IOP 3: Merits Panels – Distribution of Briefs, Records, and Files

1. 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 clerk’s office screens cases to determine if they are calendar-ready, i.e., if all briefs and the joint appendix have been filed. A computer program merges the list of calendar-ready cases in order of filing with panels of judges determined randomly, subject to the requirements of 28 U.S.C. 46(b) and Fed. Cir. R. 47.2(b) (“Assignment of cases to panels will be made so as to provide each judge with a representative cross-section of the fields of law within the jurisdiction of the court.”). Cases are generally scheduled for a calendar approximately six weeks after the last brief and the appendix are filed.

A case that is remanded by the Supreme Court is referred to the panel or to the en banc court that previously decided the matter, subject to the circumstances provided by IOP # 15, paragraph 2(a). When an appeal is docketed in a case that was previously remanded by this court, or when an appeal concerning attorney fees is docketed after any appeal on the underlying merits is decided, the clerk’s office attempts to assign the appeal to the previous panel, to a panel including at least two members of the previous panel (if one of those members was the authoring judge), or to a panel that contains the authoring judge, if such a panel is otherwise constituted and available on a subsequent argument calendar.

A motions panel that decides to expedite an appeal may decide to reconstitute itself as the merits panel. See IOP # 2, paragraph 11. A recusal of a judge may require revisions to the composition of a merits panel. See Fed. Cir. R. 47.11; IOP # 5, paragraph 3. Othercircumstances may arise that require substitution of a judge or constitution of a panel in a manner not otherwise provided above.

2. Briefs, records, and other case related materials are distributed to the merits panel as early as possible before the hearing date.

3. The court’s policy is that briefs will be read by the judges of the panel before oral argument.

4. When the appeal is terminated and the mandate has issued, such briefs and materials as are not retained in chambers will be placed in wastebaskets in chambers for discard.

5. Briefs and other materials marked Confidential or Protected Materials and no longer needed in chambers, will be returned to the clerk for supervised destruction after the mandate has issued