Veterans’ Administration Law Practice · 2018-12-10 · Jerusha L. Hancock Berry Law Firm For the...

Veterans’ Administration Law Practice

TUESDAY DECEMBER 11, 2018 HRUSKA LAW CENTER - LINCOLN

Joseph J. Donnelly

Berry Law Firm

Jerusha L. Hancock Berry Law Firm

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Veterans’ Administration Law Practice

NE MCLE Accreditation 3 CLE / 1 ethic hour

Regular/live #167234 Distance learning #167233

Attend live or via live webcast$195 Regular registration

$150 NSBA dues-paying member FREE Law students

www.nebar.com

Tuesday December 11, 20181:00 pm – 4:15 pmHruska Law Center

635 S 14th Street Lincoln

Speakers: Joseph J. Donnelly & Jerusha L. Hancock of Berry Law Firm

This CLE program will comply with 38 C.F. R. § 14.629(b)(1)(iii) requiring newly accredited VA practitioners to complete a three-hour continuing legal education within 12 months of initial accreditation and will also comply with § 14.629(b)(1)(iv) requirements to maintain accreditation. In sum, this program will discuss practicing before the Board of Veterans’ Appeals and the U.S. Court of Appeals for Veterans’ Claims.

1:00 pm - 2:00 pm: Practicing Before the BVA and the CAVC This section will introduce attendees to practicing before the Board of Veterans’ Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) and also offer basic discussion about appeals to the Court of Appeals for the Federal Circuit (CAFC). It will also introduce the governing rules of practice and the differing brief styles between all three tribunals.

2:00 pm - 2:10 pm: BREAK2:10 pm - 3:10 pm: Challenges in Appeals to the BVA, CAVC and CAFC This section will discuss the substantive challenges in appealing to the BVA, CAVC, and the CAFC and will include how to spot and preserve issues on appeal (both factual and legal errors). Presenters will offer tips on reviewing the record and raising the issue of missing records to the relevant tribunal as well as offering examples of common errors found in many records on appeal.

3:15 pm - 4:15 pm: Ethical Issues in the Representation of Veterans This section will cover the Rules of Practice before the BVA and CAVC and examples of the tribunals’ past responses to ethical breaches, including discussing statutory provisions in 38 U.S.C. Chapter 59 and regulatory guidance in 38 CFR Parts 1, 14 and 20 that ensure claim-ants for benefits have responsible qualified representation in the preparation, presenta-tion, and prosecution of claims for veterans’ benefits.

REGISTRATION FORM: I will attend the live seminar at the Hruska Law Center in Lincoln. I will attend the seminar via live webcast.

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Signature:__________________________________________________________________________________________________Return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Karla Roscoe at [email protected] you do not receive an email confirming your registration, please call (402) 475-7091.If you need any special accommodation for attending this event, please contact the NSBA.NSBA CLE Cancellation Policy: • A full refund will be granted only when a cancellation request is received at least 72 hours prior to the live or distance-learning CLE event. • A cancellation request made less than 72 hours of the live or distance learning CLE event or following the live or distance-learning CLE event will be refunded, less a $30 processing fee. • You may send a substitute (e.g., someone from your firm) in lieu of cancelling. • The cancellation policy for a NSBA sponsored CLE event does not apply to independent third-party CLE providers, and attorneys are subject to their cancellation policy.

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FACULTY BIOS ____________________________________________________________________________________________________________________________

Joseph J. Donnelly Berry Law Firm Joseph Donnelly has over 7 years of experience representing veterans with VA disability claim appeals. Joseph has represented hundreds of veterans at VA Regional Offices and the Board of Veterans’ Appeals. Additionally, he has represented over 100 veterans in their appeals before the United States Court of Appeals for Veterans Claims. Joseph is a VA accredited attorney, a member of the National Organization of Veteran Advocates (NOVA), and a member of the CAVC Bar Association. Joseph’s past litigation experience also includes family, criminal defense, traffic, and employment law.

Jerusha L. Hancock Berry Law Firm For the past four years, Jerusha Hancock has successfully appealed hundreds of Veterans disability claims nationwide at VA Regional Offices and before the Board of Veterans’ Appeals. In addition to her accreditation before the Department of Veterans Affairs, Jerusha is admitted to practice before the Court of Appeals for Veterans Claims. Jerusha graduated from the University of Nebraska-Lincoln with a B.A. in 2002. She received a Master’s degree in counseling from Denver Seminary in 2005 and graduated from the University of Nebraska College of Law in 2008. Before joining the Berry Law Firm, Jerusha clerked for Chief Justice Michael Heavican of the Nebraska Supreme Court for over three years and then spent two years with Nebraska Appleseed in the Health Care Access Program.

Practice before the Board of Veterans’ Appeals and the U.S. Court of Appeals for Veterans Claims

December 11, 2018

Overview

• Claims before the Board of Veterans’ Appeals (BVA)• Appeals to the Court of Appeals for Veterans Claims (CAVC) • Appeals to the US Court of Appeals for the Federal Circuit (CAFC)

Board of Veterans’ Appeals

• The Board of Veterans’ Appeals is an administrative body comprised of Veterans Law Judges, who issue decisions appealed from the various regional offices across the US.

• The Board’s Rules of Practice can be found in 38 CFR Part 20.

• Certain procedural requirements must be met in order for the Board to review a claim.

Appeal

• Under 38 CFR §20.200, “an appeal consists of a timely filed Notice of Disagreement submitted in accordance with the provisions of §20.201, and either § 0.302(a) or §20.501(a), as applicable and after a Statement of the Case has been furnished, a timely filed substantive appeal.”

• Form 21-0958: Notice of Disagreement• VA Form 9: Substantive, formal appeal to the Board of Veterans’ Appeals.

Procedural Defects

• Procedural defects must be cured before the Board or Court can address a claim. However, claims will sometimes get certified to the Board or decided by the Board without being properly adjudicated below. If that’s the case, the Court will have to remand the claims.

• Practitioners don’t always know whether procedural requirements have been met for a variety of reasons.

Possible results from BVA Appeal

For claims properly certified, the Board can grant, remand, or deny a claim.

Granted Claim

• WIN? • It depends.

• Granted claims • Service connection, • Appropriate rating, and/or • Appropriate effective date.

• Board grants can contain implicit denials and must be carefully reviewed.• Granted claims are returned to the regional office for a new rating decision.• The new rating decision may be issued very quickly, or the RO may take their time.

Practitioners should monitor carefully.

Remanded Claims

• Returned to the Regional Office with specific instructions:• Medical examination,• A new examination with specific orders to consider aspects of the claims or

evidence of record, or • The association of records with the file.

• Remanded claims are disposed of with a rating decision (if it’s a grant of benefits) or a Supplemental Statement of the Case (if it’s a denial.) SSOCs are returned to the Board for review.

Remanded Claims

Veterans have the right for the Board to ensure the RO’s substantial compliance with

a remand order. Stegall v. West.

Denied Claims

• Claims denied by the BVA may be addressed by filing a motion for reconsideration to the Board or by appealing to the CAVC.

• A motion for reconsideration timely submitted tolls the CAVC appeal date• Board’s reply to a motion for reconsideration may not be issued as an order

from the Board, but as a letter. Easy to miss.

Hearings

• Veterans right to request at time substantive appeal (VA Form 9) is filed.• Takes place before Veterans Law Judge (VLJ).• May be conducted:

• In person at local RO (travel Board) or in Washington DC; or• By videoconference with VLJ.

• VLJ may not arrive at a decision prior to holding the hearing and having a transcript made part of Veteran’s record.

• Veteran may wait years for hearing.• Once a hearing option has been elected, the claim will remain pending

until the hearing is held or waived.• If the VLJ who held original hearing is subsequently unavailable to make

the decision, the veteran must be offered the opportunity for an additional hearing before the newly appointed VLJ.

Format of Appeal before the Board

• Briefs, additional information and motions do not have any particular format, but must contain the name of the veteran or claimant, the VA file or claims number, and the relief sought.

• Motions to advance on the docket follow the same format, and reasons include extreme financial hardship, serious illness, or advanced age (over 75).

• There are some procedural requirements the Board must follow. If it does not do so, the representative can request vacatur of the Board’s subsequent decision under 38 CFR § 20.904. Most important is the Board’s denial of due process:

Format of Appeal before the Board

• Prejudicial failure by the Board to afford the appellant a hearing;• When a Statement of the Case or a required Supplemental Statement of the Case

was not provided;• 38 C.F.R. § 20.1304 permits requests for change in representation, request for

personal hearing, or submission of additional evidence within 90 days following certification of an appeal to the Board;

• If evidence or argument is being submitted outside the 90-day window of time, then the motion for the action must demonstrate “good cause” for the delay:

• Illness of the claimant or the representative;• Death of the representative;• Withdrawal (for good cause) of the representative;• Discovery of evidence that was not available; or• Delay in transfer of record that prevented review;

• 38 C.F.R. § 20.903 requires that the Board allow claimant sufficient time for response (60 days) to any medical opinions or medical treatises the Board obtains and adds to the record.

US Court of Appeals for Veterans Claims

• Lifecycle of a CAVC Appeal• 120 days from the date of the Board’s decision to file notice of appeal, along with

the entries of appearance for counsel, fee agreement, and the declaration of financial hardship. Notice will be posted for the Board decision transmittal within 30 days, and the Record Before the Agency (RBA) within 60 days.

• Once the Board decision has been transmitted and the RBA certified and sent, the Court will issue a notice to file the appellant’s brief within 60 days.

• Within about a month, a Rule 33 conference will be scheduled with the Central Legal Services staff member and the OGC attorney. The appellant’s summary of issues (SOI) or briefing conference memo is due 14 days prior to the conference. The SOI goes to the CLS and opposing counsel; Rule 33 notice gets filed with the Court.

• At the briefing conference, opposing counsel will lay out Secretary’s position: full remand, partial remand, or defend.

• Either the joint motion for remand/partial remand or the appellant’s brief is due 30 days after the conference (generally overriding the Court’s order to file the Appellant’s brief within 60 days).


• Motions to stay the case or motions to extend deadlines are usually unopposed.• Motions must state the date to be extended, the revised date sought, the total number of

days already taken by extension, the total number of days granted to opposing party, and a statement as to whether or not other counsel is opposed to said motion.

• No more than 45 days may be granted for any particular filing without good cause.• Assuming you are a prevailing party through either a remand, partial remand, or

decision from the Court, you can get EAJA fees. • EAJA application deadlines are hard and fast, and if you miss it, you will not be able

to file out of time. The application must be submitted not later than 30 days after the Court’s judgment becomes final.

• In effect, the EAJA application is due no more than 30 days after the Mandate is issued, or not more than 60 days after the Judgment is entered.

• Entry of mandate on the docket is ministerial, and may not occur on the date of the mandate, practitioners must be diligent.


• Because these are the result of an agreement between the parties, the date of mandate for remanded appeals is often the same date as the final order:

• See Wade v. Wilkie, U.S. CAVC Docket No. 18-1929, Sep 27, 2018 (Not published).

• Contrast with: • Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Timeline

• Notice of Appeal - 120 days after Board decision (Rule 4(a))

• Notice of Docketing • Record Before the Agency - 60 days after Notice of

Docketing (Rule 10(a))• 14 days to dispute after service of RBA

• Summary of the Issues - 14 days prior to Rule 33 conference

• Rule 33 Staff Conference• Appellant’s Brief - Due the later of

• 60 days after the expiration of RBA dispute period; or• 30 days after the Rule 33 Conference

• Secretary’s Brief - 60 days after appellant’s brief is filed

• 14 days for appellant to make optional reply brief

• Record of Proceedings•14 days after reply brief is due or filed

• 14 days to dispute ROP

• Oral Argument - Must request within 14 days after reply brief is due or filed

• CAVC Decision• Motion for Reconsideration, Panel, or Full Court

Review - 21 days after decision• Judgment - Effective the later of:

• Expiration of time to submit a motion for reconsideration; or

• The date the Court makes a decision on any such motion

• Mandate - Generally 60 days after judgment is entered (UNLESS REMANDED)

• EAJA Application - 30 days after judgment is final –30 days after effective date of Mandate.


• Format of appeals before the CAVC generally follow the federal rules.• Practitioners must read and follow the rules of practice and procedure.

• https://www.uscourts.cavc.gov/court_rules_and_procedures.php

https://www.uscourts.cavc.gov/court_rules_and_procedures.php


• Rule 27 covers motions, which is an application for relief. It must:

• Contain or be accompanied by any material required by any of the Rules, along with proof of service;

• State with particularity the specific grounds on which it is based;• Describe the relief sought;• Indicate whether it is opposed or unopposed; and,• Must not be longer than 10 pages.


• Rule 28 covers the appellant’s brief, and should include:• Caption page;• Table of contents with page references;• A table of authorities, statutes, other authorities, and record cites;• Statement of the issues;• A statement of the case, showing the nature of the case, course of

proceedings, result below, and the facts relevant to the issues;• Record cites shall include the specific pages and citation to the pages in

parentheses;• Argument, beginning with the summary and containing the contentions; and,• Short conclusion with the precise relief sought.


