Procedural Guidance for Rule 33 Staff Conferences
Purpose. The purpose of the program is to facilitate the narrowing or full resolution of the issues to be presented by the appellant on appeal. The Court's Central Legal Staff (CLS) attorneys have been provided additional mediation training and certification.
Conference Scheduling Order. After the Court issues a Notice to File Brief to the represented appellant, the Court will schedule a staff pre-briefing conference with representatives for both parties. The scheduling order will be issued prior to the due date of the appellant's principal brief.
The Court's scheduling order is issued as an entry on the docket with notice to the parties. The entry (1) identifies the conference date and time; (2) identifies the CLS staff attorney assigned to conduct the mediation; and (3) notifies the parties that (a) the Staff Conference may be rescheduled by the Court only upon a showing of good cause and (b) the Summary of the Issues is due at least 14 days prior to the conference. In addition, the docket entry provides a link to the Court's Rule 33 and a link to these Procedural Requirements. Below is an example of the Court's scheduling order for a particular case:
Multiple Representatives for an Appellant - Notice of Participation in Conference. It is important that, in cases with multiple counsel making an appearance on behalf of an appellant, the appellant's counsel file a Notice of Participation that states which counsel will be the participant in the Rule 33 conference. The Notice of Participation should be filed promptly after the Court issues the Notice to File Brief to the appellant. Information on this is also provided in the Notice to File Brief. This information is used to avoid scheduling conflicts. If conference counsel changes prior to a scheduled staff conference, counsel should notify the CLS staff attorney.
The Summary of the Issues.
(1) No later than 14 days prior to the Staff Conference, the appellant shall submit to the Secretary and to the Court's Central Legal Staff, a summary of the issues that he or she intends to raise in the appeal, including citations to the relevant authorities and pertinent documents. Appellants are strongly encouraged to avoid boilerplate language. In keeping with the purpose of this Rule, the memorandum should narrow the issues before briefing and succinctly identify errors while citing to relevant evidence and legal authority.
(2) The summary of issues shall be limited to 10 pages, subject to the requirements of Rule 32(b); the 10-page limit does not include submission of pertinent material in the record before the agency;
(3) Submissions shall be emailed to CLS at CLS-Calendar@uscourts.cavc.gov.
(4) The appellant shall also submit for filing with the Court and serve on the Secretary a certificate of service that includes the date of the appellant's submission to the Secretary and to CLS, the specific manner of service (email), and the names and addresses of the persons served.
Consultation. The representatives of the parties must consult with their respective clients in good faith to determine whether joint resolution of the appeal or settlement is possible. At the time of the staff conference, the representatives must either possess the authority to enter into a joint resolution of the appeal or settlement to the extent authorized by the client or be in immediate contact with a person having such authority.
Additional Arguments After the Conference. If the staff conference does not result in agreement of the parties, generally the next step is for the appellant to file a brief. While preparing the brief, if the appellant develops alternative or additional arguments for appeal, counsel is strongly encouraged to discuss these additional arguments with the Secretary (by phone or e-mail) to determine whether joint resolution is possible and briefing can be avoided. Parties are encouraged to file a motion requesting a second conference if they believe doing so could result in agreement or would be beneficial in narrowing the issues on appeal.
Settlements and Joint Motions for Remand. If the staff conference results in agreement of the parties on a resolution of the appeal, the parties prepare and file a Joint Motion for Remand or a Joint Motion for Partial Remand. The Court encourages the parties, to the extent applicable, to include in their joint motion: (1) an executive summary upfront describing which claims are being remanded and/or which part of the appeal is being dismissed; (2) the parties' stipulation to undisputed facts; and (3) sufficient detail identifying the documents being relied upon as the basis for the remand (e.g., date, time, facility, medical condition), keeping in mind that mere citation to the Record Before the Agency is insufficient. It may also be appropriate in certain cases to include in the joint motion non-error language, providing guidance to the Board on remand as to issues for which the Secretary is not conceding error. For example, in a particular case, the parties may decide to include non-error language where the Secretary does not concede that the Board erred in not obtaining a document but both parties agree that it would be helpful for the Board to attempt to obtain that document on remand.
Nondisclosure to Judges. Statements made during a conference, including written memoranda submitted for the conference, may not be disclosed to a Judge of the Court unless the parties agree in writing to such disclosure. This subsection does not apply to disciplinary actions or judicial review of a dispute about the content of the record before the agency or record of proceedings or subsequent Equal Access to Justice Act (EAJA) applications, pursuant to 28 U.S.C. § 2412(d).
Time Not Tolled. Absent an order of the Court, the time period for taking any action under the Court's Rules is not tolled for the time required to prepare for the staff conference.
If any party, counsel, or representative fails to comply with the requirements as set forth in the Staff Conference order, the Court may take appropriate action. See 38 U.S.C. § 7265(a)(3) (Court may punish disobedience or resistance to, inter alia, a lawful order, rule, or command by fine or imprisonment); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991) (holding that Federal courts have implied powers "'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases'" to include sanctions); see, e.g., Ruiz-Rosa v. Rullan, 485 F.3d 150 (1st Cir. 2007) (affirming district court's grant of summary judgment as sanction for failing to comply with court's order); U.S. VET. APP. R. 3(a) (failure of appellant to take required steps under the Court's Rules may be grounds for appropriate Court action, to include dismissal of an appeal); U.S. VET. APP. R. ADM. & PRAC. 4(b)(2) (failure to comply with Court's Rules may subject representatives to disciplinary action).
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