Federal Circuit Internal Operating Procedure

The Court of Appeals for the Federal Circuit generally follows its own set of "internal operating procedures." Although these are not citable rules, they do represent the usual standard practice for the court. The court provides them to the public to try to steer appellate practice away from a purely old boy system and allow the public to understand the court's process. Transparency is especially important for the Federal Circuit. Although located in Washington DC, the court's jurisdiction reaches across the nation. And, lawyers from across the country come to DC to argue on behalf of their clients. The Federal Circuit – especially Judge Michel – should be commended for its work toward a more open system that is more transparent than ever. The court has done an excellent job with its online public release of new opinions that provides equal access to new information. That system is especially important when a case involves a major product (such as a blockbuster pharmaceutical) of a publicly traded company. The audio files have also been useful for non-Washington insiders to understand the impact of particular oral arguments. The court is working on the next step –immediate online access to briefs and other pleadings.

Back to the new procedures: Anyone planning to practice before the court should read the internal operating procedures. In a recent update, the court provided two additional bits of information about its operation. The first statement describes the process of selecting three judge panels. According to the court, the three-judge panels are randomly selected, subject to the availability of each judge.

"The chief judge provides to the clerk's office a list of judges that are available for each day of an argument session. The clerk's office runs a computer program that randomly generates three-judge panels for each month, subject to the judges' availability."

The second new discussion in the IOP explains how pre-release precedential opinions are circulated to all Federal Circuit judges and the "senior technical assistant" prior to publication. Non-panel members have seven working days to provide comments or request that publication be held pending en banc poll.

"When all panel votes are in on a precedential opinion or order, the authoring judge circulates the opinion and any concurring or dissenting opinions, with a transmittal sheet, to each judge. A copy is also circulated to the senior technical assistant (STA), and the STA shall provide information on potential conflicts between the panel-approved opinion and any other prior opinions of the court or other relevant precedents. The nonpanel members of the court will have seven working days (twelve working days for opinions circulated during the summer period) to review a circulated precedential opinion or order. Nonpanel members may send comments to the authoring judge, to the panel, or to all judges. A nonpanel member judge in regular active service may submit a hold sheet pending a request for an en banc poll. Absent transmittal of a hold sheet or a request for an en banc poll during the circulation period, the authoring judge sends the opinion, and any concurring or dissenting opinions, to the ASO for copying and delivery to the clerk for issuance."

Notes:

• Revised IOP [PDF file]
• Mark Davies Book on Federal Circuit Appellate Procedure:

Comments

[6]

A must have for everyone serious about their appeals.

[6]

A must have for everyone serious about their appeals.

[Andrew Dhuey]

I caught a typo in the proposed IOP, wrote the court about it and saw it corrected in the final version. I am expecting a major award for this public service.

But seriously, I agree, Dennis. How the court works should be transparent, and I applaud the court for explaining its workings to those of us who never clerked there.

[AllSeeingEye]

It is interesting to note that an en banc panel can be from a quorum, or 7 members of the court, to the full court, which hosts 12 seats. I wonder what would happen in the unlikely event that a full 12 member panel was seated and there was a tie...

[Andrew Dhuey]

AllSeeingEye, in that 6-6 situation, if there had been a three-judge panel decision, it would stand, and if not, the decision below would be affirmed by an equally-divided court.

[AllSeeingEye]

Very interesting! Thanks Andrew for the note. I've been fielding a lot of questions lately from foreign attorneys on the details of U.S. court operations.

[Just an ordinary inventor(TM)]

6-6 tie:
Sorta like a photo-finish, winning by a single judge’s nose (if the three judge panel was split).

[Just an ordinary inventor(TM)]

6-6 tie:
Would it not be fairer justice to “split the pot” on some basis, sorta King Solomon style?, or to “Certify” the case and send it up the Supreme Court?

[anonymous]

JAOI, no. In a 6-6 vote on rehearing, it doesn't necessarily mean that the 6 who voted for rehearing think the panel decision was wrong or that the 6 who voted against it think the panel decision was right.

See Amgen.
http://www.cafc.uscourts.gov/opinions/05-1157o.pdf

Judge Lourie voted against rehearing, though he thought the panel decision was wrong. (p. 11 of the .pdf)

Judges Gajarsa, Linn and Dyk were willing to consider the underlying law, expressed no view on the merits, and voted against rehearing (p. 16)

I can't recall off the top of my head, but I think I've seen an opinion where a judge stated that he would grant rehearing en banc for the purpose of *affirming* the panel decision and thus ending the dispute among the judges about the underlying rule of law.

If there aren't enough votes for rehearing, then the decision of the 3 judges who read the merits briefs, listened to the arguments and spent the time rendering a decision is what should stand.