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tes that the use of Federal Rules of Appellate Procedure Form 6 is sufficient to satisfy the requirements of Rule 32(a)(7)(C)(i). That form is reproduced as Federal Circuit Form 16. Parties are reminded that some software programs do not automatically include footnotes. When certain text is marked for word count or line count purposes, a party may need to separately mark text in footnotes and include those words or lines in the certified count. It is the responsibility of the filing party to ensure that its certificate of compliance is accurate. Federal Rules of Appellate Procedure Federal Circuit Rule 66 Rule (2) No later than the time for filing a separate appendix under Federal Circuit Rule 30(a)(4), the parties must file one copy of either of the following (select only one): (A) a joint statement of compliance with this rule indicating that settlement discussions have been conducted; or (B) an agreement that the proceeding be dismissed under Federal Rule of Appellate Procedure 42(b). (b) Other Settlement Discussions. This rule does not preclude the parties from discussing settlement or agreeing to dismiss the proceedings at other times, including after oral argument but before decision. Rule 34. Oral Argument (a) Reply Brief Instead of Oral Argument. If an appeal is not called for oral argument and the appellant declined to file a reply brief in anticipation of replying during oral argument, the appellant may file a reply brief within 14 days after the notice that the appeal will be submitted on the briefs. (b) Time Allowed. The time allowed each side for oral argument will be determined by the court. The clerk will advise counsel of the time allotted. A party is not obliged to use all the time allowed. The court may terminate the argument if it deems further argument unnecessary. (c) Visual Aids. (1) Visual Aids Used at a Trial or Administrative Hearing; Notice. If counsel intends to use at oral argument a visual aid used at a trial or administrative hearing, counsel must advise the clerk by letter in an original and 3 copies and served no later than 14 days before argument of the proposed visual aid. (2) Visual Aids Not Used at a Trial or Administrative Hearing; Notice. If counsel intends to use at oral argument a visual aid that was not used at a trial or administrative hearing, counsel must give written notice to opposing counsel no later than 21 days before the oral argument. (3) Objection to the Use of Visual Aids. An objection to the proposed use of a visual aid at oral argument must be in writing, served on all parties, and filed no later than 5 days before the oral argument. If a party objects, the parties’ written submissions will be treated as a motion and response and will be referred to the panel. 33 Rule 34. Oral Argument (a) In General. (1) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. (c) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities. (d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28(h) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a 67 Federal Rules of Appellate Procedure Federal Circuit Rule Rule Practice Notes Court Sessions; Hearing Date. Sessions of the court will be held as announced by the court. Sessions are held regularly in Washington, DC, but the court may sit elsewhere. Appeals are usually calendared for oral argument or submission without argument within 2 months after the briefs and joint appendix are filed. Counsel are advised of the firm date of hearing approximately 30 days before the session. Once scheduled, a case will not be postponed except on motion showing compelling reasons. Counsel should advise the clerk in writing of potential scheduling conflicts as soon as these become known and should not wait until an actual conflict arises. Counsel requiring a courtroom accessible to the disabled, if oral argument is scheduled, should notify the clerk of this requirement when counsel files the entry of appearance. Counsel may elect to submit on the briefs to avoid delay in disposition or for any other reason. Oral Argument. Counsel must report to the clerk’s office at least 30 minutes before the scheduled session and before proceeding to the courtroom. The members of the panel will have read the briefs before oral argument. Counsel should, therefore, emphasize the dispositive issue or issues. Time allotted for oral argument is ordinarily 15 minutes, although the court may vary this depending on the nature of the case. The court may extend the allotted time during the argument, or it may terminate the argument, if it deems it appropriate. Justification for Claim of Confidentiality. Unnecessarily designating material in the briefs and appendix as confidential may hinder the court’s preparation and issuance of opinions. Counsel must be prepared to justify at oral argument any claim of confidentiality. Pamphlet. When counsel are advised of the firm date of oral argument, they will be sent a pamphlet, Notice to Counsel on Oral Argument, which contains detailed instructions about the conduct of oral argument. Copies of Recordings Available. Oral arguments are recorded for the convenience of the court. Copies of a recording may be purchased from the administrative services officer of the court. Open to Public. Unless held in camera, oral arguments are open to the public. Those in attendance whose attire or behavior reflects adversely on the dignity of the proceedings will be asked to leave. Oral Argument on Motions. Oral argument is ordinarily not granted on motions. See Federal Rule of Appellate Procedure 27(e). cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument. (e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant’s argument. If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise. (f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. 