By Dennis Crouch
The Federal Circuit has earned a reputation as the most technically demanding appellate court in the federal system when it comes to procedural compliance. I regularly review federal court dockets and continue to be astounded by the prevalence of filing errors and subsequent correction requirements in Federal Circuit appeals – even among the nation’s most sophisticated appellate practitioners. The situation has become so routine that finding a Federal Circuit appeal without at least one notice of non-compliance is more noteworthy than finding one with multiple filing corrections. The court’s exacting standards create a procedural gauntlet that seems designed to catch all but the most careful attorneys willing to check in with the clerks office before each filing. Although I have not done a comprehensive study, my experience is that the Federal Circuit clerk’s office rejects filings as non-compliant much much more often than any other Circuit Court of Appeal.
In 2023 the Federal Circuit Clerk’s Office issued a memo detailing “Common Filing Errors” – apparently recognizing the scope of the problem and attempting to push the responsibility onto the filers. However, the practitioners continue to demonstrate the exact same errors as those cited in the memo. It’s as if many folks didn’t get the memo – quite literally. That said, given the consistently high caliber of counsel involved and the monetary importance of these appeals, a substantial part of the difficulty may well lie with the clerk’s office’s approach rather than with the practitioners.
Let’s examine some particularly telling examples:
Consider the case of Trustees of Columbia University v. Gen Digital Inc. (2024-1243), where counsel – representing one of the nation’s premier academic institutions – managed to trigger multiple notices for basic formatting errors. These included improper appendix citations (using “JA57” instead of the required format) and failing to identify confidential material in the particular manner required by rule. [Example 1]
The pending Google LLC v. Sonos, Inc. (2024-1097) appeal also involves multiple prestigious firms who found themselves receiving notices for issues ranging from improper caption formats to mismatched attorney contact information. Perhaps most notably, the amicus briefs filed in the case faced repeated rejections for failing to properly indicate support for affirmance or reversal on the brief cover – a requirement that seems straightforward but repeatedly trips up experienced practitioners. [Example 2]
BillJCo, LLC v. Apple Inc. (2023-2189) presents what I would call a perfect storm of procedural missteps. The case accumulated notices for improper document splitting, incorrect brief organization, non-searchable PDFs, and missing appendix pages. The attorneys also managed to physically bind one paper copy on the wrong margin of the document. [Example 3]
The Clerk’s Office Memo identified six primary categories of recurring errors:
- Form Completion Issues: The seemingly simple task of filling out standard forms has become a significant source of error. The court requires precise completion of various forms, including Entries of Appearance (Form 8A) and Certificates of Interest (Form 9). Yet practitioners regularly submit incomplete or outdated versions. In Khan v. Merit Medical Systems, Inc. (2023-2329), counsel received multiple notices for various form-related deficiencies along these lines, including improper certification information.
- Addenda Requirements: A March 2023 amendments to Federal Circuit Rules 28(a)(11) and 28(c) appear to have created additional confusion. The rules now require specific inclusion of judgments, orders, and complete patents in addenda, with precise pagination requirements. EcoFactor, Inc. v. Google LLC (2024-1027) appeal demonstrates this challenge, with multiple notices issued for impermissible addendum content.
- Document Correction Procedures: Perhaps most frustrating is the requirement to properly label corrected documents. Federal Circuit Rule 25(i)(2) requires that corrected documents indicate “corrected” in the title or on the cover. In Personal Audio, LLC v. Google LLC (2024-1020), counsel failed to include this simple designation, requiring a round of corrections to the corrections.
- Contact Information Management: The court’s insistence on precise matching between PACER account information and CAFC filing information is also a significant burden. In a number of cases, including Lynk Labs, Inc. v. Samsung Electronics Co., Ltd. (2023-2346), multiple attorneys received notices for mismatched contact information – a seemingly minor issue that nonetheless required corrective action.
- Confidentiality Requirements: Confidential filings must be paired with public versions that are appropriately redacted with adequate descriptors and with a Certificate of Confidential Material. In Clearplay, Inc. v. DISH Network L.L.C. (2023-2134), counsel struggled with these requirements, receiving multiple notices for improper handling of confidential materials.
- Caption Compliance: The requirement to use the court’s official caption exactly as provided has tripped up numerous practitioners. Example is in Rodriguez Thomas v. US (2023-2154) showing that even very slight deviations from the official caption can trigger notices of non-compliance.
What makes this situation particularly noteworthy is that these errors aren’t coming from inexperienced practitioners or pro se litigants. These are some of the nation’s premier law firms and most experienced Federal Circuit practitioners. When firms like Sullivan & Cromwell, WilmerHale, or Fish & Richardson regularly receive notices of non-compliance, it suggests a systemic issue rather than mere carelessness. These folks are not asking ChatGPT to draft their forms and briefs.
The practical implications are significant. In addition to the client embarrassment, each notice of non-compliance requires additional attorney time, increases client costs, and potentially delays proceedings. I would not be surprised if this added $500,000 in attorney time over the past year. I also have some concern that this zealous focus on technical requirements may overshadow the substantive legal issues at stake. While precision in legal filings is certainly important, the question becomes whether the current level of technical scrutiny serves the interests of justice or merely creates procedural busy work. Although the Clerk Office’s memo represents an effort to address these issues, but its very existence highlights the problem’s scope with six pages of specific requirements associated with common non-compliance issues.
