Internal Operating Procedures - page 10

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that the case is related to one that was previously before a panel that included that
Judge. If the author Judge is not available, the appeal is referred to another available
member of the original panel, based on seniority. If none of the original panel Judges
is available, the appeal is assigned according to the normal process, as described in
Section I(a)(3), above.
(B) The author or other assigned panel-member Judge promptly reviews any such
case and if the Judge determines that the new appeal involves substantially the same
issue(s) raised in the prior appeal that was remanded by a panel, the Judge consults
with the available members of the prior panel and determines whether the interests of
judicial efficiency warrant consideration by the same panel. The Judge then directs
the Clerk as to the appropriate assignment of the case. If the author or assigned Judge
determines that the new appeal does not involve substantially the same issue(s) raised
in the prior appeal, the Judge returns the case for assignment to a Judge (potentially
including that Judge) according to the normal process, as described in Section I(a)(3),
above.
IV. ORAL ARGUMENT
(a) When Allowed.
Oral argument is held when ordered by the Court on motion of a party or
sua sponte. Normally, oral argument is heard only by a panel upon the request of any panel
Judge. Exceptions may be made as circumstances require to include proceeding without oral
argument if a majority of the panel determine that scheduling delays and the interests of
justice so warrant. Only the Court sitting en banc may order or grant a request for oral
argument en banc.
(b) Time and Manner.
Each party usually is allowed 30 minutes in which to present argument.
The panel makes any changes it desires in the format or order for presentation of argument,
including adjusting the time allowed, limiting the argument to certain issues, or altering the
usual order of presentation. The Clerk may also advise the parties of additional issues any
member of the panel wishes addressed at oral argument.
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
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