Issuance of Mandate

An order granting an unopposed motion to dismiss or remand a case will constitute the mandate. PRACTICE NOTES TO RULE 41 Relation of Mandate to Application for Certiorari; Stay. That a mandate has issued does not affect the right to apply to the Supreme Court for a writ of certiorari. Consequently, a motion to stay the mandate should advance reasons for the stay beyond the mere intention to apply for certiorari, e.g., to forestall action in the trial court or agency that would necessitate a remedial order of the Supreme Court if the writ of certiorari were granted. Federal Circuit Rules of Practice (December 1, 2025) Page 179 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 42 Voluntary Dismissal (a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant’s motion with notice to all parties. (b) Dismissal in the Court of Appeals. (1) Stipulated Dismissal. The circuit clerk must dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any court fees that are due. (2) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court. (3) Other Relief. A court order is required for any relief under Rule 42(b)(1) or (2) beyond the dismissal of an appeal—including approving a settlement, vacating an action of the district court or an administrative agency, or remanding the case to either of them. (c) Court Approval. This Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration. (b) Criminal Cases. A court may, by local rule, impose requirements to confirm that a defendant has consented to the dismissal of an appeal in a criminal case.* *The court has not imposed a corresponding local rule. Federal Circuit Rules of Practice (December 1, 2025) Page 180 (Return to Table of Contents) PRACTICE NOTES TO RULE 42 Stipulation of Dismissal Form. Using Federal Circuit Form 18 satisfies the requirements to stipulate to dismissal of an appeal under Federal Rule of Appellate Procedure 42(b)(1). FEDERAL RULE OF APPELLATE PROCEDURE 43 Substitution of Parties (a) Death of a Party. (1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. A party’s motion must be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings. (2) Before Notice of Appeal Is Filed — Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative — or, if there is no personal representative, the decedent’s attorney of record — may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1). (3) Before Notice of Appeal Is Filed — Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1). Federal Circuit Rules of Practice (December 1, 2025) Page 181 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 43 (b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies. (c) Public Officer: Identification; Substitution. (1) Identification of Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer’s official title rather than by name. But the court may require the public officer’s name to be added. (2) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer’s successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution. Federal Circuit Rules of Practice (December 1, 2025) Page 182 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 44 Case Involving a Constitutional Question When the United States or the Relevant State is Not a Party (a) Constitutional Challenge to Federal Statute. If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General. (b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State. PRACTICE NOTES TO RULE 44 Raising a Constitutional Question in a Brief or Motion. Inclusion of a constitutional challenge in a brief or motion is insufficient to satisfy the written notice requirements of Federal Rule of Appellate Procedure 44. Parties must file a separate notice before the clerk of court will certify a matter to the Attorney General of the United States or the attorney general of a State. Federal Circuit Rules of Practice (December 1, 2025) Page 183 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 45 Clerk’s Duties (a) General Provisions. (1) Qualifications. The circuit clerk must take the oath and post any bond required by law. Neither the clerk nor any deputy clerk may practice as an attorney or counselor in any court while in office. (2) When Court Is Open. The court of appeals is always open for filing any paper, issuing and returning process, making a motion, and entering an order. The clerk’s office with the clerk or a deputy in attendance must be open during business hours on all days except Saturdays, Sundays, and legal holidays. A court may provide by local rule or by order that the clerk’s office be open for specified hours on Saturdays or on legal holidays other than New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.* (b) Records. (1) The Docket. The circuit clerk must maintain a docket and an index of all docketed cases in the manner prescribed by the Director of the Administrative Office of the United States Courts. The clerk must record all papers filed with the clerk and all process, orders, and judgments. (2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk must give preference to appeals in *Electronic filing remains available even on days when the clerk’s office is closed to the public on a weekend or legal holiday. See Fed. R. App. P. 26(a)(6); Fed. Cir. R. 26(a)(2). Fed. Cir. R. 26(a)(3)–(4) explain how this court handles the inaccessibility of either the physical clerk’s office or electronic filing when the clerk’s office would otherwise be open. Federal Circuit Rules of Practice (December 1, 2025) Page 184 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 45 criminal cases and to other proceedings and appeals entitled to preference by law. (3) Other Records. The clerk must keep other books and records required by the Director of the Administrative Office of the United States Courts, with the approval of the Judicial Conference of the United States, or by the court. (c) Notice of an Order or Judgment. Upon the entry of an order or judgment, the circuit clerk must immediately serve a notice of entry on each party, with a copy of any opinion, and must note the date of service on the docket. Service on a party represented by counsel must be made on counsel. (d) Custody of Records and Papers. The circuit clerk has custody of the court’s records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk’s office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed.