Federal Circuit Rule 15: Review of an Agency Order or Action
Rules of Practice and Internal Operating Procedures of the Federal Circuit — Title IV. Review or Enforcement of an Order of an Administrative Agency, Board, Commission, or Officer
(a) Petition for Review or Notice of Appeal; Payment of Fees; Contact Information of Counsel or Unrepresented Petitioner or Appellant.
(1) From the Patent and Trademark Office.
To appeal a decision of the Patent Trial and Appeal Board, the Trademark Trial and Appeal Board, or the Director under 15 U.S.C. § 1071(a), the appellant must file in the Patent and Trademark Office a notice of appeal within the time prescribed by law. The appellant must simultaneously file the notice with the clerk of court. The Director must promptly advise the clerk of court whether the notice is timely.
(2) From Another Agency.
(A) Except as provided in Federal Circuit Rule 15(a)(1), to petition or appeal from a decision or order of an agency, the petitioner must file a petition for review or notice of appeal with this court’s clerk of court within the time prescribed by law.
(B) A petition filed by the Director of the Office of Personnel Management must be filed as prescribed in Federal Circuit Rule 47.9.
(3) Contact Information of Counsel or Unrepresented Petitioner or Appellant.
Each petition for review or notice of appeal must contain the counsel’s — or the unrepresented petitioner’s or appellant’s — name, current address, email address, and telephone number.
(4) Filing and Payment.
A notice of appeal or petition for review submitted under this rule along with the fee set forth in Federal Circuit Rule 52, or a motion for leave to proceed in forma pauperis or other waiver, must be provided to this court in accordance with Federal Circuit Rule 25(b).
(b) Docketing Petition or Appeal; Notice of Docketing.
(1) Docketing Upon Receipt.
In a petition for review or appeal from an administrative agency, the clerk of court will docket a timely appeal or petition upon receipt.
(2) Untimeliness.
The clerk of court may return a petition for review or notice of appeal that is untimely on its face. For an appeal or petition docketed by the court, the agency or any party may advise the clerk of court concerning the untimeliness of the appeal or petition and the clerk may order the appellant to show cause why the appeal or petition should not be dismissed and refer the appellant’s response to the court.
(3) Notice of Docketing.
The clerk of court must notify all parties of the date the appeal or petition for review is docketed, the assigned appeal number, and the short case name.
(4) Official Caption.
The clerk of court will provide the parties with the official caption for the case at the time of docketing. Any objection to the official caption must be made promptly.
(c) Statement Concerning Discrimination.
(1) Petitioner’s Statement.
Within fourteen (14) days after a petition for review of a decision of the Merit Systems Protection Board under 5 U.S.C. § 7703 or a decision of an arbitrator under 5 U.S.C. § 7121 is docketed, the petitioner must file a statement indicating whether or not a claim of discrimination by reason of race, color, religion, sex, age, national origin, or handicapping condition was raised before the Merit Systems Protection Board or arbitrator and whether review of such discrimination claim is sought. A petitioner must file the statement on the form prescribed by the court.
(2) Response When a Claim of Discrimination is Raised in a Motion or Brief.
If the petitioner in a case described in Federal Circuit Rule 15(c)(1) files a motion or brief involving a claim of discrimination as to the case before the court, the respondent must state, in a responsive motion or brief, whether the respondent concurs or disagrees with the petitioner’s statement concerning discrimination and indicate whether or not the respondent believes that the court has jurisdiction over the petition for review, with reasons provided as necessary.
(3) Failure to File.
Failure to file a completed discrimination statement may result in dismissal of the petition for review.
(d) Arbitrator Contact Information.
Any petition for review from an arbitrator’s decision must include the arbitrator’s current mailing address, email address, and telephone number.
(e) Notice of Election Under 35 U.S.C. § 141 or 15 U.S.C. § 1071(a)(1).
A party filing a notice of election under 35 U.S.C. § 141 or 15 U.S.C. § 1071(a)(1) with the Director of Patents and Trademarks must file a copy of the notice with the clerk of court, and the clerk of court must dismiss the appeal.
(f) Judicial Review Under 38 U.S.C. § 502.
(1) Time for Filing.
A petition for judicial review of an action of the Secretary of the Department of Veterans Affairs under 38 U.S.C. § 502 must be filed with the clerk of court within six (6) years after issuance of the action challenged in the petition. See 28 U.S.C. § 2401(a).
(2) Parties.
The Secretary of Veterans Affairs must be named the respondent.
(3) Contents.
The petition for judicial review must describe how the persons seeking review are adversely affected and must specifically identify either of the following:
(A) the specific rules or other actions covered by 5 U.S.C. § 552(a)(1) at issue in the petition; or
(B) the notice-and-comment rulemaking process covered by 5 U.S.C. § 553 at issue in the petition.
(4) Procedure.
Except as provided in Federal Circuit Rule 15(e), the procedures applicable to a petition for judicial review under 38 U.S.C. § 502 are the same as those for a petition for review under Federal Rule of Appellate Procedure 15 and Federal Circuit Rule 15.
