Update/correction August 22, 2018: After we published this post, the Clerk’s Office of the Federal Circuit reached out to us and explained that it is continuing to docket received briefs as ‘tendered’ and those briefs will not be available to the public through PACER until after the Clerk’s Office has accepted them for filing. Our earlier discussion with the Clerk’s Office had led to a misunderstanding. We apologize for the error.
The Clerk’s Office of the Federal Circuit sent us the following statement today:
The Clerk’s Office practice is to accept as timely an amicus brief that is submitted within 7 days after a tendered party’s brief is accepted (shown as “Brief filed” on the docket). We are presently reviewing the tendered brief procedures mentioned in your letter. The Federal Circuit regularly evaluates whether changes to its rules of practice and other procedures are required in order to best serve the interests of justice and the particular needs of the court. Before any amendments to our rules of practice are implemented, there is an opportunity for public comment. We are also receptive to considering proposed changes, like the one described in your letter, submitted outside of the formal public notice and comment period, and we thank you for bringing your concern to our attention.
EFF will likely submit comments next time there is an open comment period asking the court to make non-sealed briefs available as soon as they are submitted. We will also encourage other public interest and transparency groups to submit comments.
In a modest victory for public access, the Federal Circuit has changed its policies to allow the public to immediately access briefs. Previously, the court had marked briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has now changed its policies to allow immediate access.
Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.
While this is perhaps a small change, we appreciate that the Federal Circuit is making briefs available upon filing. We had encountered delays of 7 days or more (this meant that the parties’ briefs were sometimes not available until after supporting amicus briefs were due). Ultimately, the public’s right of access to courts includes a right to timely access. The Federal Circuit is the federal court of appeal that hears appeals in patent cases from all across the country, and many of its cases are of interest to the public at large.
The Federal Circuit’s former practice was at odds with its other actions on transparency. The court has issued rulings making it clear that it will only allow material to be sealed for good reason. Federal Circuit rules were also recently changed to require parties to file a separate motion if they want to seal more than 15 consecutive words in a motion or a brief. With federal district courts routinely allowing parties to seal records that should be public, we hope that more courts take the Federal Circuit’s lead on public access.