Fed. Cir. to Get Tough on Court Rule Violations

In a per curium order published on November 5, 2004 as In re Violation of Rule 28(c), the Federal Circuit noted that even inadvertent violations of court rules may result in sanctions:

We accept counsel's representation that the violation of Rule 28(c) in this case was inadvertent. So far as we have been able to determine, this court has not in the past exercised its authority to impose sanctions for "inadvertent" violations of applicable court rules. Under these circumstances, we conclude that the imposition of sanctions in this case is not appropriate. However, we wish to make clear that it is the duty of counsel to familiarize themselves with applicable rules, and that, in future cases, serious violations of applicable rules, whether or not "inadvertent," will potentially subject counsel to sanctions.

Rule 28(c) of the Federal Rules of Appellate Procedure provides, in pertinent part: "An appellee who has cross-appealed may file a brief in reply to the appellant?s response to the issues presented by the cross-appeal." Rule 28(c) limits the content of Cross-Appellant?s Reply Brief to "issues presented by the cross-appeal," and the Practice Notes explicitly warn cross-appellants against exceeding the scope of Rule 28: "[C]ounsel are cautioned, in cases involving a proper cross-appeal, to limit the fourth brief to the issues presented by the cross-appeal. In all cases, counsel should be prepared to defend the filing of a cross-appeal and the propriety of arguments presented in the fourth brief at oral argument."