I looked at Federal Circuit appellate dockets from the 10 most recent decided appeals (from District Court).
10/10: EVERY DOCKET included at least one paper that had to be re-filed because of errors. pic.twitter.com/OovbF1t6og
— Dennis Crouch (@patentlyo) April 27, 2021
Thanks for bringing visibility to this. I’ve practiced in at least four of the eleven circuits, and no other clerks’ office has such byzantine, arbitrary, confusing rules. I had three filings rejected on my most recent appeal. If you are a small firm, I strongly recommend that you (your client) spend the money and hire one of those specialty outfits to prepare/review your filings. (You’ll receive their solicitations when you file your notice of appeal).
I wonder if this is an artifact of attorneys working from home. With limited review or supervision by senior counsel. And lack of easy access to support staff who would catch these errors.
This goes back many, many years, to the pre-ecf times. Historically, the Federal Circuit clerk’s office likes nothing better than rejecting pleadings, sometimes based on actual rules, but often based on things they just make up. As the court’s rules and procedures become more complex, the clerk’s office gains new excuses to reject pleadings. Each successive clerk has been worse than the one before. Practice before any other court, and the FedCir quickly looks idiosyncratic and petty I wonder if the judges have anything to do with this, or if it’s all clerk-initiated.
I have also head this from other attorneys.
I suspect this has gone on for as long as it has because there are few ways to complain effectively. In the pre-ECF days, rejected briefs had to be reprinted or “corrected” by hand in the clerk’s office sometimes with stickers.
If the clerk’s office issues a BS rejection, it’s always easier to just submit a “corrected” filing than to push back or file a motion asking a judge to direct the clerk to accept the pleading.
2 examples of recent things they’ve done unnecessarily:
1. At some point, the got some software that allowed the judges to look up appendix citations quickly by hyperlinking the PDF versions of the briefs. But the software only worked if the appendix citations were formatted a certain way. “Appx123-124,” NOT, e.g., “Appx123-24,” “Appx123-Appx124,” or “Appx 123-124,” or A123-124. Instead of explaining this or making a rule, the clerk’s office posted a “best practices” memorandum on the website and started rejecting briefs left and right based on this supposed “best practice.” After a few months (probably after they got tired of receiving angry or confused phone calls in every single case), they added this to the rules.
2. FRAP 28(a)(8)(B) requires briefs to include standards of review. Many appellate briefs put in a separate subsection between the summary of the argument and the argument. The clerk’s office has recently decided that the rule requires standard of review to appear after the “argument” heading, possibly as an argument subsection, and that noncompliant briefs get rejected. I can’t imagine any judge asked them to do this, so it’s likely just more fodder for the clerk’s offices’ internal game of rejection bingo.
Also, as you’ve alluded to on twitter, their forms are poorly written, and they love to reject forms that they think should be filled out differently.
Also, some firm partners drafting the briefs but turning over to young associates finalizations and filings paperwork.
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