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Rule 28: Briefs

(a) Appellant's Brief. The appellant shall file a brief that, unless the appellant is self-represented and submits an informal brief pursuant to subsection (e), shall contain, in the following order, the appropriate division headings and the following separate divisions:

(1) a table of contents, with page references;

(2) a table of authorities consisting of cases (alphabetically listed), statutes, other authorities cited, and pages of the record before the agency cited (including a title or description for each document) in numerical order by record citation, with references to the page of the brief where they are cited (see Form 18 (Sample Format for Table of Authorities) in the Appendix of Forms);

(3) a statement of the issues;

(4) (i) a statement of the case, showing briefly the nature of the case, the course of proceedings, the result below, and the facts relevant to the issues, with appropriate page references to the record before the agency;

(ii) when citing to the record, citations shall include the specific page(s) being cited, followed in parentheses by citation to all pages of the document from which the referenced page is cited. When relevant, specific pages for envelopes and date stamps associated with the document shall be included. Parties shall not cite solely to the Board decision for any factual underlying issues on appeal, unless the source document is unavailable;

Practitioner's Note: Parties are charged with exercising judgment in determining what constitutes the document from which a page is cited. For example, if there is a 3-page Notice of Disagreement (NOD) with 100 pages of attachments and the brief is citing page 2 of the NOD and the attachments are not essential to or referenced in the brief, the party need only cite the 3 pages of the NOD (e.g., R. at 44 (43-45)). As another example, service medical records as a whole would not constitute one document, but an entrance examination report would.

(5) an argument, beginning with a summary and containing the appellant's contentions with respect to the issues and the reasons for those contentions, with citations to the authorities and pages of the record before the agency; and,

(6) a short conclusion stating the precise relief sought.

(b) Secretary's Brief.

(1) Content. The Secretary shall file a brief that conforms to the requirements of subsection (a), but a statement of the issues or of the case need not be made unless the Secretary is dissatisfied with the appellant's statement.

(2) Assertion of Board error. The Secretary shall include in the argument section of the brief any agreement with the appellant's assertion of Board error, as well as any independent assertion of Board error deemed material and relevant to the matters on appeal.

(3) Appropriate relief. For any assertion of Board error by the Secretary, the Secretary shall identify the relief that the Secretary considers appropriate.

(c) Reply Brief. The appellant may file a brief in reply to the Secretary's brief. The reply brief shall contain a table of authorities that conforms to the requirements of subsection (a)(2).

(d) Intervenor's Brief. An intervenor may file a brief not later than 30 days after the appellant's reply brief is filed or due. See Rule 31(a) (Filing and Service of Briefs-Time Limits). An intervenor's brief shall conform to the requirements of subsection (a), but a statement of the issues or of the case need not be made if the intervenor adopts either the appellant's or the Secretary's statement.

(e) Self-Represented Party's Brief. Only a self-represented party may submit an informal brief. The informal brief form provided by the Court may be used. Informal briefs are exempt from the requirements of subsection (a) of this Rule and from the requirements of Rule 32 (Forms of Briefs, Appendices, and Other Documents). An informal brief must comply with the Rule 32(f) identification requirement and may not be longer than 30 pages.

(f) Amicus Curiae Brief. See Rule 29 (Brief of an Amicus Curiae).

(g) Motions Prohibited. After the Court has issued the initial notice to file a brief to the appellant, the Court will not accept a motion, other than a joint motion for remand or termination, from any party in lieu of a brief required by subsections (a) through (c). A motion may not be included as part of any brief; the Court will not act on any motion so included. The Clerk will return any motion that violates this subsection.

(h) References to the Record Before the Agency. References in the briefs to the record before the agency shall be to the pages as transmitted by the Secretary, as described in Rule 10(a) (Record Before the Agency). See also Rule 28.1(a) (Preparation of the Record of Proceedings). Commonly understood abbreviations may be used.

(i) Reproduction of Documents. If determination of the issues requires consideration of superseded statutes, rules, or regulations, or unpublished authorities, relevant parts shall be reproduced in the brief or in an appendix. Documents in the record before the agency may not be reproduced in or attached to the brief.

(j) Multiple Appellants. In cases involving more than one appellant, including consolidated cases, any number of appellants may join in a single brief, and any appellant may adopt by reference any part of the brief of another. Appellants may similarly join in reply briefs.