• Rule 32 covers the form of briefs and other documents. • Generally though, 13-point font in Arial is used.

• You are limited to 10 pages for everything but briefs .• Briefs: 30 pages.• Reply briefs: 15 pages.

Tips for Practicing Before the CAVC

• Review the evidence to determine whether any material is weak or missing before your appeal to the Board.

• The CAVC is too late to introduce new evidence.• You can strengthen weak claims with statements or private medical opinions

• Read the Rules of Practice and Procedure before appealing to the CAVC.

• Get help when needed

US Court of Appeals for the Federal Circuit

• Follows the rules of practice for the Federal Circuit. These rules are a little more involved, and practitioners should consult the rules carefully to ensure compliance.

• http://www.cafc.uscourts.gov/rules-of-practice/notices

• Most attorneys will likely never take a case up to the Federal Circuit from the CAVC, since its jurisdiction is limited to:

• Erroneous “Rule of Law” interpretation;• Statutory or regulatory interpretation issues;• Legal questions regarding the jurisdiction of the CAVC; or,• Jurisdiction over constitutional issues.

http://www.cafc.uscourts.gov/rules-of-practice/notices


• Precedential opinions from the Federal Circuit are impactful, and careful consideration must be given to avoid creating case law that would harm veterans nationwide.

Questions?

Contact Information:[email protected]

402-466-8444

mailto:[email protected]

Challenges in Appeals to the BVA, CAVC, and CAFC

December 11, 2018

Challenges in BVA Appeals

• Not receiving decisions• Procedures and forms

• As discussed earlier, certain procedural requirements must be met for the Board to have jurisdiction of the claim. A notice of disagreement and VA Form 9 must be timely filed to confer jurisdiction.

• The VA routinely fails to notify veterans and counsel that a decision has been made, or will fail to send copies.

• An attorney with access to the electronic claims file (known as VBMS) may be able to find copies of decisions there, but not always.


• Attorneys can approach the issue multiple ways:

• If the client also failed to receive a decision, get a signed, notarized statement from the veteran to submit to the VA.

• Request that the untimely appeal be considered timely for good cause (i.e. the veteran moved and did not notify the VA or counsel, or the veteran was ill at the time and counsel did not receive a copy).

• If the appeal is rejected, you can appeal the finding that it was not timely and argue due process if there’s a factual basis.


• Lack of records• Some clients will already have a copy of their claims file, but many won’t. It can take

months to receive the record, and even then it might not be complete. Attorneys should make periodic FOIA requests in order to get updated copies of the file.

• Even when the records are received, the copy of file might not contain the things counsel actually needs in order to proceed. The file might not contain any of the decisions, for example, or may not contain copies of the compensation and pension reports that the Board will base its decision upon. You may not know who performed the examination or whether they had sufficient credentials.

• The Board relies on C&P examinations in reaching its decisions, and if the examination record was inadequate to decide the claim, we might not catch it until we have appealed the Board decision.

• Examiners are presumed competent, but subject to challenge. Certain types of exams must be carried about by examiners with the appropriate credentials. However, you may have no way of knowing if the examiner was competent in that area.


• Missed examinations

• Regulations require that veterans either attend the scheduled compensation and pension examinations, or provide disability benefits questionnaires (DBQs) or independent medical opinions of their own. If a veteran fails to appear for an examination, good cause must be shown.

• Counsel must respond to decisions where a claim is denied based on a missed examination. Many times, the VA will reschedule the examination when asked.

• The private contractors that set up examinations sometimes do not provide sufficient notice of an examination, or a veteran may be unable to attend due to illness, travel, or some other reason.

• Some veterans have so much distrust for the VA that they refuse to attend C&P exams. At that point, the only option is to find a doctor willing to fill out a DBQ, seek an IMO, or drop the claim.


• Best practices• Notify the Board if you do not have a copy of the veterans’ claims file, or if

you believe records are missing. The Board must provide a copy of the file and sufficient time for review.

• If there is a question about the examiner’s qualifications or the adequacy of the examination, raise it to the Board during the 90-day period.

• If there was a missed examination, and the veteran had good cause, notify the Board during the 90-day window.

• A VLJ may be more amenable to a due process argument if you can show there was some reason that neither veteran nor counsel received a copy of the decision. (However, the presumption of regularity generally applies.)


• Hearings

• Can be waived, but• Used judiciously, hearings can be very beneficial. However, keep in mind that

there are a limited number of slots for hearings, and requesting one can delay a case by months if not years.

• Hearings are on the record, and the veteran is sworn in, but it’s generally informal.

• Be sure your client is both prepared and credible.


• Motions to advance on the docket

• In cases where the veteran is over the age of 75, terminally ill, or in extreme financial hardship, a motion may be made to advance on the docket.

• On occasion, the Board will advance a case on the docket, such as when there’s been widespread natural disaster (recent hurricanes a case in point).

Challenges in CAVC Appeals – Deadlines

• You have 120 days to file the notice of appeal with very few exceptions.

• The time may be equitably tolled for homelessness, severe mental illness, or other illness.

• You must have a separate power of attorney and fee agreement to represent a veteran at the CAVC, even if you represented them below.

• For this reason, if no other, timely reviewing Board decisions is imperative. If your client is hard to reach or ill, the more time you can give them to sign and return the new contract, the better off you’ll be.

• The time to file a notice of appeal may be tolled by filing a motion for reconsideration.

Challenges in CAVC Appeals

• Court Review of Board Decisions

• Review is limited to the evidence considered by the Board and included in the Record Before the Agency (RBA).

• You will rarely have a case where the evidence in the RBA is sufficient for the Court to order the relief sought. However, if you can convince the Court that the Board committed a prejudicial procedural error, the Court will remand the claim(s), at which point you can submit additional evidence and/or arguments.

• The OGC must certify that that RBA is complete, but counsel should review the RBA to ensure that everything mentioned in the Board’s decision is actually in the record. If the RBA contains an error (like records from another veteran) or is missing something, you should contact opposing counsel to see if an amended RBA can be filed.

Challenges in CAVC Appeals – Common Errors

• Change in law, rules or case law within 120-day appeal period or while claims currently on appeal

• Not precisely an error, but grounds to vacate Board decision

• The VA failed to comply with the 38 U.S.C. § 5103(a) notice requirements, which are:

• Inform the claimant of any information, and any medical lay evidence, not previously provided to the Secretary that is necessary to substantiate the claims.

• Requires the VA to indicate which portion of that information and evidence, if any, is to be provided by the claimant.

• The VA must indicate which portion of that information and evidence the Secretary will attempt to obtain on their behalf.


• The Board relies on notice provided to the claimant after the initial rating decision is issued, as § 5103(a) requires prior notice.

• When a veteran requests a hearing, the hearing officer has specific notice duties as well. The hearing officer must explain the outstanding issues material to the claim, and suggest that a claimant submit evidence on an issue where the record is missing evidence.


• The VA failed in its Section § 5103A duty to assist the claimant in obtaining necessary evidence.

• The VA failed in its statutory duty to obtain existing records in the possession of any Federal department

• The VA failed to seek verification of PTSD stressors from the US Army and Joint Service Records Research Center (JSRRC).

• The VA failed in its duty to provide a medical examination or opinion. § 5103A(d) McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006)


• The VA failed in its duty to ensure the medical examination is adequate.

• The physician is not qualified.• The physician fails to consider lay statements describing relevant symptoms.• The physician fails to provide a rationale for a conclusion.• The physician decides non-medical facts.• The physician relies on an inaccurate factual premise.• The physician gives an inconclusive opinion without explaining why a

conclusion cannot be reached.• The physician uses an improbably high evidentiary standard.• The physician does not address all legal theories of entitlement to service

connection when raised.• The physician doesn’t provide the necessary detail for painful motion of the

joints.


Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must be "based upon consideration of the veteran's prior medical history and examinations and also describe[] the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007)


• The Board relied on its own unsubstantiated medical opinion

• The Board, like a veteran (in most cases), is a layman. The Board may only consider independent medical evidence and may not substitute its own medical opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) rev'd on other grounds by Hodge v. West, 155 F.3d 1356 (1998)


• The Board made a finding of material fact that is “clearly erroneous.”• The Board provided an inadequate statement of reasons and bases

under U.S.C.S. § 7104(d). • The Board failed to explain why it rejected or downgraded favorable

evidence.• The Board erred in its assessment of medical evidence. • The Board erred in its assessment of relevant lay evidence.• The Board failed to consider or remand for development of a claim or legal

theory reasonably raised by the record. i.e. • The VA ignored whether a service-connected condition aggravated a secondary

condition, where raised by the claimant and record.


• The VA violated the US Constitution, statutes, VA regulations, instructions in the adjudication manuals, or VA General Counsel Precedent Opinions.

• The VA failed to comply with a BVA or CAVC remand order. Stegall• The Board failed to reopen a claim supported by new and material

evidence.• The Board denied a higher disability rating for a mental disorder because

the veteran does not exhibit certain symptoms.• The VA failed to assign separate disability ratings for separate symptoms.• The Board found that the evidence does not satisfy the current disability

requirement because the disability was not diagnosed on the latest exam.


• Your odds of success appealing to the Court of Appeals for the Federal Circuit (CAFC) are very poor compared to the CAVC.

• If the Court of Appeals issues an unfavorable Memorandum Decision (1 judge), the Court also often denies a panel or en banc decision.

• Appeal to the CAFC should only be contemplated in the event there is a clear error at law.

• The CAFC, by statute, cannot consider any case based on a controversy of fact.• The CAFC will summarily dismiss most of the appeals from the CAVC.

Federal Circuit Court of Appeals (CAFC)

Berry Law Firm, in Kyhn v. Shinseki, successfully reversed and remanded a CAVC opinion.

• In Kyhn v. Shinseki, the judge requested additional information about VA policies and procedures.

• Instead of providing citation to the VA Policy and Procedures Manual, or other established documents the Court could take judicial notice, the VA prepared affidavits.

• The CAFC found these extraneous documents outside the RBA and new evidence. The CAVC exceeded its jurisdiction in considering them.

TIPS for ADVOCATES

Review the evidence to determine whether any material is weak or missing before your appeal to the Board: 1) in-service event, 2) current disability, 3) related to service (caused, aggravated, or secondary to a SC condition).

a. The CAVC is too late to introduce new evidence.c. You can buttress the record with private medical opinions,

veterans’ lay statements, or other evidence.b. If you later discover the RBA is missing any evidence, you can

challenge the RBA, even out of time, if necessary.You can appeal not only a denial of service connection, but the effective dates and ratings of service-connected conditions.

TIPS for ADVOCATES

1. Remember to view the relevant diagnostic codes. 38 C.F.R. Part 4.• Symptoms may not be exhaustive, but demonstrative.• Board has to consider all the favorable evidence.

2. Remember to view the Examinations Relied upon by the Board.• Did the examiner offer a reasoned explanation for his opinion.

3. Consider whether any symptoms were left unadjudicated or any other diagnostic codes for a higher rating are applicable.

TIPS for ADVOCATES

Go through the record methodically.• Were the Board’s Reasons and Bases Adequate?• Were the Medical Examinations Adequate?• Did the Board Consider all the Favorable Evidence?• Were the Veteran’s Records Obtained Prior to the Board’s Decision?• Did the Board Need to Provide a Medical Examination?• Did the Board Ensure Substantial Compliance with Prior Remands?IT IS YOUR JOB TO KEEP LOOKING UNTIL YOU FIND THE ERROR.

TIPS for ADVOCATES

REMEMBER: In the majority of cases, the Board made an error

Questions?

Contact Information:[email protected]

402-466-8444


EthicsJerusha L. Hancock, Esq.

Joseph Donnelly, Esq.Berry Law Firm

December 11, 2018

Overview

• Accreditation and Ethical Advocacy 38 CFR Part 14• Technology Competence 38 CFR Part 1; ABA Model Rule 1.1• Rules of Practice before the BVA, CAVC and CAFC

• 38 CFR Part 20; • United States Court of Appeals for Veterans Claims Rules of Practice and

Procedure https://www.uscourts.cavc.gov/rules_of_practice.php• United States Court of Appeals for the Federal Circuit, Rules of Practice

http://www.cafc.uscourts.gov/rules-of-practice/rules

https://www.uscourts.cavc.gov/rules_of_practice.php

http://www.cafc.uscourts.gov/rules-of-practice/rules

Accreditation and Ethical Advocacy

• Governing law and regulation

• 38 C.F.R. §§ 14.626-14.637;• 38 U.S.C. §§ 5901-5905;• 38 U.S.C. §§ 1.600–1.603; and• Your state rules of professional conduct.

Accreditation

• Why do you need it? • 38 C.F.R. §14.629(b)(1) No individual may assist claimants in the preparation,

presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose.

• Who needs it?• § 14.629(c)(1) (2) Attorneys and Law Firms

• Claimant’s attorney and attorneys associated with claimant’s attorney of record, or employed by same legal services office may assist in representation of the claimant.*

• With claimant consent.• Office of General Counsel interpretation of this provision requires all such attorney members

of a firm to be accredited if their work involves assisting claimants in the preparation, presentation, and prosecution of claims for veterans benefit. https://www.va.gov/ogc/accred_faqs.asp

https://www.va.gov/ogc/accred_faqs.asp

Accreditation

• Who doesn’t need it?• § 14.629(c)(3) Legal interns, law students, paralegals employed by law firms.

