IOP VII: Screening and Calendaring

A. General. Initially, the staff attorney reviews the briefs in the cases the Clerk has assigned for a particular session. If a panel of 3 judges, in accordance with Fed. R. App. P. 34 and after consultation with the staff attorney, is of the opinion that a case does not warrant oral argument, the Clerk so advises counsel. Shortly after the decision as to hearing is made, the amount of time to be allotted for oral argument is also set by the Court. Before the hearing list is finally established, the Clerk notifies the parties by letter of the proposed date for hearing the case so that counsel may contact the Clerk if it appears that a scheduling conflict exists.

B. Expedited Schedule. Expedited scheduling is provided automatically in those cases where it is required by statute, such as recalcitrant witness cases. In other cases a request for expedited processing may be filed, but the motion should be made shortly after the case is docketed in the Court of Appeals.

C. Dates of Sessions. In January through June, and October through December, the Court usually sits for one week starting on the first Monday of the month. In either July or August, the court sits for one week. In September the Court starts on the Wednesday after Labor Day and sits for the 3 days in that week and the 5 days in the following week. In November and March the Court sits two weeks, with one week in Boston and one week in Puerto Rico.

D. Judges and Case Assignment. In accordance with long-standing practice, cases are assigned to panels on a random basis provided, however, that a case may be assigned to a particular panel or to a panel including a particular judge in the following circumstances:

1) where the case is a sequel to, or offshoot of, a case previously decided by the court (e.g., following a remand);

2) where the case was presented to the duty panel in the regular course of duties, see, e.g., Bui v. DiPaolo, 170 F.3d 232, 238 (1st Cir. 1999) ("[a]s an administrative measure, we advise litigants that, to the extent practicable, the panel that determines whether to issue a complementary COA also will be the panel that adjudicates the appeal on the merits"), cert. denied, 529 U.S. 1086 (2000);

3) where a case has been assigned to a panel, but scheduling changes (e.g., postponement of oral argument) or changes in the procedural handling of the case (e.g., a case intended for summary disposition is thereafter set for oral argument) require rescheduling;

4) where a case has been assigned to a panel, but the subsequent recusal of a judge (or other unavailability of a judge, e.g., due to illness) makes it appropriate to transfer the case to a different panel or to find a replacement judge.

No other non-random assignments of cases shall be made except for special cause and with the concurrence of the duty judge.

E. Judges and Case Assignment in Capital Cases.

1) Capital Case Panel. Capital cases, as defined in Local Rule 48.0, shall be randomly assigned to a panel of three judges, of whom at least one is an active judge of this Court, from the capital case pool. The capital case pool of judges shall consist of all active judges of this Court and those senior judges who have filed with the Clerk a statement of willingness to serve on capital case panels.

2) Duties of Capital Case Panel. Notwithstanding the practices identified in Internal Operating Procedure V, the assigned capital case panel handles all matters relating to the case, including but not limited to, the merits of a direct appeal, all case management, all petitions for collateral review, motions for stay of execution, motions to vacate a stay of execution, applications for a certificate of appealability, motions for an order authorizing the district court to consider a second or successive application for habeas corpus, appeals from subsequent petitions, and remands from the United States Supreme Court.

F. Timing. The Court will hear up to six cases per day. Generally, it is the practice of this Court to schedule cases in which the brief for appellee is filed by the fifteenth day of one month, so as to have the case screened and assigned to the list for hearing or submission on the second month thereafter.