Internal Operating Procedures - page 11

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include that Judge unless required by the rule of necessity; and a Senior Judge will sit on
a panel only if available.
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 and
location of the travel.
(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.
(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.
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