Federal Circuit Rule 27: Motions

(a) Contents and Format of a Motion.

In addition to the requirements under Federal Rule of Appellate Procedure 27(a)(2) and (d), a motion must include the following:

(1) 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);

(2) a statement of consent or opposition representing that the movant has discussed the motion with the other parties and stating whether any party will object or file a response;

(3) a certificate of interest under Federal Circuit Rule 47.4; and

(4) an affidavit or unsworn declaration under penalty of perjury under 28 U.S.C. § 1746, if the facts relied on in the motion are subject to dispute.

(b) Response; Reply.

If a motion uses the short caption, any response or reply may also use the short caption. In addition to the requirements under Federal Rule of Appellate Procedure 27(a)(3) and (d), a response must include the following:

(1) the items in Federal Circuit Rule 27(a)(1), (3), and (4); 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) Motion to Expedite.

In addition to the requirements for a motion under Federal Circuit Rule 27(a), a motion to expedite proceedings must include the following:

(1) the label “Motion to Expedite” on the cover or front page of the motion, either centered at the top or contained in the title;

(2) a proposed expedited briefing schedule on the motion; and

(3) a proposed expedited merits briefing schedule or proposed argument date, if applicable.

(d) Attachments or Exhibits.

Attachments or exhibits to a motion, response, or reply must be preceded by a table of contents and must be paginated or separately tabbed for ease of reference. The pagination need not match the requirements for an appendix under Federal Circuit Rule 30.

(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, Transfer, or Remand.

A motion to dismiss for lack of jurisdiction, to transfer, or to remand should be made as soon as the grounds for the motion are known.

After the appellant or petitioner has filed its principal brief, the argument supporting dismissal, transfer, or remand should be made in the response brief of the appellee or respondent. Any response to such an argument made in the response brief must be included in the reply brief. Joint or unopposed motions or stipulations to dismiss, transfer, or 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 or transferred. 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) Reconsideration, Vacatur, or Modification of an Order or Action.

A party seeking to reconsider, vacate, or substantively modify a dispositive order, opinion, or judgment issued by a panel must file a petition for panel, en banc, or panel and en banc rehearing within the time prescribed by Federal Circuit Rule 40(f). For nonsubstantive corrections to a dispositive order, opinion, or judgment, a party may file a motion to correct within fourteen (14) days after the order or action apart from any rehearing petition. For nondispositive orders or actions by the court, including by a single judge, a panel of judges, or the clerk of court, a party must file for relief within fourteen (14) days after the order or action.

(k) Motions Containing Confidential or Sealed Material.

Federal Circuit Rule 25.1 applies to confidential or sealed material in motions, responses, and replies.

Practice Notes to Rule 27

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 to withdraw counsel, and motions for leave to proceed in forma pauperis. Examples of nonprocedural motions include motions to dismiss, motions to remand, motions to transfer, motions to summarily affirm, motions for stays of injunctions, motions for injunctions, motions to strike, motions for leave to intervene, motions for leave to file briefs as amici curiae, etc. Motions to exceed the permitted word or page 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 sixty (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 Inquiries about Motions; Access to Orders on Website.

Telephone inquiries about pending motions are discouraged, and contacting the court will not expedite action on any motion. Most orders are considered routine and counsel will receive notification by Notice of Docket Activity as soon as the motion is decided. Counsel or the parties may determine the status of a motion and obtain copies of court orders through the court’s electronic filing system. Many pertinent orders are posted on the court’s website. Under no circumstances should parties or counsel telephone a judge, a judge’s chambers, or the office of the general counsel about a motion.

However, when filing an emergency matter or a motion for expedited consideration, parties or counsel should call the clerk’s office.

Motion to Expedite Proceedings.

While motions to expedite proceedings are not routinely granted, they may be filed in appropriate cases. A motion for expedited proceedings is the procedural vehicle to request accelerated consideration of an appeal or petition for review, and it should be filed immediately after docketing. Such a motion is appropriate where the normal briefing and disposition schedule may adversely affect one of the parties, as in appeals involving preliminary or permanent injunctions or government contract bid protests.