1. These tips are specifically geared towards appeals of decisions by federal agencies before the D.C. Circuit. These practice tips may have limited applicability or may not apply at all to other types of appeals, e.g. appeals of decisions issued by a lower court (as opposed to a federal agency)or appeals which are in different federal circuit or a state appellate court. Further, some of the practice tips are even more specific and relate only to appeals from decisions by the Federal Energy Regulatory Commission (FERC) which are governed by Section 313(b) of the Federal Power Act. Appeals from different federal agencies are governed by different statutes, so you must check the appropriate governing statute to determine how to proceed.

2. While these practice tips provide guidance or shortcuts to the applicable rules, ultimately, IT IS IMPERATIVE TO CHECK THE ACTUAL RULE OR STATUTE to determine how to proceed. That is why I have attempted to identify applicable rules and have provided links to the D.C. Circuit's Rules, as well as some of the statutes which I have referenced--so that you can read them for yourself and make your own judgment as to how to proceed. Also, for further information, you can link directly to the D.C. Circuit's Official Web Site.

3. If you do not fully understand the foregoing caveats, you are strongly advised to seek additional assistance beyond this Web Site.
   

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PETITION FOR REVIEW

1. About a Petition for Review

A "petition for review" initiates judicial review (i.e., an appeal, of a decision or order issued by a federal administrative agency. The deadline and other requirements for seeking review are governed by the specific agency's enabling legislation. Because the deadline for seeking appeal of an agency order is set by a statute, the court cannot waive the deadline or make exceptions if it is missed.

Bottom Line: Check the statutory deadline governing the petition for review very carefully and be aware of the date on which the agency issued its decision. To avoid any problems, file early. For an example of the Federal Energy Regulatory Commission's statutory provision governing judicial review, see Section 313, Federal Power Act, 16 U.S.C. sec. 825l(b).

2. Other Practice Links Regarding Petition for Review

• For further information on the D.C. Circuit's requirements for filing a Petition for Review, see Rule 15 of the Federal Rules of Appellate Procedure (FRAP) and D.C. Circuit Rule 15. Click here to download D.C. Circuit Rules/FRAP .
• Important Note on Service :Be sure to review and comply with the service requirements of Rule 15, which require the Petition for Review to be served on both the agency and all parties which participated in the proceeding before the agency (with certain exceptions for review of informal rulemaking).
• As of 4/20/98, the fee for filing a Petition for Review of an order from a federal agency is $100.00. Prior to filing, always check with the Clerk's Office or D.C. Circuit's Web Site to determine the appropriate filing fee.
• An original and four copies of the petition for review must be filed. SeeD.C. Circuit Rule 27(b). Click here to download D.C. Circuit Rules/FRAP .

3.Samples

• For a sample form for a Petition for Review, see Form 3, contained in the Appendix of Forms to the D.C. Circuit Rules. Click here to download D.C. Circuit Rules/FRAP
• To see the actual Petition for Review filed in Clifton Power v. FERC, 88 F.3d 1258 (D.C. Cir. 1996), click here.

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DOCKETING THE APPEAL

• Shortly after filing a Petition for Review, the court will send a form for the Docketing Statement, which is also available from the Forms Cabinet, at the D.C. Circuit Web Site. (select Docketing Statement for Agency Appeal from Forms Cabinet). See also, Circuit Rule 15(c) ("Docketing Statement") (Download D.C. Circuit Rules/FRAP).

• At the same time, the court will most likely send out an initial scheduling order, (for additional information, see Section IV.B (Cases from Administrative Agencies) of the D.C. Circuit Handbook of Practice and Procedure. (Download D.C. Circuit Handbook). The court's initial order will set deadlines for:
  1. Petitioner's submission of the docketing statement (described above)
  2. Petitioner's submission of the Certificate of Parties, see D.C. Circuit Rule 15(c)(requiring provisional certificate of parties to accompany Docketing Statement) and D.C. Circuit Rule 28(a)(1) (certificate must describe parties and amici and include required disclosures by corporate entities per D.C. Circuit Rule 26.1; identify the rulings under review and related cases before the court). Again, read the scheduling order and rules carefully. (Download D.C. Circuit Rules/FRAP)
  3. Petitioner's submission of a statement of issues in the case.
  4. Petioner's statement as to whether the "deferred appendix" option will be used. seeD.C. Circuit Rule 30 and FRAP 30(c)and Appendix
  5. Respondent's filing of the Record. See FRAP/D.C. Circuit Rule 17
  6. Any dispositive motions and motions which would affect the procedural schedule. SeeD.C. Circuit Rule 27(g).

• To view any of the rules cited above, Download D.C. Circuit Rules/FRAP).

