Pro Se Informal brief for U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT federal employee

[jaybrown]

Federal employee filed a appeal due to initial decision from MSPB. Will I receive a brief from the opposing side if they file? Filed my brief on 20 May and have not received anything else. What else should be happening and what happens if they do not file their brief?

 

[quincy]

Federal employee filed a appeal due to initial decision from MSPB. Will I receive a brief from the opposing side if they file? Filed my brief on 20 May and have not received anything else. What else should be happening and what happens if they do not file their brief?

Where are you located? Do you live in DC?

 

[Taxing Matters]

Federal employee filed a appeal due to initial decision from MSPB. Will I receive a brief from the opposing side if they file?

Yes. Rule 31 of the Federal Rules of Appellate Procedure (FRAP) require that briefs be served on the opposing party as well as filing them with the Court. Note that multiple copies of the briefs are required.

What else should be happening and what happens if they do not file their brief?

There is no requirement that the MSPB or the agency (depending on the nature of your appeal) file a responding brief. The statute tells the Appeals Court to review the matter on the record of the MSPB proceeding and the standard to be used in that review. Specifically, it says:

In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--​

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;​

(2) obtained without procedures required by law, rule, or regulation having been followed; or​

(3) unsupported by substantial evidence;​

except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court.​

5 U.S.C.A. § 7703(c).

I should tell you that these reviews are tough to win. The Congressional Research Service (CRS), which is an office of the Congress that researches issues and produces reports to Congress on various federal issues, stated in a 2019 report about the MSPB:

Under this standard of review, the Supreme Court has recognized that the Federal Circuit’s ability to review the merits of MSPB decisions is “extremely narrow.” As the Court has further explained, in examining these MSPB decisions, “it is not for the Federal Circuit to substitute its own judgment for that of the Board.” Accordingly, the Federal Circuit typically upholds Board decisions. According to a 2019 MSPB report, over the past few years, the Federal Circuit has affirmed Board decisions in 93 to 96 percent of the cases it reviewed.​

​

I mention this not to discourage you in your appeal but rather so you are realistic about the chances of success and don't get your hopes sky high for a win. I wish you the best of luck with it — some employees do win — just know it's not easy.

 

[Taxing Matters]

Where are you located? Do you live in DC?

In this case it won't matter. The applicable statute provide that all appeals of Merit System Protection Board (MSPB) decisions must be filed with the U.S. Court of Appeals for the Federal Circut with exception of a limited class of such cases in which case the employee has a choice of courts, but the Federal Circuit is always one of the options. Thus, that Court has the jurisdiction to hear any appeal of a MSPB decision, and the rules that apply will be the same regardless of the state, district, possession, or territory in which the employee resides.

 

[quincy]

Taxing, I was asking for the name of jaybrown’s state, a question asked of all posters to this forum.

Jay, if you do not already have this Pro Se Guide, you will probably find it helpful, although Taxing probably can fill in any blanks for you:

http://www.cafc.uscourts.gov/pro-se

 

[Taxing Matters]

Taxing, I was asking for the name of jaybrown’s state, a question asked of all posters to this forum.

I realize that we generally ask that of all posters here, but as I understand it the reason for doing so is that to answer most questions asked here we need to know the applicable law and in most circumstances to know what that law is we need to know where the poster is located or the state where the relevant events took place. This is one of the limited subset of situations though where it just really doesn't matter. I don't fault you for asking about it, I was just explaining for those who don't know why it doesn't matter in this instance.

 

[quincy]

I realize that we generally ask that of all posters here, but as I understand it the reason for doing so is that to answer most questions asked here we need to know the applicable law and in most circumstances to know what that law is we need to know where the poster is located or the state where the relevant events took place. This is one of the limited subset of situations though where it just really doesn't matter. I don't fault you for asking about it, I was just explaining for those who don't know why it doesn't matter in this instance.

It is asked of all posters to this forum that they provide the name of their state.

Many intellectual property questions require no state name to answer the question, either, but the question is asked of all posters anyway. It might not matter for a first question. It could have relevance in follow up questions.

I had no problem with your answering of the question here. I did find it odd that you felt the need to lecture me on the need for a state name, though.

 

[Taxing Matters]

I did find it odd that you felt the need to lecture me on the need for a state name, though.

It wasn't a lecture. I was explaining my understanding (and I explicitly said it was simply my understanding) of why the state is requested on this site in case you or someone else knew of another reason why it is asked of everyone. I've never seen any clear statement on this site as to why the question is asked. It is obvious to me that many questions do depend on state law or, with some questions of federal law, may depend on the applicable court of appeals circuit. So that reason does not surprise me. However, I don't assume that must be the only reason; there might be more to it that is not obvious to me. I don't assume I know everything about how this site is organized and operated. For example, there are some practices of this site that still baffle me — the reason for them isn't entirely clear. However, as the saying goes, it is what it is.

 

[quincy]

Several posters post from other countries.

 

[Taxing Matters]

Several posters post from other countries.

True. And I've often thought that perhaps the site could do something to make it more clear to people that this site only covers law in the U.S. Perhaps some kind informational statement on the page for writing new messages that lets them know that if their issue involves a situation outside the U.S. that we can't help.

 

[Zigner]

True. And I've often thought that perhaps the site could do something to make it more clear to people that this site only covers law in the U.S. Perhaps some kind informational statement on the page for writing new messages that lets them know that if their issue involves a situation outside the U.S. that we can't help.

Some time ago, after some discussion, the question asking for the state name was inserted for that very reason, but it (obviously) falls short.

 

[quincy]

True. And I've often thought that perhaps the site could do something to make it more clear to people that this site only covers law in the U.S. Perhaps some kind informational statement on the page for writing new messages that lets them know that if their issue involves a situation outside the U.S. that we can't help.

The “What is the name of your state? U.S. Law Only” phrase is a confusing one at best. Many posters from other countries do not think they have to identify a state name if they don’t have a U.S. law question.

And when posting from some mobile devices, the question about state name doesn’t appear at all.

The best we can do is ask for the state name when a poster does not provide it. And the state name should be asked for if not provided. Too often a thread will get numerous responses and then the poster will say, “By the way, I live in Nigeria. I assume the law is the same.”