Notes
Practice Notes to Rule 15
Time to Appeal or Petition.
The table below is provided only as a convenience to parties, who should refer to the statutes, rules, and case law before determining the period available for taking an appeal or filing a petition for review and the event that starts the period.
| Agency | Statute | Time |
| Arbitrator | 5 U.S.C. §§ 7121, 7703 | 60 days |
| Board of Contract Appeals | 41 U.S.C. § 7107 | 120 days |
| Board of Directors, Office of Congressional Workplace Rights | 2 U.S.C. § 1407(c)(3) | 90 days |
| Bureau of Justice Assistance | 34 U.S.C. § 10287 | 90 days |
| Government Accountability Office Personnel Appeals Board | 31 U.S.C. § 755 | 30 days |
| International Trade Commission | 19 U.S.C. § 1337 | 60 days |
| Merit Systems Protection Board | 5 U.S.C. § 7703 | 60 days |
| Patent Trial and Appeal Board; Trademark Trial and Appeal Board; Director of the United States Patent and Trademark Office | 35 U.S.C. § 142; 15 U.S.C. § 1071; 37 C.F.R. §§ 90.3(a)(1), 1.304, 2.145 | 2 months or 63 days |
| Secretary of Agriculture | 7 U.S.C. § 2461 | 60 days |
| Secretary of Labor; Occupational Safety and Health Review Commission; Federal Labor Relations Authority; certain Merit Systems Protection Board cases and Equal Employment Opportunity Commission cases | 28 U.S.C. § 1296 | 30 days |
| Secretary of Veterans Affairs | 38 U.S.C. § 502; Fed. Cir. R. 15(f) | 6 years |
Filing in the Patent and Trademark Office.
A notice of appeal must be filed with the Director by electronic mail to the email address indicated on the Patent and Trademark Office’s web page for the Office of General Counsel. If there is some circumstance in which electronic mail cannot be used, submission may be by Priority Mail Express® addressed to Office of the Solicitor United States Patent and Trademark Office Mail Stop 8 P.O. Box 1450 Alexandria, Virginia 22313-1450.
Copy of Decision or Order.
A party filing a petition for review or notice of appeal is urged to attach a copy of the decision or order of the agency for which review is sought.
Intervention.
A party with the right to appeal or to petition for review may not, instead of exercising that right, intervene in another appeal or petition to seek relief in its own cause. Because the United States or an agency of the United States is often the only appellee or respondent in cases under this rule, any other party seeking to intervene on the side of the appellee or respondent must move for leave to intervene within thirty (30) days after the date when the petition for review or notice of appeal is filed. A motion for leave to intervene out of time will be granted only in extraordinary circumstances.
Statement Concerning Discrimination.
Using Federal Circuit Form 10 satisfies the requirements under Federal Circuit Rule 15(c). The clerk of court will include Form 10 in the docketing package provided to any unrepresented petitioner seeking review of a decision of the Merit Systems Protection Board or an arbitrator.
Timeliness.
Except in inter partes appeals from decisions of the Patent Trial and Appeal Board or the Trademark Trial and Appeal Board, parties in agency proceedings do not have the 14-day “cross-appeal” period that Federal Rule of Appellate Procedure 4(a)(3) grants to parties appealing from trial courts. The court cannot waive the statutory time requirements for filing a petition for review or notice of appeal.
Consolidation.
When more than one party appeals, cross-appeals, or petitions for review from rulings in the same underlying proceeding, the petitions or appeals will usually be consolidated by the clerk of court. Appeals or petitions for review from decisions involving the same or related patents from the same tribunal will usually be consolidated. Other appeals or petitions may be consolidated on motion or by the court sua sponte.
Arbitration Awards in the United States Postal Service.
These arbitration awards may not be appealed to this court.
Proper Governmental Party in Appeals from Boards of Contract Appeals.
In appeals from the boards of contract appeals, the title of the head of the federal agency is listed in the caption along with the name of the agency he or she heads.
Filing and Docketing a Petition for Review or Appeal.
A petition for review or appeal is filed when the petition for review or notice of appeal is received by the court or, in the case of an appeal from the Patent and Trademark Office, when the notice of appeal is received by the Director of the United States Patent and Trademark Office. A petition for review or appeal is docketed when it is listed on the electronic docket and assigned a docket number.
Change of Head of Agency.
In appeals in which the proper governmental party is the head of the agency, counsel for the government should promptly notify the clerk of court of any change that would affect the accuracy of the caption.
Expedited Proceedings.
The overall time for a review of an agency decision can be accelerated by the expeditious filing of a notice of appeal or petition for review shortly after entry of the reviewable agency order. When the appellant or petitioner is considering seeking expedited proceedings on appeal, the party should consider filing its notice of appeal or petition for review and principal brief well before the deadline for such actions. For further information on expedition procedures, see the Practice Notes to Rule 27.
Participation by Appellees/Respondents.
An appellee or respondent desiring not to file a brief or join in another party’s brief should promptly notify the clerk of court.