Handbook VII.D: Disposition by a Special Panel

In cases not assigned to a merits panel, the Clerk's Office refers dispositive and many procedural motions to the Legal Division. Each motion (or all motions in a single case) is assigned to one of the staff attorneys, who reviews the motion, response, and reply, and any other papers filed; examines the record; and then prepares a confidential memorandum setting forth the issues, the facts, an analysis of the law, and a recommended disposition. The staff attorney also drafts a proposed order and, where appropriate, an accompanying memorandum disposing of the motion. Except for emergency matters and other matters requiring expedition or motions to hold a case in abeyance, matters are generally assigned chronologically by filing date, and staff attorneys work on them in that order.

The staff attorney’s recommendation, proposed disposition, and the underlying pleadings are routed to a special panel for resolution.

Special panels consider and decide motions, cases recommended for disposition without oral argument under Circuit Rule 34(j), and emergency matters, presented by the Legal Division. See infra Part VIII and Part XI.C.2. A special panel consists of judges who are assigned on a rotational basis for a fixed period or for a single case. The panel members also are engaged in their regular merits sittings while they serve on a special panel.

The Legal Division circulates to the panel the necessary papers and the recommendations of the staff attorneys regarding the motions that will be presented. The panel may adopt or reject the staff attorney's recommendation, request more research, take the matter under advisement, or refer the motion for disposition to the panel ultimately assigned to hear the case on the merits.

The Court does not publish or disclose in advance the names of the judges on a special panel, nor does it notify counsel or the public of the date on which a particular motion will be considered. The panel does not hear oral argument on motions, except, very rarely, in emergency matters or for extraordinary cause.

Orders disposing of motions are usually not published, although in some cases the panel may decide that a published per curiam opinion will be useful to establish the law of the Circuit on a particular issue. The unpublished orders reflect the names of the panel members beneath the case caption. The order, or a separate memorandum accompanying the order, will explain the basis for the Court's disposition of the motion.

If a party disagrees with a special panel's disposition of a non-dispositive motion, it may move for reconsideration by the same panel or by the full Court. The Court rarely grants these motions. Petitions for rehearing of orders deciding dispositive motions are addressed in Part XIII.B, infra.