January 5, 2021 - Federal Circuit Insights

Starting 2021 With a Tip

We decided to start the new year off with a little practice pointer. We noticed that the Court rejected a brief today (not ours) for failing to comply with several rules. One basis for the rejection is a rule that often is overlooked—the location of the Standard of Review. Many experienced advocates place the Standard of Review in a section before—rather than as part of—the Argument. The rejected brief did that today too. But among the reasons why the brief was rejected was this:

The brief does not contain the standard of review, or the standard of review must appear within the argument of the brief, either in the discussion of each issue or under separate heading before discussion of the issues. Fed. R. App. P. 28(a)(8); Fed. R. App. P. 28.1(c)(1)-(2).

As you can see, the Court references FRAP 28(a)(8), which reads (the reference to FRAP 28.1 just refers back to 28(a)):

Briefs

(a) Appellant’s Brief

The appellant’s brief must contain, under appropriate headings and in the order indicated:

(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 appeallant relies;

(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 heaing placed before the discussion of the issues);

Based on the citation to FRAP 28(a)(8), the Court seems to have concluded that it was not enough that the brief included the Standard of Review. The brief also had to include the Standard of Review within the Argument section—either under a separate heading or in the discussion of the issues. We haven’t seen this rejection before even though the Rule has been around for some time. Given the recent rejection, practitioners may want to review their templates and make sure their Standard of Review is located in the right place.