• May assist in the preparation, presentation, and prosecution of claims for veterans benefit under the direct supervision of an attorney of record designated under 38 C.F.R. §14.631(a).

• May not be independently accredited. *• 38 C.F.R. § 14.631(e)(1) Only one organization, representative, agent, or attorney will be

recognized at one time for the prosecution of a particular claim https://www.va.gov/ogc/accred_faqs.asp .

• With claimant consent.• 38 C.F.R. § 14.629(c)(4) Unless revoked, consent provided under 38 C.F.R. § 14.629(c)(2) or

(c)(3) shall remain effective in the event the claimant’s original attorney is replaced by another member of the same law firm or legal services office.

https://www.va.gov/ogc/accred_faqs.asp

Accreditation

• Obtaining Accreditation:38 C.F.R. §14.629(b)

• www.va.gov/ogc/accreditation.asp ;• VA Form 21a;• Determination of character and fitness; and• Letters of Good Standing for every bar, court, Federal or State agency to which you are

admitted help with character and fitness determination. • For agents, a written examination 38 C.F.R. §14.629(b)(1)(i).

http://www.va.gov/ogc/accreditation.asp

Accreditation

• Maintaining accreditation• 38 C.F.R. § 14.629(b)(1)(iii) requires completion of three hours of approved CLE

within the one-year period starting on the day the VA accords the attorney initial accreditation status.

• Specific topics required,• Must be a minimum of 3 hours.

• 14.629(b)(1)(iv) requires completion of additional three hours of qualifying CLE on veterans benefits law and procedure not later than 3 years from date of initial accreditation.

• Must be a minimum of three hours.• 14. 629(b)(4) requires annual certification with information about any court, bar, or

Federal of State agency admitted.• Must notify VA within 30 days of any change in status,• Include CLE attendance as required with this annual certification.

Accreditation

• Losing accreditation

• 38 C.F.R. § 14.633 describes actions that may cause termination of accreditation:

• Violation of or refusal to comply with the laws administered by VA or with the regulations governing practice before VA including the standards of conduct in§ 14.632;

• Knowingly presenting or prosecuting a fraudulent claim against the United States, or knowingly providing false information to the United States;

• Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or advising or consulting, concerning a claim;

• Knowingly presenting to VA a frivolous claim, issue, or argument;• A claim, issue, or argument is frivolous if the individual providing representation under §

14.630, representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law.

Accreditation

• Losing Accreditation (continued)• Suspension or disbarment by any court, bar, or Federal or State agency to which such individual providing

representation under § 14.630, representative, agent, or attorney was previously admitted to practice, or disqualification from participating in or appearing before any court, bar, or Federal or State agency and lack of subsequent reinstatement;

• Charging excessive or unreasonable fees for representation as determined by VA, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit; or

• Any other unlawful or unethical practice adversely affecting an individual's fitness for practice before VA.• Suspension is an appealable decision.

• In Bates v. Nicholson, the U.S. Court of Appeals for the Federal Circuit held that notwithstanding 38 C.F.R. § 14.633(g), which provided that VA General Counsel accreditation-cancellation decisions are final, the BVA and the U.S. Court of Appeals for Veterans Claims (CAVC) have jurisdiction to review a VA accreditation-cancellation decision. 398 F.3d 1355, 1365–66 (Fed. Cir. 2005); 24 Vet. App. 457 (2009).

• But, attorneys who behave in an unprofessional manner and who are suspended from the practice of law by a particular state may also be suspended by the CAVC. In Re: R. Edward Bates, Member of the Bar, 24 Vet. App. 457 (2009).

Admission

• The CAVC and the CAFC each have their own rules of Admission and Practice:

• CAVC: https://www.uscourts.cavc.gov/rules_of_admission_and_practice.php

• CAFC: http://www.cafc.uscourts.gov/contact/attorney-admission-information

https://www.uscourts.cavc.gov/rules_of_admission_and_practice.php

http://www.cafc.uscourts.gov/contact/attorney-admission-information

Ethical Advocacy

• VA’s organic ethical rules

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. § 14.630 shall

• Faithfully execute duties;• Be truthful with claimants and VA;• Provide competent representation;

• Knowledge, skill, thoroughness, and preparation;• Understanding issues of fact and law applicable to the claim to include title 38, U.S.C. and title

38 C.F.R.; and• Act with reasonable diligence and promptness.

Ethical Advocacy

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. §14.630 shall not

• Violate standard of conduct as described in this section (§14.632);• Circumvent a rule of conduct through the actions of another;• Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;• Violate any of the provisions of title 38, U.S. Code, or title 38, Code of Federal Regulations;• Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited

by law or regulation;• Solicit, receive, or enter into agreements for gifts related to representation provided before an agency of original

jurisdiction has issued a decision on a claim or claims and a Notice of Disagreement has been filed with respect to that decision;

• Delay without good cause, the processing of a claim at any stage of the administrative process;• Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered

by VA;• Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly

conduct of administrative proceedings before VA;• Disclose, without the claimant’s authorization, any information provided by VA for purposes of representation;

or,• Engage in any other unlawful or unethical conduct.

Ethical Advocacy

• 38 C.F.R. § 14.632 An attorney, agent, or representative providing representation under 38 C.F.R. § 14.630, in addition to complying with the standards of conduct of this section, also shall not

• Engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.

Ethical Advocacy - Fees

• Background• Before passage of the Veterans Judicial Review Act (VJRA) (1988) – limit of

$10.00 fee to assist veterans with disability benefits or appeals;• After VJRA, Veterans and Attorneys could enter into an agreement for fees in

excess of $10.00 only after a final BVA decision had been promulgated; • 2006 - Veteran’s Benefits Health Care and Information Technology Act -

Veterans and Attorneys can now enter into an agreement for fees for appeals of claims where a Notice of Disagreement (NOD) to a Rating Decision has been submitted after June 20, 2007.

• 38 C.F.R. §14.636, 38 U.S.C. §§ 5902, 5904, 5905


• 38 CFR § 14.636 (b) “Only accredited agents and attorneys may receive fees from claimants or appellants for their services.”

• 38 CFR § 14.636 (c) defines the two separate events which “trigger” eligibility for a fee to an attorney or agent:

• NOD filed before June 20, 2007 – First final decision of the BVA, or an appeal to the CAVC; or

• NOD filed after June 20, 2007 – Filing of a NOD.• With the upcoming changes due to the recent passage of HR 2288, the

Veterans Appeals Improvement and Modernization Act, the trigger event will become the claimant’s “notice of the AOJ initial decision under section 5104 of this title.” (38 U.S.C. §5104).


• 38 C.F.R. §14.636(e) dictates how fees may be assessed:

• Fixed fee;• Hourly rate;• Percentage of benefits; or,• Combination of the above.


• In determining whether fees are reasonable, the Secretary will weigh the following:

• Extent and type of services rendered;• The complexity of the case;• The level of skill and competence required of the representative in giving the

services;• Amount of time spent on the case;• Results of representation achieved – including amount of benefits recovered;• Level of review to which the claim was taken and the level of review at which the

representative was retained;• Rates charged by other representatives for similar services; and,• Whether and to what extent the payment of fees is contingent upon the results

achieved.


• How much is reasonable? 38 C.F.R. 14.636(f)

• 20% contingent fee agreements presumed reasonable. • Fees in excess of 33 1/3% are presumed unreasonable.

• Fees can be charged to a “disinterested third party.” 38 C.F.R. §14.636(d)(2)

• These fees cannot be contingent in whole or in part, on whether the matter is resolved in a manner favorable to the claimant or appellant.


• 38 CFR § 14.636 (g) defines a valid fee agreement:• “Must be in writing and signed by both the claimant or appellant and the agent or

attorney.”• Must include:

• The name of the veteran;• The name of the claimant or appellant if other than the veteran;• The name of any disinterested third‐party payer and the relationship between the third‐party

payer and the veteran, claimant, or appellant;• The applicable VA file number; and • The specific terms under which the amount to be paid for the services of the attorney or agent

will be determined. • Fee agreements should also include a section laying out how any additional

costs and expenses will be reimbursed to you in the event that you are successful in obtaining an award of benefits. 38 CFR § 14.637.


• 38 CFR § 14.636 (g) (2) “Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits.”

• Regardless of the type of agreement, VA will not reimburse you for costs and expenses. You must bill the client directly.

Bill to client:• Not limited to acceptance of 20% fee;• Fee agreement does not need to be filed with the AOJ within 30 days;• Attorney must make decision regarding whether to bill for a fee;• If client does not pay, Attorney may have to refer to collection;• Fee agreement must be filed with the OGC within 30 days of execution 38 C.F.R. § 14. 636(g)(3).

• Direct Pay (VA withholds fee):• VA makes decision as to eligibility for fee;• Attorney does not have to bill the client;• If AOJ does not pay, Attorney can appeal;• Fee limited to 20% of back pay award 38 C.F.R. § 14.636(h)(1)(i);• Fee agreement must be sent to AOJ within 30 days of execution 38 C.F.R. § 14. 636(g)(3),(h)(4).


• Equal Access to Justice Act fees received for CAVC or CAFC appeals must be offset from any future contingency awards for the same claims

• Pub. L. 102–572, title V, § 506(c), Oct. 29, 1992, 106 Stat. 4513, provided that:• “Section 5904(d) of title 38, United States Code, shall not prevent an award of fees and

other expenses under section 2412(d) of title 28, United States Code. Section 5904(d) of title 38, United States Code, shall not apply with respect to any such award but only if, where the claimant’s attorney receives fees for the same work under both section 5904 of title 38, United States Code, and section 2412(d) of title 28, United States Code, the claimant’s attorney refunds to the claimant the amount of the smaller fee.”

•

https://www.congress.gov/public-laws/102nd-congress#572

https://www.law.cornell.edu/rio/citation/106_Stat._4513

https://www.law.cornell.edu/uscode/text/38/5904#d



https://www.law.cornell.edu/uscode/text/38/5904


Competence in Technology

• Governing law and regulation

• 38 C.F.R. §§ 14.632;• 38 U.S.C. §§ 5902,5904;• 38 U.S.C. §§ 1.600–1.603; and• Your state rules of professional conduct


• Client-Lawyer Relationship Model Rule 1.1 – Competence• Technological competence speaks to the skill, thoroughness and preparation necessary for

representation Comment 8 to Rule 1.1(adopted in 2012) A lawyer should keep abreast in changes in law and its practice, including the benefits and risks associated with relevant technology.

• As of March 2018, two more states have joined Nebraska to make 30 that have adopted this ethical duty.


• VBMS (Veterans Benefits Management System) • Access to certain electronic records relevant to representation.• To gain access and keep it, must comply with VA standards for security and

confidentiality of Veterans information See 38 C.F.R. §§ 1.600 to 1.603 for rules governing expanded remote access to Veterans claims records.

• CM/ECF required at CAVC and CAFC• https://www.uscourts.cavc.gov/e-filing.php• http://www.cafc.uscourts.gov/cm/ecf/case-management/electronic-case-files

https://www.uscourts.cavc.gov/e-filing.php

http://www.cafc.uscourts.gov/cm/ecf/case-management/electronic-case-files

Competence in Technology - VBMS

• Can you be an effective advocate for your client’s appeal to the Board of Veterans’ Appeals without obtaining VBMS access?

• Maybe not. In our experience, VA has refrained from mailing hard copy decisions, claiming attorneys are nonetheless responsible for meeting appeal dates because VBMS contained the decision.

• Some Veterans Law attorneys associated with the National Organization of Veterans Advocates have discussed whether or not a petition to the Court of Appeals for Veterans Claims is appropriate.

• For now, paper decisions are still necessary: As recently as June this year, the Director for Compensation Services assured a NOVA forum participant that VA is insisting on strict adherence to 38 C.F.R. § 3.103 which requires notification in writing of decisions affecting payments or granting relief.

Rules of Practice

• Practice before the Board of Veterans’ Appeals requires the same accreditation requirements as needed to represent veterans at the Regional Office level.

• Practice before the CAVC requires admission to the CAVC bar governed by Rule 46.

• Must be a person of “good moral character and repute” who has been admitted to practice to the US Supreme Court or highest court of any state, and is in good standing.

• Non-attorneys may be admitted if they are directly supervised by an admitted attorney or is employed by an organization chartered by Congress and is recognized by the VA for claims representation and can show an understanding of procedures and jurisdiction of the Court, and proficiency in representation.

Rules of Practice

• CAVC• Require admission to the CAVC bar governed by rule 46 of the Court’s Rules

of Practice and Procedure• Must be a person of “good moral character and repute” who has been admitted

to practice to the US Supreme Court or highest court of any state, and is in good standing.

• Non-attorneys may be admitted if they are directly supervised by an admitted attorney or is employed by an organization chartered by Congress and is recognized by the VA for claims representation and can show an understanding of procedures and jurisdiction of the Court, and proficiency in representation.

