Federal Circuit Rule 26: Computing and Extending Time

(a) Computation of Time; Inaccessibility of the Clerk’s Office.

(1) Legal Holiday.

In addition to the definition under Federal Rule of Appellate Procedure 26(a)(6), “legal holiday” includes the day after Thanksgiving Day and any day on which the clerk’s office is closed by order of the court or the chief judge. The clerk of court will publicly post any order issued in accordance with this provision.

(2) Calculating Deadlines.

Unless otherwise ordered, the timeliness of any responsive document is computed from the date of service of the original submission, regardless of any corrections made by the party.

Should leave of the court be required to file a document, the deadline for any responsive document will be triggered by the court’s order on the motion for leave, unless otherwise ordered.

If a document is served on a Saturday, Sunday, or legal holiday, timeliness for any responsive document will be calculated from the next business day. Unless a time for filing is ordered by the court, filing must be completed before midnight Eastern Time on the due date to be considered timely.

(3) Inaccessibility of Nonelectronic Filing.

The clerk of court may provide notice that the clerk’s office is inaccessible for purposes of receiving nonelectronic filings and submissions, and deadlines for nonelectronic filings and submissions will be automatically extended in accordance with Federal Rule of Appellate Procedure 26(a)(3). Such notice will be posted publicly.

(4) Inaccessibility of Electronic Filing.

In the event of a scheduled system outage, unscheduled technical failure of the electronic filing system, or other matter preventing electronic filing, the clerk of court may provide notice that the clerk’s office is inaccessible and extend deadlines for electronic filings pursuant to Federal Rule of Appellate Procedure 26(a)(3). Such a notice will be posted publicly.

Electronic filing is not “inaccessible” for purposes of extending filing deadlines under Federal Rule of Appellate Procedure 26(a)(3) absent a notice issued pursuant to this subsection or an order entered pursuant to Federal Circuit Rule 26(a)(1).

(5) Court Order.

Federal Rule of Appellate Procedure 26(c) does not apply to deadlines set by court order.

(b) Extending 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 seven (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) In addition to the requirements under Federal Rule of Appellate Procedure 27 and Federal Circuit Rule 27, the motion must state the following:

(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.

(3) A request for an extension of more than fourteen (14) days must be accompanied by an affidavit or unsworn declaration of counsel or an unrepresented party under penalty of perjury under 28 U.S.C. § 1746 showing good cause for the extension.

(4) At any time before the expiration of a filing deadline, the filer may notify the court that additional time is needed to resolve confidentiality issues, and the court will provide a one-time per document extension of five (5) days to file the document. The notice must include an affidavit or unsworn declaration of counsel or an unrepresented party under penalty of perjury under 28 U.S.C. § 1746 certifying that additional time is needed to resolve confidentiality issues. Any additional requests for extension to resolve confidentiality issues are by leave of court.

(c) Electronic Service of Documents.

Three (3) additional days are not added to the time to file a responsive document, when the original document was served through the court’s electronic filing system. The court considers service through the court’s electronic filing system to be completed on the date and time reflected on the Notice of Docket Activity.

Practice Notes to Rule 26

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 (7) 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.

Deadlines for Documents Submitted by Mail.

Because of occasional delays with some mail transmitted by the United States Postal Service due to screening or other issues, if a document must be received by the court on a particular date, then a paper 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.