What happens to my
motion after it is filed?
The clerk's office stamps the motion as "received" and reviews
the motion for compliance with the court's rules, primarily Fed.
R. App. P. 27 and Fed. Cir. R. 27. If it is in substantial
compliance, the motion is "filed." If the motion requests relief
that may be granted by the clerk, see Fed. Cir. R. 27(h), then
the clerk may grant the motion or may refer it to the senior
staff attorney's office (SSA).
For motions that are filed before a case is scheduled on a
calendar, the SSA prepares orders for signature of the clerk or
a judge. Motions
that are filed after a case is scheduled for a calendar are
transmitted directly to the judges on the merits panel. Internal
Operating Procedure (IOP)
# 2.
If the motion is transmitted to the SSA, then the SSA prepares
an order. Each month, one judge serves as the lead motions
judge. Certain motions can be resolved solely by the lead
motions judge, and others require disposition by a panel of
judges. The order is reviewed, signed, filed, and processed by
the court. A copy is mailed to each pro se party or to principal
counsel. If immediate action is required as a result of the
order, principal attorneys may be called. See Practice Note to
Fed. Cir. R. 27. Summaries of orders are also entered on the
court's PACER system daily.
When should I file a motion?
Unless the court is closed, the clerk's office is open from 9
a.m. to 5 p.m. each business day. There is also a night box
located in the building garage entrance. See Practice Note to
Fed. Cir. R. 25. Motions may also be mailed to the clerk's
office.
You should file a motion as soon as you are aware of the need
for relief. Given the large number of motions filed each month,
the prompt filing of the motion will help ensure a more timely
disposition.
Certain motions have express deadlines. For example, absent
"extraordinary circumstances," a motion for an extension of time
to file a brief must be filed at least seven calendar days
before the due date of the brief. Fed. Cir. R. 26(b)(1).
Generally, a motion to dismiss an appeal should be filed before
the appellant's or petitioner's brief is filed. Fed. Cir. R.
27(f).
A motion for reconsideration of a procedural order must be filed
within 14 days of filing of the order. Fed. Cir. R. 27(k). A
motion for reconsideration or a petition for rehearing of a
dispositive order must also be filed within 14 days of the date
of filing of the order, except that if the United States or its
officer or agency is a party, the motion must be filed within 45
days. Fed. Cir. R. 27(l); Fed. R. App. P. 40(a).
What information and material should be included with a motion?
The required items are set forth in Fed. R. App. P. 27(a) and
Fed. Cir. R. 27(a). One requirement that is often overlooked is
that all relevant documents should be attached to a motion. For
example, if your motion discusses a trial court opinion or trial
exhibit, you should attach a copy of that document if relevant.
Fed. R. App. P. 27(a)(2)(B). Because the trial court or agency
maintains the official record, it is not immediately available
to this court. Fed. Cir. R. 11; Fed. Cir. R. 17.
You should adequately explain the reasons for your request for
relief in the motion. For example, if you are requesting an
extension, you should explain in sufficient detail the reasons
why you are unable to timely file your brief. If counsel is
requesting a change of a scheduled date of oral argument,
counsel must state with particularity the reasons why counsel is
not available for the scheduled date. Please be aware that the
briefs are generally forwarded to the merits panel approximately
six weeks before the scheduled oral argument date, and the
judges and their staff expend a great deal of effort preparing
the case. Motions to delay proceedings are thus not favored by
the court. Because many conflicts can be anticipated, it is
preferred that counsel inform the clerk's office in advance by
letter concerning dates that would not be convenient for oral
argument. See Practice Note to Fed. Cir. R. 34.
How can I find out the status of my motion?
The court's PACER system is updated daily with new entries.
There is a link to PACER on the court's website. Telephone
inquires to the clerk's office "are discouraged because they
divert the staff from more pressing duties." Practice Note to
Fed. Cir. R. 27. Under no circumstances should anyone call a
judge or the senior staff attorney's office about a motion.
Counsel frequently call the clerk's office concerning the status
of a motion for an extension of time. Generally, you can obtain
a more prompt disposition of an extension motion if you first
obtain consent of the opposing side. An unopposed motion for an
extension of time, up to 60 days for each principal brief and up
to 30 days for other deadlines, can be granted promptly by the
clerk of court. Fed. Cir. R. 27(h)(4). Otherwise, the motion
must usually be decided by a judge.
