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Internal Operating Procedures
Panel Process

United States Court of Appeals for Veterans Claims

Internal Operating Procedures

V.  Panel Process

(a) Policy. Generally, opinions are used for any decision by a panel disposing of an appeal, unless the action is taken pursuant to a motion, in which case the panel issues an order.

(b) Forming Panels.

  • (1) Panels generally consist of the screening Judge and two other Judges. See Section II(b)(2), above. Panel selection is done by the Clerk and is random and rotational, with due regard to each Judge's availability, with the following exceptions: A panel considering a motion challenging a Judge's refusal to recuse him- or herself does not include that Judge unless required by the rule of necessity; and a Senior Judge will sit on a panel only if available, and then generally only if he or she was the author Judge on the matter that thereafter is before a panel. See Policy for the Recall of Senior Judges.

  • (2) Substitution for an assigned panel member due to recusal or as directed by the Chief Judge due to circumstances such as illness, unavailability, or workload, is made by the Clerk at random, with due regard to workload and availability. For travel cases, the Chief Judge may direct substitution of panel members for reasons related to the nature of the travel and location of the hearing.

  • (3) When a pro se case is forwarded for panel disposition, the matter is stayed for 30 days to permit possible representation of the unrepresented party. In addition, the panel may direct that participation of amicus curiae, notwithstanding the stay, be invited by order of the Court.

  • (4) Once a panel is composed, a vacancy does not impair its ability to conduct business so long as there is a quorum.

  • (5) Assignment of a case for panel decision generally is reflected on the public docket; however, the names of the panel members generally are not so reflected.

(c) Panel Disposition. After oral argument, or after designation of the panel in a case without oral argument, the presiding Judge of the panel generally convenes a conference to discuss and tentatively decide the case. At the conference, the senior Judge in the majority assigns authorship responsibility for the opinion. The senior Judge is responsible for monitoring the timely processing of the case.

(d) Panel Action and Separate Statements.

  • (1) As soon as possible after drafting responsibility for the opinion is assigned, the author Judge circulates the draft decision within the panel for comment. A panel member who plans to write a separate statement notifies the other panel members promptly and circulates the separate statement within the panel as soon as practicable. The panel majority may then modify the draft opinion, and the Judge writing separately may also modify his or her statement, until the panel is in agreement that the decision and any separate statement are ready to circulate to the Board of Judges (BOJ).

  • (2) The author Judge circulates the panel's draft, including any separate statement, to all Judges for review and comment. (In circumstances of exceptional delay, the majority of the panel may circulate the majority decision without the statement of a Judge writing a separate statement if the separate statement has not been provided.) Within 5 working days, any substantive comments are sent to all Judges, and any request for en banc consideration is sent to CLS for processing in accordance with Section VII.

  • (3) During the 5-day circulation period the Court's editors also review the draft decision and provide to the author Judge and to any other writing Judge any format and style suggestions.

  • (4) If any substantive changes are made to the panel opinion, order, or separate statement, the author Judge recirculates the entire decision for an appropriate period of time to permit review and comment by the other Judges and the editors. If only nonsubstantive changes are made, the decision is forwarded to the editors for final review before it is forwarded to the Clerk for issuance.

  • (5) Unless action is pending on an en banc request, and after any comments and suggested editing have been addressed, the author Judge forwards the final opinion or order, with any separate statement, to the Clerk for issuance as soon as practicable.

  • (6) In circumstances of exceptional delay, the majority of the panel may provide notice that the majority decision will issue at the end of 5 working days, without any separate statement if such statement is not prepared at that time, unless an extension is granted by the Chief Judge for good cause.

(e) Dissolving Panels.

  • (1) For cases sent to panel pursuant to Section I(b)(4) or called to panel pursuant to Section II(b)(2), if the majority of the panel agrees, the case is returned to a single Judge of the panel for a decision on the matter.

  • (2) Any case returned to a single Judge by a majority of a panel shall, upon circulation of the single-judge decision, be subject to recall to panel by a vote of three Judges of the Court in regular active service. In the event of recall to a panel, the case is assigned to the original panel for a panel decision on the matter.
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