IOP Single-Judge Action
United States Court of Appeals for Veterans Claims
INTERNAL OPERATING PROCEDURES
II. SINGLE-JUDGE ACTION
(a) Policy. An opinion is issued only by a panel. A single judge affirming, reversing, remanding, or dismissing a case issues an order or memorandum decision.
(b) Standard. The Court has adopted the standard enumerated in Frankel v. Derwinski, 1 Vet.App. 23 (1990), to decide whether decisions appealed from the Board of Veterans' Appeals should be decided by a panel or by the screening judge. If the screening judge determines that the case
(1) does not establish a new rule of law;
(2) does not alter, modify, criticize, or clarify an existing rule of law;
(3) does not apply an established rule of law to a novel fact situation;
(4) does not constitute the only recent, binding precedent on a particular point of law within the power of the Court to decide;
(5) does not involve a legal issue of continuing public interest; and
(6) the outcome is not reasonably debatable,
the decision of the BVA may be affirmed, reversed, or remanded on motion by either party, or on the Court's own initiative, by a single-judge order or memorandum decision. This standard is applied to other matters presented to a judge for decision.
(c) Procedure. A screening judge who determines that the case is appropriate for single-judge disposition assumes responsibility for the case and issues an order or memorandum decision. The screening judge circulates the order or memorandum decision (except one dismissing a case for failure to pay the filing fee or to file a brief) to all judges for review and comment and, if it is to be published, to the Editor for format and style review. Within 5 working days, any editorial comments are sent to the author judge, any substantive comments or requests for panel consideration are sent to all judges, and any request for en banc consideration is sent to the Senior Staff Attorney with copies to all judges.
At any time before issuance of a dispositive order or memorandum decision, the screening judge may make a new screening decision under I(b) and request panel consideration with or without oral argument. If two judges request panel consideration, the screening judge requests that the Clerk create a panel composed of the screening judge and two additional judges. If any judge requests en banc consideration, CLS follows the procedure in V(a)(3). Otherwise, the screening judge forwards a reproducible hard copy of the final order or memorandum decision to the Editor as soon as possible after the comment time has expired and comments have been considered, followed by a disk version if the action is to be published in the reporter or the electronic media.
(d) Reconsideration. If a party moves for reconsideration of a single-judge dispositive order or memorandum decision, the motion is referred for CLS evaluation and preparation of a draft action for the deciding judge, who denies the motion or grants it and reconsiders the matter.
(e) Review.
(1) Review of a single-judge action is undertaken only upon the direction of the Court, on its own initiative or upon the motion of a party. Otherwise, the decision of the judge becomes the decision of the Court. Any motion by a party for review of a single judge's decision is referred for CLS evaluation and circulation of a vote sheet to a panel.
(2) Selection of a panel for review is made in accordance with panel selection procedures, except that a panel considering a motion challenging a judge's refusal to recuse himself does not include that judge unless required by the rule of necessity. An order announcing the composition of a panel for review is not issued, unless it is assigned to consider a motion challenging a judge's refusal to recuse himself.
(f) Panel Referrals in Pro Se Cases. When a determination is made, at any point during the consideration of a case, that a case in which a party is not represented should be disposed of by other than a single judge, a clerk's order, designated for electronic publication only, will be entered stating that such a determination has been made and that the matter will be stayed for 30 days to permit possible arrangements for representation of that unrepresented party. In addition, the screening judge assigned to the case may direct that the participation of amicus curiae, notwithstanding the stay, be invited in the clerk's order.