Some ideas:
- The court could consider implementing a more robust electronic filing system with built-in compliance checks. Many of the current issues – from caption matching to form completion – could be addressed through automated verification.
- Alternatively, the court might try a period of more flexible enforcement — and see if any actual problems ensue. If not, the court may more generally reconsider whether all of the current technical requirements truly serve necessary purposes.
What’s clear is that the current situation is suboptimal for all involved. The court’s clerk’s office expends significant resources issuing notices and reviewing corrected filings. Practitioners face anxiety about technical compliance, and clients ultimately bear the costs of these procedural complications.
Some additional examples from my records:
- The form is incomplete. There is no response to the following section: see Clerk’s note. All items must provide an answer or include “none” or “N/A” where appropriate. Current versions of all forms are available on the court’s website at Forms. Fed. Cir. R. 47.3(a)(6) (Form 8A, 8B).
- Addendum material must adhere to the pagination requirements of Fed. Cir.
R. 28(c)(2). Refer to the court’s Electronic Filing Procedures (“Appendix
Formatting”) for acceptable pagination formats. - All forms must be filed [in PACER] independently of each other using the
appropriate event selection. - Only one attorney may serve as principal counsel for each party. Fed. Cir. R.
47.3(b)(1). - The filing is not completely text-searchable. When refiling a corrected version
of this document, please make the document text-searchable in its entirety.
Fed. Cir. R. 25(a)(1)(A). Refer to the court’s Electronic Filing Procedures
(“Portable Document Format (PDF)”). - Any reference in a brief to the underlying record or to material authorized to
be included in an appendix must be to the corresponding appendix page
number(s) and follow the format prescribed by the court’s Electronic Filing
Procedures (“Appendix Formatting”). Fed. Cir. R. 28(f); Fed. Cir. R. 29(c).
Appx0064, 868 on page 15 is an example of improper format. - All counsel whose names appear on a filing must submit an entry of
appearance (except for supervisory government officials listed in an ex officio
capacity). Fed. Cir. R. 47.3(b)(1). - Appx3093, Appx3095-96 are listed in the paragraph concerning
confidential information but are not in the non-confidential appendix. - The brief does not contain a statement of related cases. Fed. Cir. R. 28(a)(4);
Fed. Cir. R. 47.5. - The caption provided on the document does not follow the official caption
provided by the Clerk. The official caption can be found on the docket report.
Fed. Cir. R. 32(a) (documents submitted with a cover). - A multi-volume opening brief or appendix must have a volume number in
Roman numerals and the pages included in the volume at the top of the cover
of each volume. Fed. Cir. R. 28(c)(3); Fed. Cir. R. 30(a)(4). - The brief does not contain one or more exemplary patent claims illustrative of
the issue(s) on appeal on the inside front cover (or immediately following the
front cover if the language requires more space). Fed. Cir. R. 32(a)(3). - The cover of an amicus brief must indicate whether the brief supports
affirmance or reversal and must identify the party or parties supported or
indicate neither party. Fed. R. App. P. 29(a)(4). - The filing of a separate or supplemental appendix by any party is not
authorized without first obtaining leave of the court. Refer to Fed. Cir. R.
30(e) for exceptions. - The paper copies of the brief have an incorrect cover color. The cover of the
intervenor’s or amicus curiae’s brief must be green. Fed. R. App. P. 32(a)(2). - The motion does not contain a statement of consent/opposition. Fed. Cir. R.
27(a)(2). - Addendum material must adhere to the pagination requirements of Fed. Cir.
R. 28(c)(2). Refer to the court’s Electronic Filing Procedures (“Appendix
Formatting”) for acceptable pagination formats. Clerk’s Note: Some pagination is obscured by other text. - The contents of the appendix do not appear in the correct order. The appendix
must begin with the table of contents. All judgments, orders, agency actions,
or other decisions appealed from and any opinions, memoranda, or findings
and conclusions supporting them must be placed first in the appendix after
the table of contents and receive the first page numbers. Fed R. App. P. 30(d);
Fed. Cir. R. 30(b)(2)(B); Fed. Cir. R. 30(c)(1). Refer to Fed. Cir. R.
25.1(e)(1)(A) for an exception regarding protective orders. - Confidential material must be identified by using brackets or highlighting.
Fed. Cir. R. 25.1(e)(1)(A). Refer to the Practice Notes to Rule 25.1 (Noting
Confidential Material in the Confidential Version; Record Material That
Exists in Two Versions). - The nonconfidential version must describe the general nature of the
confidential material that has been deleted, with applicable page numbers, in
the table of contents, or in the introductory paragraph of the document if it
does not contain a table of contents. Fed. Cir. R. 25.1(e)(1)(B). Refer to the
Practice Notes to Rule 25.1 (Describing the General Nature of Confidential
Material Deleted from the Nonconfidential Version).