Internal Operating Procedures
United States Court of Appeals for Veterans Claims
Internal Operating Procedures
VII. En Banc Process
(a) Policy. Decisions by the Court sitting en banc are not favored except when necessary to secure or maintain uniformity of the Court's decisions or to resolve a question of exceptional importance. Generally, opinions are issued for any decision by the en banc Court disposing of an appeal unless the action is taken pursuant to a motion, in which case the en banc Court issues an order.
- (1) Participation.
- (A) All Judges in regular active service may participate in a vote for en banc review, provided their vote is submitted within the times prescribed below. Whether or not an eligible Judge participated in the vote, all Judges serving in regular active service at the time of the vote may participate in consideration of the en banc matter.
- (B) A Judge appointed to the Court after a case has been selected for en banc review may participate in that consideration provided oral argument (or conferencing without oral argument) has not taken place prior to the appointment of the Judge. The Clerk shall promptly inform any newly appointed Judge of the time and place of any en banc oral argument or conferencing scheduled to take place after appointment of the Judge, and the Judge may participate in any such consideration if available to do so, but if not so available, the Judge shall not be eligible to participate in the decision, or any motion for reconsideration.
- (C) A Judge who elects recusal from en banc consideration is not part of the en banc voting or panel review from the point of recusal forward.
- (D) Assignment of a case for en banc review generally is reflected on the public docket.
- (2) Request for En Banc Review.
- (A) At the Request of a Judge.
- A screening Judge requesting en banc review, or a Judge requesting en banc consideration of a matter circulating prior to issuance (either by a single Judge or by a panel), notifies all Judges and submits to CLS a memorandum in support of the request. CLS then circulates to all Judges serving in regular active status formal notice of the request, the accompanying memorandum, and a vote sheet. The formal notice (1) advises that the request will fail unless, during the voting period of 5 working days, at least a majority of the Judges support the request, (2) advises that the case will not proceed to any pending disposition until the expiration of the voting period, and (3) specifies the last day of the voting period.
- (i) If a majority of the eligible Judges do not support the request during the 5-day voting period, the case proceeds to disposition and no order or statement is issued and no docket notation is made regarding the request for en banc review.
- (ii) If at least a majority of the eligible Judges support the request, the matter proceeds in accordance with Section VII(b)(3), below.
- (i) If a party moves for en banc review, CLS circulates to all eligible Judges the motion and a formal notice (1) advising that en banc consideration is either appropriate or inappropriate, (2) advising that the motion will be denied unless, during a voting period of 5 working days, at least three of the eligible Judges request that the Court seek a response from the other party, and (3) specifying the last day of the voting period.
- (ii) If during the 5-day voting period, fewer than three eligible Judges have requested that the non-moving party be ordered to file a response to the motion, no response is ordered and the motion is denied. When a motion for en banc consideration is denied without seeking a response from the non-moving party, CLS prepares a per curiam order of denial that is circulated to the participating Judges and published on the fifth working day after the order began circulation, unless otherwise directed for good cause by the Chief Judge. Separate statements are not encouraged and will not be issued with the Court's order unless submitted in time to be so issued. If a separate statement is not timely prepared, the denial order may be issued and any separate statement may be issued at a later time and published with the denial order; however, a separate statement may not be issued if not prepared and issued within 10 days of the issuance of the dispositive order unless an extension is granted by the Chief Judge for good cause.
- (iii) If during the 5-day voting period at least three eligible Judges have requested a response from the non-moving party, the Clerk issues a standard order seeking a response as to the motion for full Court consideration. A majority of the Board of Judges may elect to modify and/or amplify the Clerk's standard order for a response. Once the response is filed (or the time period expires and no response is filed), CLS circulates to all participating Judges the motion requesting en banc consideration, any response, and a vote sheet directing all participating Judges to vote for or against consideration of the matter en banc. CLS provides for a voting period of 10 working days and will specify the last day of the voting period.
- (a) If, upon the expiration of the 10-day voting period, at least a majority of the participating Judges do not vote to grant the motion, the motion is denied. When a motion for en banc consideration is denied after a response from the non-moving party has been sought, CLS promptly prepares the order of denial, which is circulated to the participating Judges. Any participating Judge intending to write a separate statement must notify the participating Judges of such intent within 5 working days from the date of circulation of the denial order and must submit such separate statement to the participating Judges no later than 10 working days after the date of circulation of the denial order. Any adjustments to the denial order will be made promptly and any adjustment to any separate statement must be made within the same amount of time taken to adjust the denial order. If a separate statement is not timely prepared, the denial order may be issued and any separate statement may be issued at a later time and published with the denial order; however, a separate statement may not be issued at all if not prepared and issued within 10 days of the issuance o f the dispositive order unless an extension is granted by the Chief Judge for good cause.
- (b) If within the 10-day voting period, at least a majority of the eligible Judges vote to grant the motion, the motion for en banc consideration is approved and the matter proceeds in accordance with Section VII(b)(3), below.
- (3) En Banc Review Granted. If en banc review is granted, the Clerk generally issues an order to that effect and thereafter the Chief Judge, as presiding Judge, generally convenes a conference or directs the Clerk to schedule oral argument, as appropriate (see Section IV, above), to be followed by a conference. The senior Judge in the majority assigns authorship responsibility. If there is no majority, the presiding Judge on the en banc panel determines the consensus of the panel on how to proceed, and the panel so proceeds.
- (4) Drafting and Issuance of En Banc Opinion or Order.
- (A) Drafting. As soon as possible after drafting responsibility for the opinion is assigned, and following agreement of the majority on the draft, the author Judge circulates the draft decision to all participating Judges for comment.
- (B) Original Circulation. By 5:00 p.m. on the fifth working day after the proposed opinion or order originally is circulated, any substantive comments are sent to all participating Judges and any Judge who intends to write a separate opinion or statement so notifies the en banc panel. Such separate statement is then c irculated to the other participating Judges as soon as practicable but no later than 5:00 p.m. on the 10th working day after the day on which the proposed en banc order or opinion was originally circulated.
- (C) Re-Circulation. The majority decision may be modified in response to any proposed separate statement and, whenever substantively modified, will be re-circulated to the en banc panel. Within 5 days of the re-circulation, any Judge who intends to write or modify a separate opinion or statement so notifies the en banc panel. Such separate statement is then circulated to the en banc panel as soon as practicable but no later than 5:00 p.m. on the 10th working day after the day on which the proposed en banc order or opinion was re-circulated. No separate opinion or statement will be issued unless timely circulated to all participating Judges and timely submitted for issuance with the Court's opinion. At the request of any participating Judge, for good cause the Chief Judge may extend the time to submit a separate opinion or statement for issuance with the Court's opinion or order, but the extension may not exceed an additional 30 calendar days.
- (D) Editor Review. The author Judge of the Court's opinion or order forwards to the editors for format and style review a copy of the final opinion or order, with any separate opinion or statement, as soon as practicable after (1) the expiration of the comment period, (2) the expiration of any period for the circulation of any separate opinion or statement if notice of intent to write separately has been timely circulated, and (3) any comments have been considered. Within 5 working days, the editors provide to the author Judge and to any other writing Judge any format and style suggestions.
- (E) Issuance. Upon incorporation of all final format and style changes, and after all participating Judges have had the opportunity to review the final product, the author Judge forwards the final decision, with any concurrence or dissent, to the Clerk for issuance. Prior to sending to the Clerk for issuance, the panel may request an additional review by the editors, particularly in instances where the draft has undergone significant revision since the editors' last review. Back