All “otherwise appealable” actions may be appealed to U.S. Court of Appeals for the Federal Circuit in Washington, DC, within 60 days after MSPB issues its Final Decision (or after Initial Decision becomes final). 5 U.S.Code § 7703(b)(1)(A). File Petition For Review/Notice of Appeal (Form 5) downloadable from U.S. Court of Appeals for the Federal Circuit.
The “otherwise appealable” actions are personnel actions appealable to Merit Systems Protection Board (MSPB), such as removals, constructive discharge (forced resignation or forced retirement), forced suspension (forced leave for more than 14 days), reductions in grade or pay, suspensions of more than 14 days, furloughs for 30 days or less, denials of within-grade pay increases, reduction-in-force actions, denials of restoration or reemployment rights (such as Worker’s Compensation claim).
When an otherwise appealable action is raised in the initial MSPB appeal with the additional claim of discrimination associated with the action (as can be raised in affirmative defense), the case becomes a “mixed case.”
MSPB (“Board”)’s final decision involving a mixed case can be appealed to the Federal Circuit Court of Appeals, if the discrimination component is abandoned; because the Federal Circuit Court of Appeals lacks jurisdiction to review Board’s final decision with respect to the claim of discrimination. If not abandoned, the entire appeal will be dismissed by the Federal Circuit Court of Appeals and referred to U.S. District Court.
MSPB final decision involving a mixed case can be split, however, and can be appealed to the Federal Circuit Court of Appeals by abandoning claims of discrimination—only to redress actions involving performance issues (in Chapter 43 appeals dealing with performance standards and implementations) or conduct issues (in Chapter 75 appeals dealing with Douglas Factors such as progressive disciplinary actions, severity of penalty, rehabilitation potential, etc.). See MSPB. As to the discrimination component involved in the same case, the Board’s final decision can be filed separately with U.S. District Court for judicial review of the EEO claims only — within 30 days after issuance of Board’s final decision. 5 U.S. Code § 7703(b)(2). In that incidence, one can file a Complaint for de novo judicial review by U.S. District Court within the appropriate jurisdictional region. In the Complaint one should specify that a judicial review of the Board’s decision is sought on the EEO issues only. Go to Store for samples of U.S. District Court Complaints to download for a fee. Go to USDC for Complaint filing and servicing procedures required by U.S. District Courts.
If MSPB final decision involving a mixed case is not split, it can be appealed either with Federal Circuit Court of Appeals (by abandoning the EEO component—within 60 days of issuance) or with U.S. District Court (only on the EEO component—within 30 days of issuance), not both.
(Otherwise appealable actions are contrasted with Individual Right of Actions (IRA) appeals that are filed with MSPB. IRA appeals involve whistleblower retaliation claims such as retaliatory actions involving “otherwise appealable” actions plus all other Prohibited Personnel Practices (PPPs) such as nepotism, retaliation for blowing whistles, improper hiring, discrimination (to be referred to EEO process), and other disciplinary actions (warning, lowering performance evaluation, reprimand, suspension less than 15 days, denied leave, non selection for hire or promotion, denied transfer, denied bonus, etc.).
MSPB becomes the Appellee only when Board’s final decision pending review solely addresses Board’s jurisdiction and refuses to address the merits of the underlying case. 5 U.S.C. § 7703(a)(2). Otherwise, the federal agency is designated as the Appellee or Respondent.
Once a Petition for Review/Notice of Appeal (Form 5) with Notice of Unrepresented Person (Form 8B) is filed with the Clerk’s Office, Federal Circuit Court of Appeals in Washington DC (with the processing fee of $605 (subject to change), payable to: “Clerk, Federal Circuit Court of Appeals”), the Clerk will issue Notice of Docketing, indicating the appeal case number. In the Notice of Docketing, Agency (or the Board, if it is Appellee) will be ordered to forward the “certified list” with all relevant MSPB files from the Initial Appeal and the Petition For Review proceedings (if PFR is filed).
Within 14 days of filing Petition for Review, Appellant must file a Statement Concerning Discrimination (Form 10) and Notice of Unrepresented Person (Form 8B) or, if represented, a Representation Statement (by attorney).
DEADLINES and FORMAL BRIEF REQUIREMENTS
Once the certified list or index is filed by Appellee, Appellant must file its opening brief within 60 days after the certified list or index is served pursuant to Federal Circuit Rule 17(c).
The opening brief may not exceed 30-page limits or 14,000 words (including headings, footnotes, and quotations) in font size 14.
Cover page must contain the following items:
Appeal Case Number (as identified by the Notice of Docketing).
Name of the Court: “U. S. Court of Appeals for the Federal Circuit.”
Formal Caption (as identified by the Notice of Docketing).
Nature of Proceeding and Name of Underlying Court: “Appealing MSPB final decision on MSPB case number ___________ in the matter of ______ vs. ______,” or “______ vs. MSPB” (if the final MSPB decision is solely on jurisdictional question and has no discussion on the merits of the case, in which case the Respondent becomes MSPB, not the federal agency).
Brief Title: “Appellant’s Opening Brief.”
Party Filer: “Pro Se” or the attorney name and contact information.
See Cover Page template.
Certificate of Interest (Form 9).
Table of Contents.
Table of Authorities.
Statement of Related Cases (if any).
Jurisdictional Statement.
Statement of the Issues.
Statement of the Case and Facts.
Summary of the Argument.
Argument.
Statement of Review (this must appear with its own heading either with the argument section or immediately preceding the argument section).
Conclusion and Relief Sought.
Addendum Containing Opinions, Orders, Judgments Appealed (these documents from MSPB should be attached to the brief as “Addendum”).
Other Addenda (if required such as exhibits, attachments not already part of MSPB files).
Proof of Service (if not filed by electronic Case File system - see Form 30).
See the Formal Brief Requirements issued by Federal Circuit Court of Appeals. Also see Briefs and Appendix Requirements.
Within 40 days of receipt, a Response brief must be filed by Appellee. Appellant may file a Reply brief thereafter.
Avoid using “Appellant” and “Appellee” in the brief. Instead, use actual names or the designation used by the Board. F. R. A. P. 28(d).
File date is the date of mail or dispatch to a third-party commercial carrier for delivery to the Clerk’s Office within 3 days. Federal Rule of Appellate Procedure 25(a)(2)(A)(ii).
The Clerk’s Office reviews and notifies deficiencies in submitted briefs, if any. The deadline continues to run for Appellee, even if the opening brief is found deficient.
See Court’s “Briefs & Appendices,” Federal Circuit Rule 25(c)(4), and “Clerk’s Office’s Revised Document Compliance Review Procedure.”
All submissions can be filed via Court’s Electronic Case File (ECF) system or paper copies can be submitted to:
Clerk of Court
U.S. Court of Appeals for the Federal Circuit
717 Madison Place, N.W.
Washigton, DC 20439.
See Federal Circuit Court’s Electronic Filing Information. See also Federal Rules of Appellate Procedure.
There is also a “night box” for papers to be dropped between 4:30 p.m. and midnight at the garage entrance on H Street N.W., between 15th Street and Madison Place, Washington DC.
If filed in hard copies, do not print double-sided. Three-hole binder should be used so that it lies flat when opened.