By Jason Rantanen
Earlier this month, the Federal Circuit released a set of proposed amendments to the Federal Circuit Rules of Practice and Procedure that completely overhaul the existing rules. These changes are extensive, with the summary alone filling six pages. The bulk of the proposed amendments focus on the shift from paper to electronic filing, with changes in both terminology and procedure. Other notes:
- The proposed rules revise the court’s approach to material deemed confidential. Parties will be able to designate up to 15 words in a brief “confidential” without needing to file a motion. More lengthy redactions require a motion “establishing that the additional confidentiality markings are appropriate and necessary pursuant to a statute, administrative regulation, or court rule.” (Rules 11(c), 17(e), 27(m), 28(d) and 30(h)).
- Several of the proposed amendments add language relating to the Certificate of Interest, emphasizing the requirement that a Certificate of Interest be included when filing all motions, including motions for a stay or injunction pending appeal (Proposed Rules 8(a)(4) and 26.1). In addition, the proposed amendments add more language requiring that Certificates be amended promptly when information changes. (Rule 26.1 and 47.4(b)). As someone pointed out, though, the Federal Circuit Rules already require a Certificate of Interest to be filed with each motion, petition, or response. See Fed. Cir. R. 47.4. Rule 47.4(c) also requires that if any of the information changes, the party must file an amended certificate within 7 days of the change. Does anyone know why all the redundant language is being added in Rules 8(a)(4), 26.1 and 47?
The court’s own summary of the proposed changes is available here: summary_of_proposed_rule_changes_dec_2015, with a redlined version of the actual edits available here: federal_circuit_rules_public_notice_dec_2015. Given their scale, it’s difficult to get a sense of the changes from the summary alone. I encourage folks who regularly practice before the court to read through the changes carefully, both for substance and areas of potential unintended error. If there are any areas of potential ambiguity or overcomplexity, now is the time to point them out. Comments on any of the proposed changes are due to the court by January 4.
In addition, the court’s website notes that “Reviewers may wish to note that the recent amendments to Rule 28(a)(12) and 28(f), and Rule 30(b)(4)(E), relating to the pagination and marking of appendices and supplemental appendices are final with an effective date of January 4, 2016.” These rules apply to all appeals docketed on or after Monday, January 4, 2016.