Rules of Practice

• CAFC• Require admission to the CAFC bar governed by Federal Rule of Appellate

Procedure Rule 46 and Federal Circuit Rule 46.

• Must be a person of “good moral character and repute” who has been admitted to practice to the US Supreme Court or highest court of any state, another United States court of appeals, or a United States District Court.

Rules of Practice

• CAVC and FRAP Rule 38 cover frivolous filings. If a filing is deemed frivolous, the Court can issue an order for an appropriate response, which includes sanctions, dismissal of the appeal, or reduction in any award.

• Failure to take any step under the Rules or compliance with an order by the Court, may also result in dismissal of the appeal or assessment of costs.

Rules of Practice

• Multiple “show cause” orders by the CAVC may result in referral to the Panel for consideration. The Court generally follows the ABA’s Model Rules for professional responsibility, and the Rules of Admission and Practice https://www.uscourts.cavc.gov/rules_of_admission_and_practice.php

• The CAFC publishes its Attorney Discipline rules within the Rules of Practice at page 198 http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/MASTERFederalCircuitRulesofPractice-December2018.pdf

https://www.uscourts.cavc.gov/rules_of_admission_and_practice.php

http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/MASTERFederalCircuitRulesofPractice-December2018.pdf

CAVC Rules of Discipline

• Any person, including the Clerk, any judge, panel of judges, or entity may file an accusation of professional misconduct (called a grievance). It’s then referred to the Chief Judge for consideration (unless the grievance is filed by a judge, and then it’s referred to the Panel). If the Chief Judge determines that there’s no prima facie validity, the matter will be closed.


• If referred to the Panel:• The Panel determines that the allegations, if true, would not constitute

misconduct, or it’s not within the Court’s disciplinary authority, return to the filing party with notice.

• Issue a show cause order as to why the grievance should not be referred to the Committee for action under Rule 2

• Dismiss the grievance as unfounded or unsupported by sufficient evidence.• If the grievance is uncontested, issue a show cause order to show why a

specific discipline should not be imposed.• If referred to Committee, report will be issued with findings and recommended

discipline, if any.


• Discipline will be imposed only if there’s a finding of clear and convincing evidence that the practitioner engaged in professional misconduct.

• Rule 7 states that a practitioner convicted of a felony or a lesser crime involving moral turpitude will be suspended from practice before the Court. Conviction of any other crime will result in the Chief Judge reviewing as in grievances above.

• The Court practices reciprocal discipline. • Discipline may consist of disbarment, suspension from practice before

the Court, monetary sanction, public reprimand, private admonition, or any other discipline the Court deems appropriate.

Ethics

• Questions?

Contact Information

Berry Law [email protected]@jsberrylaw.com

2650 N 48th StLincoln, NE 68504

402-466-8444ptsdlawyers.com

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McLendon v. Nicholson, 20 Vet.App. 79 (2006)

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative Treatment

Distinguished by Casteel v. McDonald, Vet.App., July 31, 2015

20 Vet.App. 79United States Court of Appeals for Veterans Claims.

William P. McLENDON, Appellant,v.

R. James NICHOLSON, Secretaryof Veterans Affairs, Appellee.

No. 04–0185.|

June 5, 2006.|

As Amended Aug. 7, 2006.

SynopsisBackground: Veteran appealed decision of the Boardof Veterans' Appeals (BVA) that denied entitlement toservice connection for a chronic low-back disability.

[Holding:] The Court of Appeals for Veterans Claims,Kasold, J., held that Board's determination thatno Department of Veterans Affairs (VA) medicalexamination was necessary to adjudicate veteran's service-connection was arbitrary and capricious.

Set aside and remanded.

West Headnotes (2)

[1] Armed ServicesMedical examination or opinion

In disability compensation claims, theSecretary of Veterans Affairs (VA) mustprovide a VA medical examination whenthere is: (1) competent evidence of a currentdisability or persistent or recurrent symptomsof a disability; (2) evidence establishingthat an event, injury, or disease occurredin service or establishing certain diseasesmanifesting during an applicable presumptiveperiod for which the claimant qualifies; (3)an indication that the disability or persistent

or recurrent symptoms of a disability may beassociated with the veteran's service or withanother service-connected disability, but (4)insufficient competent medical evidence onfile for the Secretary to make a decision on theclaim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §3.159(c)(4)(i).

1357 Cases that cite this headnote

[2] Armed ServicesDetermination

Determination of the Board of VeteransAppeals (BVA) that no Department ofVeterans Affairs (VA) medical examinationwas necessary to adjudicate claim for serviceconnection for chronic low-back disabilitywas arbitrary and capricious, where Boardnever addressed whether evidence indicatedthat veteran's disability might be associatedwith an in-service event, which is third elementto consider when assessing need for a medicalexamination in a disability compensationcase. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §3.159(c)(4)(i).


Attorneys and Law Firms

*79 Richard A. LaPointe, of Marco Island, Florida, wason the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell,Assistant General Counsel; Brian B. Rippel, DeputyAssistant Counsel; and Thomas E. Sullivan, all ofWashington, D.C., were on the brief for the appellee.

*80 Before GREENE, Chief Judge, and KASOLD andMOORMAN, Judges.

Opinion

KASOLD, Judge:

Vietnam War veteran William P. McLendon appeals,through counsel, a January 15, 2004, decision of the Boardof Veterans' Appeals (Board) that denied entitlement toservice connection for a chronic low-back disability. Mr.

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McLendon argues that the Board erred in its evaluation ofthe evidence and that the Secretary failed to provide himwith a VA medical examination pursuant to 38 U.S.C. §5103A. Appellant's Brief (Br.) at 6–7. He also asserts thatthe Secretary failed to comply with the notice provisionsrequired by 38 C.F.R. § 3.159(b) (2005). Appellant's Br. at3–6. The Secretary responds that Mr. McLendon receivedadequate notice and that the Board properly concludedthat a VA medical examination was not necessary to makea determination on his claim. Secretary's Br. at 6. For thereasons set forth below, the decision of the Board will beset aside and the matter remanded for readjudication.

I. BACKGROUND

Mr. McLendon served on active duty in the U.S. MarineCorps from December 1963 to December 1967. Record(R.) at 12. In May 2001, he filed a claim for compensationfor a low-back condition. R. at 62–67. Although he didnot seek medical treatment at the time, Mr. McLendonstated that, while serving in Spain in 1964 or 1965, he “wasstanding in a landing craft on the beach that was beingloaded when [he] fell back into the boat and landed onmy back on a steel lifting ring.” R. at 77. Mr. McLendonalso submitted medical statements prepared in 2001 byDrs. Maniscalco and Bearison, private physicians, statingthat he suffered from a low-back disability. R. at 57,59. Both opinions also noted that this disability couldhave been caused by the in-service injury reported by Mr.McLendon. Specifically, Dr. Maniscalco indicated that“[t]he process of degeneration may have been initiatedby the fall that he had onto his lower back.” R. at 57.In addition, Dr. Bearison stated that Mr. McLendon's“history is that of injuring his back when he fell onto asteel object on a boat” while in the military and suggestedthat “[i]t is within the realm of medical possibility that Mr.McLendon may have produced significant disk damage tohis lumbar spine to initiate the degenerative process whichfinally led to him needing to have surgery.” R. at 59.

In May 2002, without providing Mr. McLendon a VAmedical examination, a VA regional office (RO) deniedservice connection. The RO found that a 20–year gapexisted between active service and the first private medicalrecords showing treatment for a low-back disability,and further noted that Mr. McLendon's service medicalrecords did not reflect any injury or diagnosis of a back

disability. R. at 321. Mr. McLendon appealed to theBoard.

In the decision on appeal, the Board considered privatemedical records from 1993 forward that confirmed acurrent low-back disability, as well as Mr. McLendon'sassertions of a history of back pain since 1964 or 1965,as recorded in those records. R. at 1–8. It also consideredthe lack of relevant in-service medical treatment, andspecifically noted that Mr. McLendon's service-separationexamination did not reveal any back injury or disability.The Board rejected the two 2001 private medical opinionssubmitted by Mr. McLendon as incompetent because theyrelied on history provided by Mr. McLendon and wereotherwise “speculative and not definitive” with regard towhether his current back disability was service connected.The Board concluded that a VA medical examination wasnot warranted because the evidence *81 of record wassufficient to decide the claim. Ultimately, the Board foundthat the in-service injury had occurred but that it had“resolved without leaving chronic residual disability,” andit denied Mr. McLendon's claim. R. at 7. In addition, theBoard found compliance with the statutory and regulatoryrequirements of the Veterans Claims Assistance Act of2000 (VCAA), Pub.L. No. 106–475, 114 Stat.2096, nowcodified, in part, in 38 U.S.C. §§ 5103(a) and 5103A. R.at 3.

II. ANALYSIS

A. Medical Examination Requirement

[1] In disability compensation claims, the Secretary mustprovide a VA medical examination when there is (1)competent evidence of a current disability or persistentor recurrent symptoms of a disability, and (2) evidenceestablishing that an event, injury, or disease occurredin service or establishing certain diseases manifestingduring an applicable presumptive period for which theclaimant qualifies, and (3) an indication that the disabilityor persistent or recurrent symptoms of a disability maybe associated with the veteran's service or with anotherservice-connected disability, but (4) insufficient competentmedical evidence on file for the Secretary to make adecision on the claim. See 38 U.S.C. § 5103A(d)(2);Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345F.3d 1334, 1355–57 (Fed.Cir.2003); Wells v. Principi, 326F.3d 1381, 1384 (Fed.Cir.2003); 38 C.F.R. § 3.159(c)(4)(i).

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Thus, there are four elements to review to determine if amedical examination is necessary.

The Board's ultimate conclusion that a medicalexamination is not necessary pursuant to section 5103A(d)(2) is reviewed under the “arbitrary, capricious, an abuseof discretion, or otherwise not in accordance with law”standard of review. See 38 U.S.C. § 7261(a)(3)(A) (Courtshall hold unlawful decisions by the Board that are“arbitrary, capricious, an abuse of discretion, or otherwisenot in accordance with law”); Marrero v. Gober, 14Vet.App. 80, 81 (2000) (holding that the Court reviewsthe Board's application of the law to the facts under thedeferential “arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law” standardof review); see also Kent v. Principi, 389 F.3d 1380,1384 (Fed.Cir.2004) (reiterating that the “ ‘arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with law’ standard of review ... contemplatesde novo review of questions of law”). The Board'sdeterminations that underlie this conclusion, however,are reviewed by this Court using a standard that ismultifaceted. See Butts v. Brown, 5 Vet.App. 532, 539–40 (1993) (en banc) (discussing the various standards ofreview).

1. Competent Evidence of CurrentDisability or Recurrent Symptoms

[2] The first element in determining the need for a medicalexamination is whether there is competent evidence ofa current disability or persistent or recurrent symptomsof a disability. As stated, this element requires only (1)an assessment of whether there is evidence of a currentdisability or persistent or recurrent symptoms thereof and(2) an assessment that such evidence is competent. See38 U.S.C. § 5103A(d)(2)(A); see also Charles v. Principi,16 Vet.App. 370, 374 (2002) (holding that a Board'sacknowledgment of a diagnosis of tinnitus in the recordwas sufficient to establish “ ‘competent evidence that[the claimant] has a current disability’ ” (quoting 38U.S.C. § 5103A(d)(2)(A))). Neither requires the weighingof competing facts. The former merely involves anassessment of the existence of such evidence in the record.The *82 latter involves an assessment of whether the

evidence is competent. 1

In this case, although the Board needed to determine onlythe threshold question of whether there was competentevidence of a current disability or recurrent symptomsthereof, it actually went beyond that determination andfound as a factual matter that Mr. McLendon currentlysuffers from a low-back disability. See R. at 7. Nothingprecludes the Board from weighing the evidence inthe record, supportive and nonsupportive of a currentdisability and making this finding. Moreover, a Boardfinding that the evidence preponderates for or againstthe presence of a current disability is a finding of fact,subject to the “clearly erroneous” standard of review, seeWashington v. Nicholson, 19 Vet.App. 362, 367–68 (2005)(holding that it is the Board's responsibility to determinethe probative weight of the evidence of record); Wood v.Derwinski, 1 Vet.App. 190, 193 (1991) (same); see alsoGilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (holding thata Board's findings of fact are reviewed under the “clearlyerroneous” standard of review), and, when favorable tothe claimant, as it is here, not subject to review by theCourt, see 38 U.S.C. § 7261(a)(4) (factual findings can beoverturned only if clearly erroneous); Snyder v. Principi,15 Vet.App. 285, 299 (2001) (holding that, except wherethe Board lacked jurisdiction in the first instance, “thereis no case or controversy as to a [Board] determinationthat was favorable to an appellant”). Although the Boarddid not specifically address the existence of competentevidence of a current disability, its ultimate conclusionthat “there is no question that the veteran currentlysuffers low back disability ...” necessarily includes thisdetermination and the first element is thus satisfied. SeeR. at 7.

