 

the law required for readmission and that the resumption of practice will 

not be detrimental to the integrity and standing of the bar or to the 

administration of justice.

(3) At the conclusion of a proceeding, the Standing Panel shall issue a final 

order. Further review shall be in accordance with Rule 5(g).
United States Court of Appeals for the Federal Circuit, Attorney Discipline Rules, Revised December 2017 185

(e) Successive Application. A successive application for reinstatement may 

not be filed until one year has elapsed after an adverse decision on an earlier 

application.

Rule 10. Access to Information

(a) Confidentiality during Proceedings. An ongoing disciplinary proceeding 

shall be confidential (1) unless the attorney subject to the proceeding 

requests that it be made a public record or (2) except to the extent that a 

panel may disclose the subject matter and status of a proceeding if the 

proceeding is based on a conviction of a serious crime, or an allegation that 

has become generally known to the public, or there is a need to notify another 

person or entity to protect the public, the legal profession, or the 

administration of justice.

(b) Confidentiality upon Issuance of a Final Order. A final order issuing a 

private reprimand or imposing no discipline and the record of those 

proceedings shall be confidential unless the attorney subject to the 

proceeding requests that it be made a public record. If other discipline is 

imposed, a final order and the record shall be made a public record at the 

time of issuance of a final order. However, a panel may issue a permanent

protective order prohibiting the disclosure of any part of the record to protect 

the interest of a complainant, a witness, a third party or nonparty, or the 

attorney.

Rule 11. Effective Date

These rules shall become effective February 1, 2016.
United States Court of Appeals for the Federal Circuit, Forms, Revised December 2017 186

FEDERAL CIRCUIT FORMS

http://www.cafc.uscourts.gov/rules-of-practice/forms/

Form 1 Notice of Appeal to the United States Court of Appeals for the Federal 

Circuit From a Judgment or Order of an United States District Court

Form 2 Notice of Appeal to the United States Court of Appeals for the Federal 

Circuit From a Judgment or Order of the United States Court of 

Federal Claims

Form 3 Notice of Appeal to the United States Court of Appeals for the Federal 

Circuit From a Judgment or Order of the Court of International Trade

Form 4 Notice of Appeal to the United States Court of Appeals for the Federal 

Circuit From a Judgment or Order of the United States Court of 

Appeals for Veterans Claims

Form 5 Petition for Review or Appeal of an Order or Decision of an Agency, 

Board, Commission, or Officer

Form 6 Motion and Declaration for Leave to Proceed in Forma Pauperis

Form 6A Supplemental in Forma Pauperis Form for Prisoners

Form 6B USERRA Notification Form

Form 7 Abrogated

Form 8 Entry of Appearance

Form 9 Certificate of Interest

Form 10 Statement Concerning Discrimination

Form 11 Informal Brief (MSPB or Arbitrator Cases)

Form 11A Informal Brief of ProSe Appellee/Respondent

Form 12 Informal Brief (District Court, Court of International Trade, and 

Court of Federal Claims Cases)

Form 13 Informal Brief (Court of Appeals for Veterans Claims Cases)

Form 14 Informal Brief (Board of Contract Appeals, Board of Patent Appeals 

and Interferences, Trademark Trial and Appeal Board, and 

International Trade Commission Cases)

Form 15 Informal Brief (Secretary of Veterans Affairs Cases Under 38 U.S.C. 

§ 502)
United States Court of Appeals for the Federal Circuit, Forms, Revised December 2017 187

Form 16 Informal Brief (General Accounting Office Personnel Appeals Board, 

Office of Compliance, and Equal Employment Opportunity 

Commission Cases)

Form 17 Sample Brief Cover (MSPB Cases)

Form 18 Sample Brief Cover (District Court Cases)

Form 19 Certificate of Compliance with Rule 32(a)

Form 20 Application for Fees and Other Expenses Under the Equal Access to 

Justice Act

Form 21 Application for Admission to the Bar

Form 22 Transcript Purchase Order

Form 23 Bill of Costs Instruction Sheet

Form 24 Bill of Costs Form

Form 25 Mediator Application

Form 26 Docketing Statement

Form 27 Confidential Joint Request to Enter Appellate Mediation Program

Form 28 Confidential Mediation Survey for Parties

Form 29 Confidential Mediator Report

Form 30 Certificate of Service