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  BRIEFS

  • The format and content of briefs to the D.C. Circuit are governed by FRAP 28(a) and D.C. Circuit Rule 28 and D.C. Circuit Rule 32. (Download D.C. Circuit Rules/FRAP) See also D.C. Circuit Handbook of Practice and Procedure, Part IX.A. for additional, useful pointers on briefs. (Download D.C. Circuit Handbook)

  • Under FRAP 28(a), a petitoner's brief should contain:
    1. A Table of contents.
    2. A statement of subject matter and appellate jurisdiction.
    3. A statement of the issues for review.
    4. Identification of pertinent statutes and regulations which should either be set forth in the brief after the statement of issues or bound in an addendum.
    5. A statement of the case, including the nature of the proceedings and the facts.
    6. Argument, preceded by summary of argument.
    7. Conclusion and Request for Relief

  • Petitioner's brief is limited to 12,500 words or 50 pages. Counsel must submit a certificate that the brief complies with the word limit. See D.C. Circuit Rule 32(d)(1)-(2) The court disfavors motions to exceed the limits on briefs. SeeD.C. Circuit Rule 28(f).
  • Cover of Petitioner's brief is blue and must contain information specified in FRAP Rule 32 and D.C. Circuit Rule 32.
  • copies of the brief must be filed, unless a deferred appendix is used, in which case 7 copies of the initial brief are filed, with 15 copies of the final brief subsequently filed.
  • Two copies of the brief must be served on counsel for each party represented. See FRAP Rule 31(b)
  • Caution: Carefully review the actual rules cited above before preparing your brief. The rules can be downloaded by clicking D.C. Circuit Rules/FRAP.

  • View an actual appellate brief filed by petitioner in Clifton Power v. FERC, a D.C. Circuit case.

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  REPLY BRIEF

  • A petitioner may file a reply brief in response to the Respondent's brief. See FRAP Rule 28(c).
  • The contents of the reply brief are governed by FRAP Rule 28(c) and are similar to those of the brief, except that a statement of jurisdiction and facts are not required for the reply. SeeFRAP 32(a).
  • The primary purpose of a reply brief is to respond to the opponent's argument and not to rehash points already covered in the brief or to raise new arguments.
  • A reply brief should be no more than 6250 words or 25 pages. Cover of the reply brief is gray. See D.C. Circuit Rule 32(d).
  • Caution: Carefully review the actual rules cited above before preparing your reply brief. To review any of the rules cited above, click to download D.C. Circuit Rules/FRAP).

  • View an actual reply brief filed by petitioner in Clifton Power v. FERC, a D.C. Circuit case.

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  APPENDIX

  • The Appendix to the brief contains selected documents from the record relevant to the appeal and cited in the brief.

  • An appendix may be filed at the same time as the brief or alternatively, may be deferred until after the brief is submitted. Deferring the appendix makes it possible for the parties to file a joint appendix which is often more convenient--although not necessarily less expensive for the petitioner who bears the costs of preparing the joint appendix. See FRAP 30 and D.C. Circuit Rule 30.

  • The format and contents of the Joint Appendix is governed by FRAP 30 and D.C. Circuit Rule 30. (Download D.C. Circuit Rules/FRAP).

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  EAJA

  Summary of the Equal Access to Justice Act:The Equal Access to Justice Act (EAJA) allows parties meeting certain financial criteria and prevailing in suits brought against them by federal agencies to recover attorney's fees if the government's case was not substantially justified and the party seeking to recover fees did not act in bad faith. In 1996, EAJA was amended by the Small Business Regulatory Enforcement Fairness Act to increase the $75.00 hourly rate under EAJA to $125.00 and to facilitate recovery of attorney's fees in civil penalty/enforcement proceedings.
  • The D.C. Circuit does not have specific rules for recovery of attorney's fees under EAJA. A request for attorney's fees should be filed pursuant to Rule 27 of the FRAP and D.C. Circuit Rules governing motions and should conform to the page limits (20 pages) and filing requirements (original and 4 copies) contained therein. (Download, D.C. Circuit Rules/FRAP)).

  • A request for fees under EAJA should contain the following:
    1. Establish that the entity requesting fees has met the applicable statutory standards, e.g. meets the financial criteria for recovery (net worth must be less than $2 million for individual or $7 million for corporation or local governmental unit-- 28 U.S.C. sec. 2412d(1)(A)(2)(B)); is a prevailing party; the government's position was not substantially justified and party seeking fees did not act in bad faith.
    2. Detailed documentation of time spent on the appeal, pro-rated if necessary since fees are only awarded for time spent on prevailing issues.

  • To get a feel for the legal issues involved in a claim under the EAJA, review petitioner Clifton's Motion for Fees Under EAJA, EAJA Reply and EAJA Supplement.

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