2. Establishment of In–Service Event, Injury, or Disease

The second element to consider when determining theneed for a medical examination is whether the evidenceestablishes that the claimant suffered an in-service event,injury, or disease, or “has a disease or symptoms of adisease listed [in certain regulatory provisions] manifestingduring an applicable presumptive period, provided theclaimant has the required service or triggering event toqualify for that presumption.” 38 C.F.R. § 3.159(c)(4)(i)(B); see also 38 U.S.C. § 5103A(d)(2). This is a classicfactual assessment, involving the weighing of facts, andthe Board's findings are subject to the “clearly erroneous”standard of review. See Lovelace v. Derwinski, 1 Vet.App.73, 74 (1990) (stating that a factual determination involves



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the analysis and evaluation of evidence as opposed to theapplication of law and the legal conclusions flowing fromit); see also 38 U.S.C. § 7261(a)(4); Butts, 5 Vet.App. at535; Gilbert, supra. In this instance, the Board could havefound that the evidence with regard to Mr. McLendon'sreport of an in-service injury was not credible; however,it did not do so. Rather, it found that Mr. McLendonsuffered an in-service back injury (R. at 6–7 (“[E]videnceof record compels a finding that the low back injury whichthe veteran claims to have suffered *83 in late 1964 orearly 1965 was an acute injury ....”)), which satisfies thesecond element.

3. Indication that Current Disability MayBe Associated with In–Service Event

The third element to consider when assessing the needfor a medical examination is whether evidence “indicates”that a disability, or persistent or recurrent symptoms ofa disability, “may be associated with the claimant's ...service,” 38 U.S.C. § 5103A(d)(2)(B), or “with anotherservice-connected disability,” 38 C.F.R. § 3.159(c)(4)(i)(C). In contrast to the second element, which requiresevidence to establish an in-service injury, this elementrequires only that the evidence “indicates” that there“may” be a nexus between the two. This is a low threshold.See 38 U.S.C. § 5103A(d)(2)(B); see also Wells, 326 F.3d at1384 (requiring the “showing of some causal connectionbetween his disability and his military service”); Duenas v.Principi, 18 Vet.App. 512, 517–18 (2004) (stating that, inorder to trigger the Secretary's duty to provide a medicalexamination under section 5103A(d)(2)(B), the evidenceof record need only indicate that symptoms of a disability,as opposed to a disability itself, may be associated withhis active service); 146 CONG. REC. H9912, H9917(2000) (statement of Rep. Evans) (suggesting that once theVCAA is enacted, “if a veteran's military records indicatehe served as a paratrooper, making multiple jumps duringservice in Vietnam and the veteran now has evidence ofarthritis of the knees that he indicates was due to thesejumps, VA will be required to obtain a medical opinion asto whether it is as likely as not that his current arthritis isrelated to his military service”).

Although the underlying facts are found below and thosefindings of fact are subject to the “clearly erroneous”standard of review, whether those facts “indicate” thata current disability “may be associated” with military

service is a matter that is reviewed under the “arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with law” standard of review. See 38 U.S.C. §7261(a)(3)(A); Marrero, supra; see also Kent, supra; Bagbyv. Derwinski, 1 Vet.App. 225, 227 (1991) (holding that theCourt reviews “de novo” the Board's determination thatthe facts found by the Board satisfy a statutory thresholdrequirement that clear and unmistakable evidence hasbeen shown to rebut the presumption of soundness). Sucha matter involves the application of facts to the law.

The types of evidence that “indicate” that a currentdisability “may be associated” with military serviceinclude, but are not limited to, medical evidence thatsuggests a nexus but is too equivocal or lacking inspecificity to support a decision on the merits, or credibleevidence of continuity of symptomatology such as painor other symptoms capable of lay observation. As notedby Representative Evans, the development of arthritisin a person's knees and the fact that that person hadbeen a paratrooper with numerous jumps “indicates” thathis disability “may be associated” with his service. See146 CONG. REC. H9912, H9917. Similarly, exposure to“noise from a rifle range, bombing, artillery fire, trucks,and heavy equipment” with credible testimony of ringingin the ears “ever since service” indicates that a hearingdisability may be associated with service. Charles, 16Vet.App. at 372–74.

Although the Board in this case noted that Dr.Maniscalco's 2001 opinion suggested that “it is possible”that Mr. McLendon's current back condition was relatedto his injury in service, and that Dr. Bearison's 2001opinion stated that “it is within the realm of medicalpossibility” *84 that Mr. McLendon's current backcondition was related to his injury in service, the Boardnever specifically addressed the third element and neverassessed whether these medical opinions, or any otherevidence, “indicated” that Mr. McLendon's in-serviceinjury “may be associated” with his current disability.Rather, the Board proceeded to weigh the evidence anddetermine that the opinions of Drs. Maniscalco andBearison were speculative and could not establish amedical nexus. See Bloom v. West, 12 Vet.App. 185, 187(1999) (speculative medical opinion cannot establish in-service medical nexus to service).

That conclusion, however, does not mean necessarily thatthe evidence does not “indicate” that there “may be an




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association” between an in-service injury and a currentdisability. Indeed, in this instance, although the medicalevidence was deemed insufficient to establish a nexus,that evidence, together with other evidence of record,may nevertheless be sufficient for the Board to concludethat it “indicates” that Mr. McLendon's current disability“may be associated” with an in-service injury, absent afinding that the evidence itself otherwise warranted noconsideration. See, e.g., Coburn v. Nicholson, 19 Vet.App.427, 432 (2006) (“reliance on a veteran's statement rendersa medical report incredible only if the Board rejects thestatements of the veteran”); Reonal v. Brown, 5 Vet.App.458, 461 (1993) (stating that the Board is not bound toaccept a physician's opinion when it is based exclusivelyon the recitations of a claimant that have been rejectedby the Board); Swann v. Brown, 5 Vet.App. 229, 233(1993) (noting that a medical opinion premised upon anunsubstantiated account is of no probative value and doesnot serve to verify the occurrences described). Such adetermination should be made by the Board in the firstinstance.

Mr. McLendon is fully competent to testify to any painhe may have suffered, see Wells and Duenas, both supra;see also Charles, 16 Vet.App. at 374–75 (holding thatan appellant was capable of providing lay testimonysufficient to “indicate” that his disability could beassociated with service); Falzone v. Brown, 8 Vet.App. 398,405 (1995) (claimant competent to testify to visible injuriesand pain); Espiritu v. Derwinski, 2 Vet.App. 492, 494–95 (1992) (layperson may provide eye-witness account ofmedical symptoms), and his testimony can be rejected onlyif found to be mistaken or otherwise deemed not credible,a finding the Board did not make and the Court cannotmake in the first instance, in 38 U.S.C. § 7261(c); Hensleyv. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (stating that“appellate tribunals are not appropriate fora for initialfact finding”). Absent such a finding, the evidence of Mr.McLendon's in-service injury, testimony of pain since thatinjury (if ultimately deemed credible), and his currentdisability “indicate” that his current disability “may beassociated” with his in-service injury. See Charles, supra;146 CONG. REC. H9912, H9917 (2000).

4. Sufficient Competent MedicalEvidence To Decide Claim

Addressing the first three elements for when a medical

examination is required does not end the analysis. 2 Asprovided by the fourth element, if there is sufficientcompetent medical evidence on file for the Secretaryto make a decision on the claim, he may proceed todo so without providing a medical examination. 38U.S.C. § 5103A(d). The key question, however, is *85whether there is “sufficient competent medical evidence.”38 C.F.R. § 3.159(c)(4)(i); see 38 U.S.C. § 5103A(d)(2)(C). Sufficiency of the evidence generally is a question offact. See 38 U.S.C. § 7261(a)(4); Swann, 5 Vet.App. at 232(“A finding concerning service connection, or no serviceconnection ... is a finding of fact.”); Gilbert, 1 Vet.App. at52 (Board's findings of fact are reviewed under the “clearlyerroneous” standard of review and may not be reversed orrevised unless the Board's findings are not plausible and,therefore, are clearly erroneous).

In this instance, although the Board correctly determinedthat the opinions of Drs. Maniscalco and Bearison werespeculative and did not establish a medical nexus, theBoard failed to recognize that these opinions also did notestablish that there was no medical nexus. Cf. Forsheyv. Principi, 284 F.3d 1335, 1363 (Fed.Cir.2002) (en banc)(Mayer, C.J., and Newman, J., dissenting on groundsnot relevant here) (distinguishing between the existenceof negative evidence and the absence of actual evidenceand noting that “[t]he absence of actual evidence is notsubstantive ‘negative evidence’ ”). Similarly, the Board'sfindings that Mr. McLendon's service medical records didnot reflect any injuries to his lower back, that a medicalexamination conducted at the time of his discharge in 1967indicated that his spine was clinically normal, and thathis personal medical records did not reflect any report ofinjuries to his lower back at any time before 1993, did notestablish that there was no medical nexus. Indeed, whena nexus between a current disability and an in-serviceevent is “indicated,” there must be a medical opinionthat provides some nonspeculative determination as tothe degree of likelihood that a disability was caused byan in-service disease or incident to constitute sufficientmedical evidence on which the Board can render a decisionwith regard to nexus. See Bloom, 12 Vet.App. at 187(speculative medical opinion cannot establish in-servicemedical nexus to service); Goss v. Brown, 9 Vet.App. 109,114 (1996) (remanding claim for service connection forpolyneuropathy because VA examiner's statement that he“could not rule out nutrition deficiency as a prisoner ofwar” as the cause of the appellant's polyneuropathy was














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too ambiguous to support the Board's finding that thecondition was not service connected).

The Board also erred in its finding that Mr. McLendon'sin-service back injury was acute without chronic residualdisability. Having found that Mr. McLendon sufferedan in-service back injury, the degree of that injury andwhether any disabilities resulted therefrom are medicalassessments that the Board is not competent to renderin the first instance. See Colvin v. Derwinski, 1 Vet.App.at 175 (holding that the Board may only considerindependent medical evidence in support of its findingsand may not substitute its own medical opinion); see also38 U.S.C. § 5107(b); Mariano v. Principi, 17 Vet.App.305, 313–17 (2003); see also Flash v. Brown, 8 Vet.App.332, 339 (1995) (“The Board may not rely on its ownunsubstantiated medical conclusions to reject expertmedical evidence in the record; rather, the Board mayreject a claimant's medical evidence only on the basis ofother independent medical evidence.”). Because there isno competent medical evidence with regard to whetherMr. McLendon's current disability was more likely thannot caused by his in-service injury, the Board's findingthat there was sufficient competent medical evidence in therecord to make a decision on the claim is not supported bythe record and is clearly erroneous.

5. Need for a Medical Examination

Although a claimant may and should assist in processing aclaim, it is the Secretary who has the affirmative, statutoryduty to assist the veteran in making his case. See 38 U.S.C.§ 5103A. It is the *86 Secretary who is required to providethe medical examination when the first three elementsof section 5103A(d)(2) are satisfied, and the evidenceof record otherwise lacks a competent medical opinionregarding the likelihood of medical nexus between the in-service event and a current disability. The Board is notcompetent to provide that opinion. See Colvin, supra; seealso Flash, supra.

Section 5103A(d)(2) mandates that a medical examinationbe provided in disability compensation claim cases when(1) there is competent evidence of a current disabilityor persistent or recurrent symptoms of a disability(or, as in this case, a finding that Mr. McLendonhas a current disability), and (2) evidence establishingthat an event, injury, or disease occurred in service

or establishing certain diseases manifesting during anapplicable presumptive period for which the claimantqualifies, and (3) an indication that the disability orpersistent or recurrent symptoms of a disability maybe associated with the veteran's service or with anotherservice-connected disability, but (4) insufficient competentmedical evidence on file for the Secretary to make adecision on the claim. In this instance, the Board neveraddressed the third element. Because that element includesfactual determinations, it should be addressed by theBoard in the first instance. See Hensley, 212 F.3d at 1263–64 (court of appeals may remand if it determines that alower tribunal failed to make findings of fact essentialto a decision). Moreover, if the Board determines onremand that the third element has been met in this case,it must ensure that the appellant is provided a medicalexamination pursuant to section 5103A(d) because therewould be insufficient medical evidence to decide the claim.

B. Other Arguments

The Court at this time will not address the appellant'sassertion that the Secretary failed to provide adequatenotice. See Best v. Principi, 15 Vet.App. 18, 20 (2001)(“A narrow decision preserves for the appellant theopportunity to argue any claimed errors before the Boardat the readjudication.”); see also Mahl v. Principi, 15Vet.App. 37, 38 (2001) (holding that where remand isappropriate, the Court need not “analyze and discuss allthe other claimed errors that would result in a remedy nobroader than a remand”). On remand, the appellant is freeto submit additional evidence and argument, including thearguments raised in his briefs to this Court, in accordancewith Kutscherousky v. West, 12 Vet.App. 369, 372–73(1999), and the Board must consider any such evidenceor argument submitted. See Kay v. Principi, 16 Vet.App.529, 534 (2002). The Board shall proceed expeditiously,in accordance with 38 U.S.C. §§ 5109B, 7112 (requiringSecretary to provide for “expeditious treatment” of claimsremanded by Board or Court).

III. CONCLUSION

The January 15, 2004, Board decision is SET ASIDE andthe matter REMANDED for action consistent with thisopinion.



