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d (F) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (f) Additional Copies of Briefs in Cases to be Heard En Banc. Within 7 days after the order granting a rehearing en banc, counsel must file 30 sets of the briefs that were before the panel that initially heard the appeal, unless the court directs otherwise. (g) Length of Amicus Curiae Brief. Except by the court’s permission or direction, an amicus curiae brief submitted in connection with a petition for hearing en banc, a petition for rehearing en banc, or a combined petition for panel rehearing and rehearing en banc, must be accompanied by a motion for leave and must not exceed 10 pages. Federal Rules of Appellate Procedure Federal Circuit Rule 72 Rule Rule 36. Entry of Judgment; Notice (a) Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment: (1) after receiving the court’s opinion — but if settlement of the judgment’s form is required, after final settlement; or (2) if a judgment is rendered without an opinion, as the court instructs. (b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion — or the judgment, if no opinion was written — and a notice of the date when the judgment was entered. Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value: (a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous; (b) the evidence supporting the jury’s verdict is sufficient; (c) the record supports summary judgment, directed verdict, or judgment on the pleadings; (d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or (e) a judgment or decision has been entered without an error of law. 35 Practice Note Separate Judgment Not Prepared in Certain Instances. A separate judgment is not prepared when a case is dismissed on consent or on motion or for failure to prosecute. The order of dismissal serves as the judgment when entered. Practice Notes Hearing or Rehearing En Banc. The court may sua sponte order that an appeal be initially heard or be reheard en banc. The panel or a judge on the panel that is considering a case may at any time request the active judges of the court to hear or rehear the case en banc with or without further briefs or argument by counsel. Rehearing En Banc; Senior Judges. If a senior judge participated in the original hearing and disposition of a case for which rehearing en banc is granted, that senior judge may participate fully in the rehearing. Combined Petition for Panel Rehearing and Rehearing En Banc. When a combined petition for panel rehearing and petition for rehearing en banc is filed, the petition for panel rehearing is decided first in the same manner as a petition for panel rehearing without an accompanying petition for rehearing en banc. If the panel grants the requested relief, the petition for rehearing en banc is deemed moot. Petition for Rehearing En Banc Referred to Panel. A petition for rehearing en banc is presumed to request relief that can be granted by the panel that heard the appeal, and action on the petition for rehearing en banc will be deferred until the panel has an opportunity to grant the relief requested. Timeliness. A petition for hearing or rehearing en banc is filed when the court receives it, not on mailing. The clerk will return an untimely petition for hearing or rehearing en banc. Nonprecedential Opinions. A petition for rehearing en banc is rarely appropriate if the appeal was the subject of a non-precedential opinion by the panel of judges that heard it. Writ of Certiorari. Filing a petition for a panel rehearing or for rehearing en banc is not a prerequisite to filing a petition for a writ of certiorari in the Supreme Court. 73 Federal Rules of Appellate Procedure Federal Circuit Rule Rule Practice Notes Warning Against Filing or Proceeding with a Frivolous Appeal or Petition. The court’s early decision in Asberry v. United States, 692 F.2d 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel, parties, and pro se petitioners for pursuing frivolous appeals. Challenging a Frivolous Appeal. If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must file a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been challenged as frivolous is expected to respond or to request dismissal of the case. Rule 37. Interest on Judgment (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest. Rule 38. Frivolous Appeal — Damages and Costs If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. Rule 39. Costs (a) Notice of Entitlement to Costs. When the clerk provides notice of judgment or order disposing of an appeal, the clerk must advise which party or parties are entitled to costs. (b) Bill of Costs; Copies; Objection. A party must serve the bill of costs on the form prescribed by the court and must file an original and three copies with the court. An objection to a bill of costs must not exceed 5 pages and must be filed in an original and three copies and served on the other parties. 39 Rule 39. Costs (a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise: (1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders. (b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law. Federal Rules of Appellate Procedure Federal Circuit Rule 74 Rule (c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying. (d) Bill of Costs: Objections; Insertion in Mandate. (1) A party who wants costs taxed must — within 14 days after entry of judgment — file with the circuit clerk, with proof of service, an itemized and verified bill of costs. (2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must — upon the circuit clerk’s request — add the statement of costs, or any amendment of it, to the mandate. (e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule: (1) the preparation and transmission of the record; (2) the reporter’s transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. 