Title page

Appeal No.

IN THE U. S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT

PETITIONER NAME

V.

RESPONDENT NAME

PETITION FOR REVIEW OF THE MSPB FINAL DECISION

APPELLANT’S OPENING BRIEF

BY

NAME

ADDRESS, PHONE, EMAIL

[Size 14 Century Schoolbook font]

TABLE OF CONTENTS

(Example)

Table of Contents………………………………………..2

Table of Authorities…………………………………..3

Statement of Related Cases……………….4

Jurisdictional Statement…..………….………..4

Statement of the Issues…………….…………….5

Statement of Applicable Standard of Review [here or below]……………………………………..………………………………6

Statement of the Case and Facts…….6

Summary of the Argument………………..…..21

Argument………………………………………………………………22

Statement of the Applicable Standard of Review

[here or above]………………………………………….…….24

Conclusion and Relief Sought……………….25

Certificate of Compliance…………………………26

Proof of Service…………………………………………………..27

Addendum [if applicable, see left side under Appendix]……………………………28

Appendix

Table of Contents (example)

Certified List of MSPB files…………….……..…Appx00001

Initial Decision, 3-25-2024 (Tab 74)…………….…...Appx00004

Jurisdictional Finding and Procedural Order, 2-21-25 (Tab 45)………………..……………Appx0021

Notice of Decision to Remove, date, (Tab no.)………………………………..……………..Appx0039

Notice of Proposal to Remove, date , (Tab no. )…Appx49

The order of document in the appendix should be chronological, except for the following documents that should appear in the beginning but after Certified List of MSPB files: all judgments, orders, agency actions or other decisions appealed from and any opinions, memoranda, or findings and conclusions supporting them. See Fed. R. App. P. 30(d); Fed. Cir. R. 30(b)(2)(B); Fed. Cir. R 30(c)(1). These documents should be included in the addendum, if an opening brief is submitted without a combined appendix.

See Fed. R. App. P. 30(d); 25.1(e)(1)(A) for an exception regarding protective orders.

Appendix must start with the entire Certified List of MSPB files (provided by MSPB with “attestation”), index, or docket sheet (printed from PACER/eCF) from the proceedings below (the lower court or MSPB). See Fed. Cir. R. 30(a)(1)(A)(i).

Extraneous markings and highlighting are not permitted in briefs or appendix.

All appendix page numbers must be preceded by “Appx” (or “SAppx” for a supplemental appendix) and then the number, without any intervening non-numerical characters or spaces. Sub-organizational indicators (such as .1 or a) are also not permitted. See Fed. Cir. R. 30(b)(2)(C). Use PDF bates numbering, which is available in any PDF editing software..

The entire appendix, including all files therein, must be combined into one PDF (if the size is within the submission limits-20 Mb) and each page must be numbered by bates numbering preceded by “Appx.” For example, “Appx00032.” If Appendix exceeds the bite size limit for the purpose of e-filing, it could be splitted into parts and submitted consecutively via eCF (after each page is bates numbered before spliting).

Appendix must not be attached to the brief if appendix exceeds 100 bound, or 200 electronic, pages. Fed. Cir. R. 30(d)(2); Fed. Cir. R. 30(e)(3).

If appendix is 20 Mb or more, bates number it first as one PDF, so that each page will have pagination in sequence at the bottom center margin, starting with “Appx00001” in font size 14. Then, once bates numbered, split the appendix into parts with 10 Mb each and submit to the Court via eCF in sequence. The Clerk’s office will combine them into one file and (re)upload the appendix in the eCF system, so that it will appear as one PDF file.

Any opening brief submitted without a combined appendix must contain an addendum. See Fed. Cir. R. 28(c).

Addendum should contain the following, as referenced above: all judgments, orders, agency actions or other decisions appealed from and any opinions, memoranda, or findings and conclusions supporting them. See Fed. R. App. P. 30(d); Fed. Cir. R. 30(b)(2)(B); Fed. Cir. R 30(c)(1).

The documents contained in Addendum should have the same “Appx” bates numbering on each page and must be so referred to in Table of Contents in the addendum (that accompanies Opening Brief—if Appendix exceeds 100 pages in hard copy or 200 pages in e-copy)

In other words, there should be no separate Addendum page bates numbering. Opening Brief must strictly refer to the appendix page bates numbering only—even if Opening Brief is accompanied by Addendum..

The submitted Appendix must be searchable by page number that corresponds to the bates numbering at the bottom center of each page.

Bates page numbers must be clearly visible in size-14 font and centered at the bottom margin of each appendix page.

The documents and pages referenced in the Brief must match exactly in the same format with the bates page numbering in the Appendix, such as Appx00123 or SAppx00123 (for supplemental appendix), Appx00123-Appx00132; Appx00123, Appx00135, or Appx00123-24. See p. 34-35 of Electronic Filing Procedures.

Examples of incorrect page references in the brief are: Appx00123, 135, 145; Appx145a; Appx 145; Apex. 145; Appx.145; Appx145.1; Appx145-1; Appx00123-45; Appx123:45; Appx123:45-125:67..

Examples of correct page references in the brief are: Appx00123, Appx00135, Appx00145; Appx135, Appx138; Appx00123-25; Appx00123-Appx00125; Appx00123-25.

Also see Quick Reference for Appendix Requirements for Federal Circuit Court.

Also see, as organized by FRAP sections, Federal Circuit Rules Practice Notes.

federal rules of appellate procedure - Rule 28: Briefs

(a) Appellant’s Opening Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated below:

(1) a Disclosure Statement if required by Rule 26.1;

(2) a Table of Contents, with bates page references from Appendix;

(3) a Table of Authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(4) a Jurisdictional Statement, including:

(A) the basis for the district court’s or agency’s subjectmatter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;

(B) the basis for the court of appeals’ jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;

(C) the filing dates establishing the timeliness of the appeal or petition for review; and

(D) an assertion that the appeal is from a final order or judgment that disposes of all parties’ claims, or information establishing the court of appeals’ jurisdiction on some other basis;

(5) a Statement of the Issues presented for review;

(6) a concise Statement of the Case and Facts, setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e));

(7) a Summary of the Argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings;

(8) the Argument, which must contain:

(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise Statement of the Applicable Standard of Review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);

(9) a short Conclusion stating the precise Relief Sought; and

(10) the Certificate of Compliance, if required by Rule 32(g)(1).