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All Citations

20 Vet.App. 79

Footnotes1 An assessment of competency can be one of legal competency, which is reviewed de novo, see Layno v. Brown, 6

Vet.App. 465, 469 (1994) (holding that “competency” “is a legal concept determining whether testimony may be heardand considered by the trier of fact, while [weight and credibility] is a factual determination going to the probative value ofthe evidence to be made after the evidence has been admitted”), or of factual competency, which is reviewed for clearerror, see Sanders v. Brown, 9 Vet.App. 525, 529 (1996) (holding that mental “competency” is a factual determinationthat the Court reviews under the “clearly erroneous” standard of review).

2 By undertaking an analysis of the first three elements, we do not imply that the Board may not conclude at the outsetthat there is sufficient medical evidence to decide a case—the fourth element—such that a medical examination is notnecessary.

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.




Stefl v. Nicholson, 21 Vet.App. 120 (2007)



Declined to Extend by Nisler v. Gibson, Vet.App., July 22, 2014


Barney J. STEFL, Appellant,v.


No. 04-2192.|

March 27, 2007.

SynopsisBackground: Veteran appealed decision of the Board ofVeterans' Appeals (BVA) that denied his claims for serviceconnection for nasal sinus disease.

[Holding:] The United States Court of Appeals forVeterans Claims, Lance, J., held that medical nexusopinion which found that veteran's nasal sinus conditionwas not related to service because the condition was notentitled to presumptive service connection, without clearlyconsidering direct service connection, was inadequate onits face.

Vacated and remanded.

Greene, Chief Judge, filed dissenting opinion.

West Headnotes (3)

[1] Armed ServicesMedical Examination or Opinion

The duty of the Secretary of VeteransAffairs (VA) to assist includes providingan examination that is adequate for ratingpurposes. 38 C.F.R. § 4.2.


[2] Armed Services

Medical Examination or Opinion

A medical opinion provided by the Secretaryof Veterans Affairs (VA) as part of the dutyto assist is adequate where it is based uponconsideration of the veteran's prior medicalhistory and examinations and also describesthe disability, if any, in sufficient detail so thatthe evaluation of the claimed disability by theBoard of Veterans Appeals (BVA) will be afully informed one. 38 C.F.R. § 4.2.



Medical nexus opinion which found thatveteran's nasal sinus condition was not relatedto service because the condition was notentitled to presumptive service connection,without clearly considering direct serviceconnection, was inadequate on its face.



*121 Mark R. Lippman, of La Jolla, California, for theappellant.

Tim S. McClain, General Counsel; R. Randall Campbell,Assistant General Counsel; and Thomas E. Sullivan, all ofWashington, D.C., for the appellee.

Before GREENE, Chief Judge, and HAGEL andLANCE, Judges.

Opinion

LANCE, Judge:

Barney J. Stefl appeals through counsel an October 8,2004, decision of the Board of Veterans' Appeals (Board)that denied his claims for service connection for atypicalsquamous metaplasia (nasal sinus disease). Record (R.) at1-15. For the reasons that follow, the Court will vacatethe October 8, 2004, decision and remand the matter forfurther proceedings consistent with this decision.

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I. FACTS

The appellant served on active duty in the U.S. Army fromSeptember 1967 to September 1969, during which timehe served in Vietnam. R. at 17. There is no record thatduring service the appellant complained of, or underwenttreatment for, nasal or sinus conditions. A November1997 pathology report diagnosed him with allergic-typerespiratory polyps. R. at 99. In November 1997 andJanuary 1998, he underwent surgery to excise intranasalpolyps and ethmoid sinus tissue. R. at 96-102. In March1998, the appellant filed a claim for service connection fornasal sinus disease based on exposure to herbicide agentsor tobacco use that began during service. R. at 104, 113.The appellant's condition is not one presumptively causedby exposure to herbicide agents under 38 C.F.R. § 3.309(3)(2006). Appellant's Brief (Br.) at 5. The New York,New York, VA regional office (RO) denied his claim inMarch 1998. The RO noted that “VA has determinedthat presumption of service connection based on exposureto herbicides used in Vietnam is not warranted for anyconditions other than those for which VA has found apositive association between *122 the condition andsuch exposure.” R. at 107-09. The RO then went onto find: “There is no basis in the available evidence ofrecord to establish service connection for nasal sinusdisease due to exposure to herbicides.” Id. In September1998, the RO denied service connection as secondary totobacco use. R. at 126-27. On January 4, 2000, Frank L.Staro, M.D., wrote a letter saying the appellant's “ethmoidpolyps ... showed atypia which we related to Agent OrangeExposure in Vietnam.” R. at 145.

In January 2001, the Board remanded the matter forfurther development finding 38 U.S.C. § 1103 did nota bar the appellant's theory of service connection basedon tobacco use because the section applied only toclaims filed after June 9, 1998, and the RO receivedthe appellant's claim in March 1998. R. at 167-74. Theappellant underwent a VA medical examination in March2003. R. at 338. The physician concluded:

Upon reviewing the veteran's [claimsfile], there is a [S]tatement of the[C]ase dated September 2, 1998[,]in which there are listed diseasesassociated with exposure to certainherbicide agents. In that disease list,

nasal sinus disease is not amongthe disorders. There [are] listedrespiratory cancers, cancers of thelung, bronchus, larynx and trachea.Nasal polyps and nasal polyps thatshow atypical squamous metaplasiacertainly do[ ] not fall into the realmof an obvious malignancy of therespiratory tract. It is therefore myopinion that the veteran's nasal andsinus polyp disease is not relatedto service or exposure to AgentOrange.

Id. Based significantly on this medical opinion, theCleveland, Ohio, RO (R. at 389-406) and the Board (R. at1-15) denied the appellant service connection for his nasalsinus condition. This appeal follows.

II. ANALYSIS

Service connection is available for disabilities caused byservice:

For disability resulting frompersonal injury suffered or diseasecontracted in line of duty, or foraggravation of a preexisting injurysuffered or disease contracted inline of duty, in the active military,naval, or air service, during a periodof war, the United States will payto any veteran thus disabled ...compensation as provided in thissubchapter....

38 U.S.C. § 1110. Service connection can be establisheddirectly with medical evidence of a nexus between acondition and an injury or disease in service or, insome instances, can be established by a presumption thatcertain conditions are related to certain types of service.Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994).For veterans who served in Vietnam, Congress directedthe Secretary of Veterans Affairs (Secretary) to considerreports from the National Academy of Sciences and“all other sound medical and scientific informationand analyses available to the Secretary” (38 U.S.C.§ 1116(b)(2)) and prescribe regulations providing forpresumptive service connection for conditions where a

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positive association exists between exposure to herbicideagents and the occurrence of the disease in humans (38U.S.C. § 1116(b)(1)). Service connection is available forthese conditions without a claimant's showing a nexusbetween service and the condition.

Whenever the Secretary determines,on the basis of sound medical andscientific evidence, that a positiveassociation exists between (A) theexposure of humans to an herbicideagent, and (B) the occurrence ofa disease in humans, the Secretaryshall prescribe regulations providingthat a presumption of service *123connection is warranted for thatdisease for the purposes of thissection.

38 U.S.C. § 1116(b)(1). The list of conditions is found at38 C.F.R. § 3.309(e). The Secretary has also establishedthat “any other condition for which the Secretary hasnot specifically determined a presumption of serviceconnection is warranted” is not entitled to a presumptionof service connection for exposure to herbicides. 68Fed.Reg. 27,630 (May 20, 2003).

[1] Pursuant to 38 U.S.C. § 5103A, the Secretary's dutyto assist includes “providing a medical examination orobtaining a medical opinion when such an examinationor opinion is necessary to make a decision on theclaim.” This duty includes providing an examinationthat is adequate for rating purposes. See 38 C.F.R.§ 4.2 (2006); see also Stegall v. West, 11 Vet.App.268, 270-71 (1998) (remanding where a VA examinationwas “inadequate for evaluation purposes”). In January2001, the Board remanded the appellant's claim fora medical opinion “whether it is at least as likely asnot that any nasal disability found to be present isetiologically related to the veteran's period of militaryservice.” R. at 172. VA provided the appellant a medicalexamination. R. at 385-87. The appellant asserts theexamination is inadequate because it is based on amisunderstanding of the applicable law. Appellant's Br.at 4. “[T]he physician mistakenly assumed that, sincethe appellant's nasal sinus disease was not included inthe list of presumptive service connected diseases, itcould not be related to service.” Appellant's Br. at 5.The Secretary contends the examination is adequate,asserting reading the examination as a whole shows the

physician considered the usual causes of the condition,the conditions normally caused by herbicide exposure,and opined the veteran's condition was not related toherbicide exposure during service. Br. at 9. The Secretaryconcedes in his supplemental brief that the existence ofpresumptive service connection does not preclude directservice connection. Supplemental Br. at 3.

[2] The Court agrees with the appellant that theexamination report is inadequate. An opinion is adequatewhere it is based upon consideration of the veteran'sprior medical history and examinations and also describesthe disability, if any, in sufficient detail so that theBoard's “ ‘evaluation of the claimed disability will bea fully informed one.’ ” Ardison v. Brown, 6 Vet.App.405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App.121, 124 (1991)). The Secretary acknowledges that directservice connection may be available. Supplemental Br.at 3. The existence of presumptive service connectionfor a condition based on exposure to Agent Orangepresupposes that it is possible for medical evidence toprove such a link before the National Academy of Sciencesrecognizes a positive association. Indeed, section 1116(b)(1) requires a “positive association” for presumptiveservice connection to attach. 38 U.S.C. § 1116(b)(3)(defining “positive association”). The availability ofpresumptive service connection for some conditions basedon exposure to Agent Orange does not preclude directservice connection for other conditions based on exposureto Agent Orange. This is particularly important whenthere is an approximate balance of positive and negativeevidence in an appellant's particular case because aclaimant is entitled to the benefit of the doubt. 38 U.S.C.§ 5107(b).

[3] In this case, the medical examiner discussedpresumptive service connection but did not, as directedby the January 2001 Board remand order (R. at 172),discuss whether it is as likely as not that exposureto herbicide agents, or smoking, directly caused theappellant's condition. *124 R. at 337-39. The Secretaryconcedes the opinion is less than clear: “The latterstatement does not necessarily presuppose that becausethe disease is not in the list, ergo the veteran's illness cannotbe related to service, as [the a]ppellant would have this[C]ourt think.” Br. at 9 (italicized emphasis in original,bold emphasis added). Whether the examiner failed toconsider direct service connection, or reported in a mannerthat was not clear enough to be understood, the report

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failed in its purpose. A medical nexus opinion finding acondition is not related to service because the conditionis not entitled to presumptive service connection, withoutclearly considering direct service connection, is inadequateon its face. Without a medical opinion that clearlyaddresses the relevant facts and medical science, the Boardis left to rely on its own lay opinion, which it is forbiddenfrom doing. See Colvin v. Derwinski, 1 Vet.App. 171,175 (1991) (holding that the Board may only considerindependent medical evidence and may not substitute itsown medical opinion.).

Not only must the medical opinion clearly consider directservice connection, it must support its conclusion with ananalysis that the Board can consider and weigh againstcontrary opinions. See Tucker v. West, 11 Vet.App. 369,374 (1998) (vacatur and remand may be warranted wherethe Board has failed to provide an adequate statement ofreasons or bases for its determinations). Relevant pointsthat can be discussed in an examination report include,but are not limited to, why the examiner finds cited studiespersuasive or unpersuasive, whether the veteran has otherrisk factors for developing the claimed condition, andwhether the claimed condition has manifested itself in anunusual manner. See Claiborne v. Nicholson, 19 Vet.App.181, 186 (2005) (rejecting medical opinions that did notindicate whether the physicians actually examined theveteran, did not provide the extent of any examination,and did not provide any supporting clinical data);Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) (statingthat “probative value of medical[-]opinion evidence isbased on the medical expert's personal examinationof the patient, the physician's knowledge and skill inanalyzing the data, and the medical conclusion that thephysician reaches”). The disputed medical opinion hasno such analysis even if it was an opinion on directservice connection. Therefore, the Court finds the medicalopinion inadequate. Because the Board relied on aninadequate medical examination in support of its decision,the Court will vacate and remand the decision. SeeStegall, 11 Vet.App. at 270-71; Hicks v. Brown, 8 Vet.App.417, 422 (1995) (concluding that an inadequate medicalevaluation frustrates judicial review).

Although our dissenting colleague would hold thatthe medical examiner adequately expressed an opinionon direct service connection through the statement“nasal and sinus polyp disease is not related to serviceor exposure to Agent Orange” (R. at 337-38), the

medical opinion is at best a conclusion that fails toprovide sufficient detail for the Board to make a fullyinformed evaluation of whether direct service connectionis warranted. See Ardison, supra. The Board's relianceon an unsupported conclusion also hampers meaningfulreview by the Court. See Gilbert v. Derwinski, 1 Vet.App.49, 56-57 (1990). Furthermore, the majority's opinion doesnot dictate how a medical opinion should be formulated.We merely provide an illustrative list of items thatmay be helpful for the Board to consider in makinga fully informed determination of whether a medicalopinion contains such sufficient information that it doesnot require the Board to exercise independent medicaljudgment. See *125 Colvin, supra. We do not hold thatthis list is exclusive or that any of these items would benecessary to render a valid opinion. We hold only thata mere conclusion by a medical doctor is insufficient toallow the Board to make an informed decision as to whatweight to assign to the doctor's opinion.