34 (4) Scope. This rule does not preclude use of a chalkboard or equivalent during oral argument. (5) Disposition. The clerk may dispose of visual aids not removed by the parties. Federal Rules of Appellate Procedure Federal Circuit Rule 68 Rule Rule 35. En Banc Determination (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance. (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc. (1) The petition must begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue. (2) Except by the court’s permission, a petition for an en banc hearing or rehearing must not exceed 15 pages, excluding material not counted under Rule 32. (3) For purposes of the page limit in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule. (c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. Rule 35. En Banc Determination (a) General. (1) Decision to Review En Banc. A case will be reviewed en banc if a majority of the judges in regular active service agree to hear it en banc. Judges who are recused or disqualified from participating in the case are counted as judges in regular active service. (2) Arguing to a Panel to Overrule a Precedent. Although only the court en banc may overrule a binding precedent, a party may argue, in its brief and oral argument, to overrule a binding precedent without petitioning for hearing en banc. The panel will decide whether to ask the regular active judges to consider hearing the case en banc. (3) Frivolous Petition. A petition for hearing or rehearing en banc that does not meet the standards of Federal Rule of Appellate Procedure 35(a) may be deemed frivolous and subject to sanctions. (b) Statement of Counsel. (1) Petition for Hearing En Banc. A petition that an appeal be initially heard en banc must contain the following statement of counsel at the beginning: Based on my professional judgment, I believe this appeal requires an answer to one or more precedentsetting questions of exceptional importance: (set forth each question in a separate sentence). /s/_____________________________________ ATTORNEY OF RECORD FOR _________________ (2) Petition for Rehearing En Banc. A petition that an appeal be reheard en banc must contain one or both of the following statements of counsel at the beginning: Based on my professional judgment, I believe the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedent(s) of this court: (cite specific decisions). Based on my professional judgment, I believe this appeal requires an answer to one or more precedentsetting questions of exceptional importance: (set forth each question in a separate sentence). /s/_____________________________________ ATTORNEY OF RECORD FOR ____________ 35 69 Federal Rules of Appellate Procedure Federal Circuit Rule Rule (c) Petition for Hearing or Rehearing En Banc; Response. (1) Certificate of Interest. A certificate of interest (see Federal Circuit Rule 47.4) must be included in a petition for a hearing or rehearing en banc or a response to such a petition. The certificate must appear immediately following the cover. (2) Items Excluded from Page Limitation. The following items do not count against the page limitation in Federal Rule of Appellate Procedure 35(b)(2): (A) the certificate of interest; (B) the table of contents; (C) the table of citations; and (D) any addendum containing statutes, rules, regulations, and similar matters. (3) Rehearing En Banc: Copy of Opinion or Judgment. A petition for a rehearing must include a copy of the opinion or the judgment of affirmance without opinion. The copy must be bound with the petition as an addendum. (4) Number of Copies. If only nonconfidential copies are filed, an original and fourteen copies of a petition for hearing or rehearing en banc must be filed with the court. Two copies must be served on each party separately represented. If confidential and nonconfidential copies are filed, an original and fourteen copies of the confidential petition and original and three copies of the nonconfidential petition must be filed with the court. Two copies of the confidential petition and one copy of the nonconfidential petition must be served on each party separately represented. (d) Combined Petition for Panel Rehearing and Rehearing En Banc. If a party chooses to file both a petition for panel rehearing, see Federal Circuit Rule 40, and a petition for a rehearing en banc, then the two must not be filed separately, they must be combined. A combined petition for panel rehearing and rehearing en banc must comply with Federal Circuit Rule 35(c). The cover of a combined petition must indicate that it is a combined petition. (e) Contents of Petition for Hearing En Banc, Rehearing En Banc, and Combined Petition; Response. (1) Petition for Hearing En Banc. The preferred contents and organization for a petition for a hearing en banc are: (A) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case. (e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response. (f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote. 35 Federal Rules of Appellate Procedure Federal Circuit Rule 70 Rule (B) the certificate of interest (see Federal Circuit Rule 47.4); (C) the table of contents; (D) the table of authorities; (E) the statement of counsel required in Federal Circuit Rule 35(b); (F) the argument; and (G) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (2) Petition for Rehearing En Banc. The preferred contents and organization for a petition for a rehearing en banc are: (A) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (B) the certificate of interest (see Federal Circuit Rule 47.4); (C) the table of contents; (D) the table of authorities; (E) the statement of counsel required in Federal Circuit Rule 35(b); (F) the argument; (G) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and (H) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (3) Combined Petition for Panel Rehearing and Rehearing En Banc. The preferred contents and organization for a combined petition for panel rehearing and a rehearing en banc are: (A) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (B) the certificate of interest (see Federal Circuit Rule 47.4); (C) the table of contents; (D) the table of authorities; (E) the statement of counsel required in Federal Circuit Rule 35(b); (F) the points of law or fact overlooked or misapprehended by the panel of the court; (G) the argument in support of a rehearing; 35 71 Federal Rules of Appellate Procedure Federal Circuit Rule Rule 35 (H) the argument in support of rehearing en banc; (I) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and (J) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (4) Response. If the court requests a response, which must not exceed 15 pages unless otherwise ordered, the preferred contents and organization are: (A) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (B) the certificate of interest (see Federal Circuit rule 47.4); (C) the table of contents; (D) the table of authorities; (E) argument against a rehearing, rehearing en banc, or both; an

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