39 75 Federal Rules of Appellate Procedure Federal Circuit Rule Rule 40 Rule 40. Petition for Panel Rehearing (a) Time to File; Contents; Answer; Action by the Court if Granted. (1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, if the United States or its officer or agency is a party, the time within which any party may seek rehearing is 45 days after entry of judgment, unless an order shortens or extends the time. (2) Contents. The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted. (3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request. (4) Action by the Court. If a petition for panel rehearing is granted, the court may do any of the following: Rule 40. Petition for Panel Rehearing (a) Contents of Petition for Panel Rehearing. The preferred contents and organization for a petition for panel rehearing are: (1) white cover or first page with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (2) the certificate of interest (see Federal Circuit Rule 47.4); (3) the table of contents; (4) the points of law or fact overlooked or misapprehended by the court; (5) the argument; (6) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and (7) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (b) Addendum. A copy of the opinion or judgment of affirmance without opinion sought to be reheard must be bound with the petition for panel rehearing as an addendum. Practice Notes Costs When the United States is a Party; Costs in Ex Parte Appeals from the Patent and Trademark Office. 28 U.S.C. § 2412(a) authorizes costs to be taxed against the United States; thus, costs (as defined in 28 U.S.C. § 1920) may be awarded both for and against the United States in this court. An ex parte patent appeal under 35 U.S.C. § 141 and an ex parte trademark appeal under 15 U.S.C. § 1071 are not within the scope of 28 U.S.C. § 2412, however, and costs in these appeals are not awarded for or against the Patent and Trademark Office. Limit on Printing Costs. The costs taxable under Federal Rule of Appellate Procedure 39 are limited to the costs of preparing typewritten briefs (even if a party elects to have a brief printed) and of copying briefs and appendices. Current Rates. The following rates are the current maximum allowable costs: $6.00 per page for the table of page numbers of designated materials, the originals of briefs, and the table of contents for the appendix (whether printed, typewritten, or word processed); $0.08 per page for copying and collating; and $2.00 per copy for covers and binding. Allowable Costs. Costs may be billed for 16 copies of briefs and appendices, plus 2 copies for each additional party, plus any copies required or allowed, e.g., confidential briefs or appendices. The cost of service copies of the table or physical compilation of the designated materials may also be billed. Any other cost billed must be separately justified. The total billed for any item must be limited to the lesser of actual or allowable costs. Actual cost of briefs and appendices prepared in-house includes word processing, copying, and binding, at the amount normally billed to a client for these services. The United States may assume its actual costs are the allowable costs. The costs of correcting a nonconforming brief are not taxable. Counsel are urged to stipulate to costs. Payment of Costs Taxed. Pay the party or parties in whose favor costs are taxed by check sent to counsel for the party or to the party if the party appeared pro se. Do not involve the court in collection matters. Federal Rules of Appellate Procedure Federal Circuit Rule 76 Rule (c) Items Excluded from Page Limitation; Other Material. (1) Items Excluded. The following items do not count against the page limitation in Federal Rule of Appellate Procedure 40(b): (A) the certificate of interest; (B) the table of contents; (C) the table of citations; (D) the addendum containing a copy of the opinion or judgment of affirmance without opinion; and (E) any addendum containing statutes, rules, regulations, and similar matters. (2) Other Material. Material not listed in this Federal Circuit Rule 40 may not be included in the addendum or in an appendix without leave of the court. (d) Answer. If the court requests an answer, which must not exceed 15 pages unless otherwise ordered, the preferred contents and organization for the answer are: (1) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2); (2) the certificate of interest (see Federal Circuit Rule 47.4); (3) the table of contents; (4) the argument; and (5) the proof of service (see Federal Rule of Appellate Procedure 25(d)). (e) Time. The time limits set forth in Federal Rule of Appellate Procedure 40(a)(1) also apply to a motion for panel reconsideration of a dispositive panel order. (f) Informal Petition for Panel Rehearing; Answer. (1) Informal Petition. A pro se party may file an original and 3 copies of an informal petition for panel rehearing in letter form not to exceed 15 typewritten doublespaced pages, attaching to each a copy of the opinion or judgment sought to be reheard. (2) Informal Answer. If the court requests an answer to an informal petition for panel rehearing, or if the court requests a pro se party to answer a formal petition for panel rehearing, the answer may be informal, following the standards prescribed for informal briefs. The informal answer may not exceed 15 typewritten double-spaced pages, and must be filed in an original and 3 copies. 40 (A) make a final disposition of the case without reargument; (B) restore the case to the calendar for reargument or resubmission; or (C) issue any other appropriate order. (b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Unless the court permits or a local rule provides otherwise, a petition for panel rehearing must not exceed 15 pages. 77 Federal Rules of Appellate Procedure Federal Circuit Rule Rule Rule 41. Mandate: Contents; Issuance and Effective Date; Stay (a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs. (b) When Issued. The court’s mandate must issue 7 calendar days after the time to file a petition for rehearing expires, or 7 calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time. (c) Effective Date. The mandate is effective when issued. (d) Staying the Mandate. (1) On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise. (2) Pending Petition for Certiorari. (A) A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay. (g) Length of Amicus Curiae Brief. Except by the court’s permission or direction, an amicus curiae brief submitted in connection with a petition for panel rehearing must be accompanied by a motion for leave to file and must not exceed 10 pages. 41 Practice Notes Petition for Panel Rehearing Not Filed When Mailed. A petition for panel rehearing, unlike a brief, is not deemed filed when mailed; it must be received by the clerk within the time fixed for filing. The time provided in Federal Rule of Appellate Procedure 40(a)(1) runs from the date the judgment is entered (see Federal Rule of Appellate Procedure 36), not from the date counsel receives the opinion or order. Therefore, Federal Rule of Appe

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