Given that this matter is being remanded for furtheradjudication, and finding none of the other allegationsof error could result in greater relief, the Court will notaddress the appellant's assertion that he was providedinadequate notice (Br. at 5-9). See Best v. Principi, 15Vet.App. 18, 20 (2001) (“A narrow decision preservesfor the appellant an opportunity to argue those claimederrors before the Board at the readjudication, and, ofcourse, before this Court in an appeal, should the Boardrule against him.”). On remand, the appellant is free tosubmit additional evidence and argument and the Boardmust consider any such evidence or argument submitted.See Kay v. Principi, 16 Vet.App. 529, 534 (2002);Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)(per curiam order). The Board shall proceed expeditiously,in accordance with 38 U.S.C. § 7112 (requiring theSecretary to provide for “expeditious treatment” of claimsremanded by the Court). Should the Board rule againstthe appellant, he may present any allegations of error tothis Court in a future appeal. See Best, supra.

III. CONCLUSION

Accordingly, the Board's October 8, 2004, decision isVACATED and the matter is REMANDED to the Boardfor further proceedings consistent with this decision.












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GREENE, Chief Judge, dissenting:I respectfully dissent from the majority's view that theBoard's reliance on the examiner's statement to deny directservice connection was clearly erroneous. See 38 U.S.C.§ 7261(a)(4); Forcier v. Nicholson, 19 Vet.App. 414, 421(2006) (Board's assessment of credibility and weight tobe given to medical evidence is finding of fact reviewedunder “clearly erroneous” standard); Wood v. Derwinski,1 Vet.App. 190, 193 (1991). The March 2003 VA examinerstated that he had reviewed the claims file, examinedMr. Stefl, performed a fiberoptic endoscopic examination,and concluded that Mr. Stefl's “nasal and sinus polypdisease is not related to service or exposure to AgentOrange.” R. at 337-38 (emphasis added). I believe thefirst part of this statement reflects the examiner's opinionregarding direct service connection, while the second partrelates to presumptive service connection. The examinerfurther noted that Mr. Stefl's condition is not similar torespiratory cancers, which are presumed to be caused byherbicide agents and that his condition is usually causedby “recurring sinus infections and/or respiratory tractallergies.” R. at 338. These medical findings providedthe Board with a plausible basis for relying on the May2003 VA medical examination to determine whether there

was direct service connection. See Gilbert v. Derwinski, 1Vet.App. 49, 52-53 (1990) (holding that when applying“clearly erroneous” standard, Board's finding supportedby plausible basis may not be reversed even if Court wouldhave weighed evidence differently). Further, the majority'sattempt to dictate to the medical examiner how a medicalopinion should be formulated stretches the boundariesof our review. The Court has jurisdiction to review thereasons or bases contained in decisions of the Board, notthe medical analysis proffered in VA medical opinions.

The Board denied direct service connection after findingthat Mr. Stefl had no *126 complaints or diagnosisof nasal problems during service and because there isno medical evidence of record of a nexus between hisin-service exposure to Agent Orange and his currentnasal disease. R. at 10-11. Based on the Board's factualfindings and the medical conclusions of the May 2003 VAexamination, I would affirm the Board's decision to denyMr. Stefl service connection for a nasal sinus disease on adirect basis.

All Citations

21 Vet.App. 120



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Stegall v. West, 11 Vet.App. 268 (1998)



Declined to Extend by Savoy v. Massanari, D.Me., November 26, 2001

11 Vet.App. 268United States Court of Veterans Appeals.

Ralph L. STEGALL, Appellant,v.

Togo D. WEST, Jr., Secretaryof Veterans Affairs, Appellee.

No. 97–78.|

June 26, 1998.

SynopsisVeteran appealed a decision of the Board of Veterans'Appeals (BVA) which denied entitlement to an increasedevaluation for headaches, currently evaluated as 10%disabling. The Court of Veterans Appeals, Nebeker, ChiefJudge, held that remand was required where veteran'smedical examination was inadequate because regionaloffice (RO) failed to comply with directions in prior BVAremand order.


West Headnotes (4)

[1] Armed ServicesRemand

Remand was required with respect to decisionof the Board of Veterans' Appeals (BVA)which denied entitlement to an increasedevaluation for headaches, where veteran'smedical examination was inadequate becauseregional office (RO) failed to comply withdirections in prior BVA remand order.



Remand by the Court of Veterans Appealsor the Board of Veterans Appeals (BVA)confers on the veteran or other claimant, as a

matter of law, the right to compliance with theremand order.



A remand by the Court of Veterans Appealsor the Board of Veterans Appeals (BVA)imposes upon the Secretary of VeteransAffairs a concomitant duty to ensurecompliance with the terms of the remand,either personally or as the “the head of theDepartment.” 38 U.S.C.A. § 303.



Where the remand orders of the Board ofVeterans Appeals (BVA) or the Court ofVeterans Appeals are not complied with,the Board itself errs in failing to insurecompliance.



*269 Theodore D. Peyser, New York City and Steven W.Myhre, on briefs for appellant.

John H. Thompson, Acting General Counsel; RonGarvin, Assistant General Counsel; Joan E. Moriarty,Deputy Assistant General Counsel; and Daniel G.Krasnegor, Washington, DC, on brief for appellee.

Before NEBEKER, Chief Judge, and FARLEY andGREENE, Judges.

UNITED STATES COURTOF VETERANS APPEALS

NEBEKER, Chief Judge:

The appellant, Ralph Stegall, appeals a January 8,1997, decision of the Board of Veterans' Appeals (BVA

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or Board) which denied entitlement to an increasedevaluation for headaches, currently evaluated as 10%disabling. Upon consideration of the briefs of the partiesand the record on appeal, the Court will vacate theBVA decision and remand the veteran's claim seeking anincreased evaluation for his headaches for the followingreasons.

I. FACTS

Mr. Stegall served on active duty in the U.S. Marine Corpsfrom June 1968 to February 1971, including a tour ofduty in Vietnam. Record (R.) at 342. In July 1972, he wasgranted service connection for “headaches due to tensionwith paroxysmal electroencephalographic dysrhythmia,”and rated at 10% disabling. R. at 70. In November 1993,the Board denied entitlement to an increased evaluationfor headaches, and Mr. Stegall appealed to this Court.R. at 432–39. Pursuant to a joint motion for remand,the Court vacated the November 1993 BVA decision andremanded the matter to the BVA. R. at 447. Followingthe Court's remand, the Board, in August 1995, furtherremanded the claim, and included, inter alia, the followinginstruction in the remand order:

3. The veteran then should be afforded a specialneurology examination to determine the nature andseverity of any current neurological disorder withassociated headaches. Any indicated evaluations,studies, and tests deemed necessary by the examinershould be accomplished. The examination reportshould include a detailed industrial history, and thefrequency and extent of headaches should be reportedas accurately as possible to include time lost from work.The examiner should also be requested to reconcile anydiagnosis with those given the veteran over the yearsand *270 to provide opinions as to (1) the most likelyetiology of the veteran's headaches and (2) the degreeof probability, if any, that his current headaches areassociated with the headaches he reported in service.The rationale for any conclusions should be reported.It is essential that the veteran's claims file be madeavailable to the examiner for review in connection withthe evaluation. The examination should be conductedregardless of whether additional treatment records areobtained.

4. The veteran should also be afforded a VApsychiatric examination to assist in determining the

etiology of the veteran's headaches. Any necessarytests should be conducted. Specifically, the examinershould be requested to provide an opinion, withsupporting rationale, as to whether there is a psychiatriccomponent to the veteran's complaints of headachesand the extent to which a psychiatric pathology,including a personality disorder, might account for theveteran's complaints. The veteran's claims file must bemade available to the examiner for a complete study ofthe case in connection with the evaluation.

R. at 481–82.

Following the Board remand, VA neurology andpsychiatric examinations were scheduled at the DallasVA medical center (VAMC). However, the veteran wasadmitted to the Waco VAMC before he was able toundergo the examinations. See R. at 507, 526. Mr.Stegall was hospitalized from March to June 1996for “evaluation of his mental status.” R. at 526. Hisdischarge notes from the Waco VAMC, stated that “[a]tthe present time the patient is feeling better with hiscurrent medication, support from staff, and structure ofthe hospital,” however, “recurrent headaches probablyrelated to anxiety or stress” were diagnosed. Supplemental(Suppl.) R. at 9. In June 1996, the veteran receiveda neurological evaluation. Suppl. R. at 3–9. He wasdiagnosed with headache and neckache, and the examineropined that the etiology of his headaches was difficult toascertain. Id.

In August 1996, the RO confirmed and continued the10% rating, but found that the veteran was entitledto a 100% schedular rating for post-traumatic stressdisorder (PTSD). R. at 640–44. The Board's January 1997decision noted that the veteran complained of debilitatingheadaches 4–5 times per week, but noted that duringhis period of hospitalization, only one headache requiredbed rest. R. at 1–8. In denying the increased rating theBoard found that “the headaches as described in themedical records, which the Board finds to be the mostreliable evidence, are not of the severity and frequencycontemplated” by a higher rating. R. at 8.

II. ANALYSIS

[1] Before this Court, Mr. Stegall argues that theSecretary failed to follow the earlier remand instructions,

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and further that the Secretary erred in failing to considerwhether the veteran was entitled to an extraschedularrating under 38 C.F.R. § 3.321(b). While the Secretaryhas argued for affirmance as to the veteran's increasedrating claim, the Court holds that a remand is necessarybecause the veteran's medical examination in this case wasinadequate, and because of the RO's failure to follow the1995 BVA remand. In its decision, the Board relied heavilyon the report of Mr. Stegall's three-month hospitalization,during which the veteran was receiving medication andtreatment for PTSD. R. at 7–8. The Board found that thelack of evidence of headaches during that hospitalizationwas sufficient to warrant denial of an increased rating. Id.This finding, however, ignores the Board's 1995 remandorder, and fails to address whether there was a psychiatriccomponent to his complaints of headache. Both theBoard and the Secretary before this Court ignore the factthat no psychiatric evaluation independent of the PTSDhospitalization was conducted despite the earlier remandorder. Cf. Hicks v. Brown, 8 Vet.App. 417, 421 (1995)(Board reliance on inadequate medical examination causefor remand).

Without regard to the remand instructions, the Boardevaluated Mr. Stegall based on the PTSD evaluation andhospitalization from early 1996. See 38 C.F.R. § 4.2 (1994)(if report does not contain sufficient detail, rating *271board must return report as inadequate for evaluationpurposes); see also Ardison v. Brown, 6 Vet.App. 405,407 (1994) (inadequate examination frustrated judicialreview). The Court holds that the VA examinationprovided to Mr. Stegall was inadequate for evaluationpurposes, and therefore, the Court will remand the claimwith directions that the Secretary order an additionalmedical examination that complies with all pertinentstatutory and regulatory requirements. Additionally, theearlier BVA remand required that the claims file be madeavailable for both examinations, but there is no evidencein the medical reports that Mr. Stegall's file was availableduring the PTSD hospitalization, which the Board reliedon, or during the neurology examination. As the recordreveals that the VA medical examination did not complywith the directions found in the 1995 BVA remand order,the Court's review is frustrated, and the matter will beremanded for additional development. Cf. Booth v. Brown,8 Vet.App. 109, 111 (1995).

[2] [3] [4] The protracted circumstances of this caseand others which have come all too frequently before

this Court demonstrate the compelling need to hold,as we do, that a remand by this Court or the Boardconfers on the veteran or other claimant, as a matterof law, the right to compliance with the remand orders.We hold further that a remand by this Court or theBoard imposes upon the Secretary of Veterans Affairs aconcomitant duty to ensure compliance with the termsof the remand, either personally or as the “the head ofthe Department.” 38 U.S.C. § 303. It matters not that theagencies of original jurisdiction as well as those agenciesof the VA responsible for evaluations, examinations, andmedical opinions are not under the Board as part of avertical chain of command which would subject them tothe direct mandates of the Board. It is the Secretary who isresponsible for the “proper execution and administrationof all laws administered by the Department and for thecontrol, direction, and management of the Department.”38 U.S.C. § 303. Moreover, the Secretary is by statuteboth the one to whom a veteran may appeal an initialdenial as a matter of right (38 U.S.C. § 7104(a)), and aparty, represented by the General Counsel, to every appealbefore this Court (38 U.S.C. § 7263(a)). Finally, we holdalso that where, as here, the remand orders of the Boardor this Court are not complied with, the Board itself errsin failing to insure compliance. While it is true that wherean appellant has not been harmed by an error in a Boarddetermination, the error is not prejudicial (see 38 U.S.C.§ 7261(b)) (“Court shall take due account of the rule ofprejudicial error”), the Court cannot say, based on therecord before it, that the appellant here has not beenharmed. The Court takes this opportunity to remind theSecretary that the holdings of this decision are precedentto be followed in all cases presently in remand status. SeeTobler v. Derwinski, 2 Vet.App. 8 (1991).

