I.O.P. 5.5: Preparation and Circulation of Opinions
Local Appellate Rules and Internal Operating Procedures of the Third Circuit — I.O.P. Chapter 5. Opinions
5.5.1 By Author. The authoring judge prepares a draft opinion in accordance with the decision of the panel at conference, but the author may express any different views reached after subsequent study of the case. The opinion will set forth the reasons supporting the court’s decision.
5.5.2 Circulation Within Panel. After the draft opinion has been prepared, the authoring judge circulates it to the other two members of the panel with a request for approval or suggestions they may desire to make with respect to the draft opinion. Answering this request is given the highest priority by the other two judges, who shall communicate in writing their approval or disapproval within 8 calendar days of receipt of the opinion. This time is extended to 10 days during the month of August. Absent a request for additional time, failure to respond within that time period shall be deemed an approval of the opinion as drafted. Because it is the opinion of the court, other members of the panel are free to make any suggestions relating to the modification of, addition to, or subtraction from the proposed text. Where a textual revision or addition is suggested, the suggesting judge submits his or her modification in specific language capable of being inserted into the opinion. When one of the other two judges approves, it becomes the proposed opinion of the court. Should the other panel members disagree with the author’s draft, the opinion is reassigned by either the presiding judge or the ranking judge who is a member of the panel's majority.
5.5.3 Time Schedule for Panel Drafting and Circulating Opinions; Reassignments.
(a) 60-day period for draft opinion writing. It is the aspirational goal of the court that, except in complex cases, the authoring judge transmit to the panel a draft opinion within 60 days after assignment or after close of any supplemental briefing or other factors suspending the drafting process.
(b) 45-day period to file concurring or dissenting opinion. If, after a second panel member approves the draft opinion, the third panel member desires to separately concur or dissent, the judge not joining in the opinion notifies the author promptly and transmits his or her separate opinion to the panel within 45 days after the second judge's approval is received. Panel opinions are not considered to be completed until each member has an opportunity to revise his or her opinion in response to those of other panel members.
5.5.4 To Non-panel Active Judges.
Drafts of unanimous not precedential opinions do not circulate to non-panel judges. Drafts of not precedential opinions that contain a dissent circulate to non-panel judges. Drafts of not precedential opinions that contain a concurrence circulate to non-panel judges if a member of the panel requests that the opinion be circulated to all judges. Drafts of precedential opinions and not precedential opinions that are not unanimous are circulated to all active judges of the court after the draft opinion has been approved by all three panel members, concurring or dissenting opinions have been transmitted, or all members of the panel have had the time set forth in I.O.P. 5.5.3 to write separate opinions. Absent a request for additional time, if the third judge has not timely responded, the draft opinion is circulated to the active judges of the court with the notation added to the opinion that the third judge has not joined in the opinion. Non-panel active judges must notify the authoring judge within 8 calendar days if they desire en banc consideration. This time is extended to 10 days during the month of August. The circulation to non-panel active judges contains a request for notification if there is a desire for en banc consideration. Although senior judges do not have a vote en banc, senior judges may choose to receive circulating opinions.
5.5.5 En banc Cases.
The time schedule set forth in I.O.P. 5.5.2 and 5.5.3 is also followed in en banc cases, except that judges will give preparation of en banc opinions priority over preparation of panel opinions.