III. CONCLUSION

Under the authority and the obligation (“shall”) of theCourt to “compel action of the Secretary unlawfullywithheld or unreasonable delayed” (38 U.S.C. § 7261(a)(2)), the Board's January 8, 1997, decision is VACATEDand the matter REMANDED with a direction that theSecretary promptly comply with the previous and presentremands of this Court and the Board consistent with therequirement for expedited proceedings. See § 302 of theVeterans Benefits Improvement Act of 1994, Pub.L. No.103–446, 108 Stat. 4645, 4648 (1994) (found at 38 U.S.C.§ 5101 note). On remand, the appellant will be free to

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submit additional evidence and argument, and the Boardmust seek any other evidence it thinks is necessary to theresolution of the appellant's claim. Quarles v. Derwinski,3 Vet.App. 129, 141 (1992). Finally, the Court truststhat the appellant's argument regarding entitlement to an

extraschedular rating under 38 C.F.R. § 3.321(b) will beaddressed by the Board on remand.

All Citations

11 Vet.App. 268




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UNITED STATES

COURT OF APPEALS

FOR VETERANS CLAIMS

RULES OF PRACTICE AND PROCEDURE

Effective September 15, 2011, for all business before the Court

(Includes adopted revisions as of December 26, 2017)

and

Case Management/Electronic Case Filing System

(CM/ECF) E-Rules

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

RULES OF PRACTICE AND PROCEDURE

Effective September 15, 2011, for all business before the Court (Includes adopted revisions as of December 26, 2017)

Table of Contents

Rule 1. Scope of Rules

Rule 2. Suspension of Rules

Rule 3. Appellate Procedure

Rule 4. Filing Appeal; Docketing; Copy of Board

Decision

Rule 5. Stay of Appellate Proceedings

Rule 6. Protection of Privacy

Rule 7. (Reserved)

Rule 8. Suspension of Secretarial Action or Suspension

of Precedential Effect of Decision of this Court

Rule 9. (Reserved)

Rule 10. Record Before the Agency

Rules 11-14. (Reserved)

Rule 15. Intervention


Rule 21. Extraordinary Relief


Rule 24. Waiver of Filing Fee

Rule 25. Filing and Service

Rule 26. Computation and Extension of Time

Rule 27. Motions

Rule 28. Briefs

Rule 28.1. Record of Proceedings Rule

29. Brief of an Amicus Curiae

Rule 30. Citation of Certain Authority

Rule 31. Filing and Service of Briefs

Rule 32. Form of Briefs, Appendices, and Other

Documents

Rule 33. Staff Conference

Rule 34. Oral Argument

Rule 35. Motions for Reconsideration, Panel Decision, or

Full Court Review

Rule 36. Entry of Judgment

Rule 37. Retention Requirements for Documents

Rule 38. Frivolous Filings; Failure To Act

Rule 39. Attorney Fees and Expenses

Rule 40. Rules Advisory Committee

Rule 41. Mandate

Rule 42. Voluntary Termination or Dismissal

Rule 43. Substitution of Parties

Rule 44. Judicial Conference

Rule 45. Duties of Clerk

Rule 46. Practice Before the Court and Representation

Rule 46.1. Self-Representation

Rule 47. Expedited Proceedings

Rule 48. Sealing of Cases

Rule 49. Complaints Against Judges

Appendix of Forms

1

RULE 1. SCOPE OF RULES

(a) Scope. These Rules, as supplemented by the E-

Rules specifically applicable to submissions for the Case

Management/Electronic Case Filing (CM/ECF) system, govern

practice and procedure in the U.S. Court of Appeals for

Veterans Claims (the Court), a court of national jurisdiction.

The E-Rules are also on our website at

www.uscourts.cavc.gov.

(b) Effect on Court's Jurisdiction. Neither these

Rules nor the E-Rules extend or limit the jurisdiction of the

Court.

(c) CM/ECF/Non-CM/ECF Electronic Filing. Absent a waiver from the Clerk of the Court (Clerk),

filing through the CM/ECF system is mandatory for all

representatives (as defined by Rule 46). See E-Rules 2 and 3.

Represented parties who have registered to participate in filing

through CM/ECF are called CM/ECF Users. For CM/ECF

Users, if there is any conflict between these Rules and the E-

Rules, the E-Rules apply.

Self-represented parties and others exempted by the

Court from filing through CM/ECF are called Non-CM/ECF

Users. Non-CM/ECF Users may submit documents

electronically by email or facsimile, if properly formatted. See

Rule 25(b) (Method and Timeliness). Where applicable in

these Rules, the corresponding E-Rule has been cited.

RULE 2. SUSPENSION OF RULES

On its own initiative or on a party's motion, the Court

may suspend any provision of these Rules and otherwise order

proceedings as it sees fit.

http://www.uscourts.cavc.gov/


2

RULE 3. APPELLATE PROCEDURE

(a) Filing. To appeal a Board of Veterans' Appeals

(Board) decision, a person adversely affected by the decision

must file a Notice of Appeal with the Clerk, within the time

allowed by law. See Rule 4(a) (Time for Appeal). Because the

Notice of Appeal will likely contain personal identifiers, that

electronic record will be locked and accessible through

CM/ECF only to CM/ECF Users in that case. See E-Rule 4(b).

Failure to timely file a Notice of Appeal in accordance with

law will result in dismissal of the appeal. See also Rule 38(b)

(Failure to Act).

(b) Service. The appellant shall serve a copy of the

Notice of Appeal on any party to the proceedings before the

Board other than the Secretary of Veterans Affairs (Secretary),

as well as any person whose absence from the appeal may as a

practical matter impair or impede that person's ability to protect

his or her interest. See Rule 25 (Filing and Service).

(c) Content. The Notice of Appeal–

(1) should show the name, address, and telephone

number of the person or persons making the appeal, and the

appropriate Department of Veterans Affairs (VA) claims file

number;

(2) shall reasonably identify the Board decision

appealed from and be capable of being reasonably construed,

on its face or from the surrounding circumstances, as

expressing an intent to seek Court review of that decision; and,

(3) if filed by a representative, must be accompanied

by the documents specified in Rule 46(b)(1)(A)(Appellant’s

Representative). FORM 1 in the Appendix of Forms is the

recommended form for a Notice of Appeal.

(d) Joint Appeals. If more than one person is entitled

to appeal from a decision of the Board and their interests make

3

joinder practicable, they may file a joint Notice of Appeal and

the case shall proceed as a single appeal or, if separate Notices

of Appeal have been filed timely, the parties may jointly move

to join appeals and, if the motion is granted, the case shall

thereafter proceed as a single appeal. See also Rule 15

(Intervention).

(e) Consolidated Appeals. Appeals may be

consolidated by order of the Court on its own initiative or on a

party's motion. Any motion to consolidate must assert why

consolidation is appropriate, be served on all involved parties,

and comply with the requirements of Rule 27 (Motions).

(f) Payment of Fees. A $50 nonrefundable filing fee,

payable to "U.S. Court of Appeals for Veterans Claims," shall

be submitted with the filing of the Notice of Appeal or received

by the Court not later than 14 days after the filing of the Notice

of Appeal. But see Rule 24 (Waiver of Filing Fee).

(g) Addresses and Fax Number. The Court's mailing

address is: Clerk of the Court, U.S. Court of Appeals for

Veterans Claims, 625 Indiana Avenue, NW, Suite 900,

Washington, DC 20004-2950. The Court's fax number is:

(202) 501-5848. The Court's website is located at


(h) Translations. The Court conducts its reviews and

deliberations in English. Any document transmitted to the

Court in a language other than English shall be accompanied

by an English translation that is certified as true and correct by

the translator, pursuant to 28 U.S.C. § 1746.

RULE 4. FILING APPEAL; DOCKETING; COPY OF

BOARD DECISION

(a) Time for Appeal. A Notice of Appeal must be

received by the Clerk not later than 120 days after the date on

which the Board mailed notice of the decision to the last



4

known address of the appellant and the appellant's authorized

representative, if any. See also Rule 25 (Filing and Service). A

Notice of Appeal is deemed received:

(1) on the date of its legible postmark, affixed by the

U.S. Postal Service (not including a postage-metered date

imprint other than one affixed by the U.S. Postal Service) on

the cover in which the Notice of Appeal is posted, if the

mailing is properly addressed to the Court and is mailed; or

(2) on the date of its receipt by the Clerk, if it does not

bear a legible postmark affixed by the U.S. Postal Service, or if

it is delivered or sent by means other than U.S. mail. But see

Rule 25(b)(1)(B) (filing and service for appellant confined in

an institution).

(b) Docketing.

(1) Docketing the appeal. Upon receipt of the Notice

of Appeal, the Clerk will docket the appeal, identifying the

appellant by name, unless otherwise ordered by the Court.

(2) Designation of public official. The Secretary shall

be described as the "appellee" by name and official title.

(3) Notice of docketing. The Clerk shall send a notice

of docketing to all parties advising them of the date the Clerk

received the Notice of Appeal.

(c) Copy of Board Decision. Not later than 30 days

after the date the Clerk issues the notice of docketing (see

subsection (b)(3)), the Secretary shall file with the Clerk under

separate docket entries and serve on the appellant a copy of the

Board's decision, showing:

(1) the date on which notice of the decision was

mailed, with any personal identifiers redacted except the name

of the appellant (see E-Rule1(a)(10) (definition of "personal

identifier"));

5

(2) a reference transmittal identifying the Board

decision with any necessary personal identifiers, which when

electronically filed will be locked (see E-Rule 4(d)(Locked

Documents); and

(3) if applicable, the filing date of any motion for

reconsideration or vacatur of the Board decision, and the date

and nature of any action on such a motion.

RULE 5. STAY OF APPELLATE PROCEEDINGS

(a) Grounds. On its own initiative or on a motion by a

party or an organization operating under the provisions of

Public Law No. 102-229, the Court may stay its proceedings

when–

(1) a motion has been filed for the Board to reconsider

or vacate its decision, or

(2) an organization operating under the provisions of

Public Law No. 102-229 is conducting case evaluation, or

(3) it is otherwise in the interest of judicial efficiency.

See also Rule 45(g)(5)(Duties of the Clerk).

(b) Effect of Stay. Unless and until the Court grants a

motion under this Rule, such a motion does not suspend

proceedings or interrupt preexisting filing schedules. Unless

otherwise ordered, when a stay expires or is lifted, the

preexisting filing schedule resumes at the point at which it was

stayed.

(c) Continuation of Stay. Prior to the expiration of a

stay, a party or an organization operating under the provisions

of Public Law No. 102-229 may move for continuation of the

stay. Such motion shall satisfy the requirements of Rule 27(a)

6

(Content of Motions), but is not governed by Rule 26(b)

(Extension of Time).

(d) Combined Motions Prohibited. A motion to stay

the Court's proceedings may not be combined with any other

motion. The Clerk will return any motion that violates this

subsection.

Practitioner's Note: At the time these Rules

were promulgated, the organization

operating under the provisions of Public Law

No. 102-229 was The Veterans Consortium

Pro Bono Program.

RULE 6. PROTECTION OF PRIVACY

See also Rule 48 (Sealing of Cases) and

E-Rule 4 (Locked Documents, Redaction)

(a) Public Records. Court records are public records

and once filed are not protected by Federal privacy statutes or

regulations. Pursuant to the Court's E-Rules, certain

documents are locked; parties may seek to have additional

documents locked (see E-Rules 4 and 1(a)(4)) or sealed

pursuant to Rule 48 (Sealing of Cases). Therefore, parties shall

refrain from putting a VA claims file number or other personal

identifier (e.g., Social Security number, date of birth, financial

account number, name of minor child) on any filings not

locked or sealed; use of the Court's docket number is sufficient

identification. In addition, parties shall redact any VA claims

file number or other personal identifier from other documents

submitted to the Court that are not locked or sealed.

(b) Uniformity. For purposes of uniformity redactions

should be made as follows:

digits,

(1) for Social Security numbers, use only the last four

7

(2) for date of birth, use only the year,

(3) for financial account numbers, use only the last

four digits or a lesser number if needed to preserve privacy,

(4) for the name of a minor child, use only the initials.

(c) Challenges. Parties who wish to challenge a

redaction may do so by filing a motion with the Court within

15 days of the redacted document's filing.

RULE 7. (RESERVED)

RULE 8. SUSPENSION OF SECRETARIAL ACTION

OR SUSPENSION OF PRECIDENTIAL EFFECT OF

DECISION OF THIS COURT

(a) Filing of Motion. After an appeal or petition has

been filed, a party seeking a Court order to suspend action by

the Secretary or the Board or the precedential effect of a

decision issued by this Court pending its appeal shall submit

for filing with the Clerk a motion and serve a copy on all other

parties by an expedited method (including express mail,

overnight delivery, fax or other electronic transmission, or

hand delivery).

(b) Content. The motion shall–

(1) state the reason for the relief requested and the facts

relied on; and

(2) be supported by affidavits or other sworn

statements addressing any facts in dispute.

RULE 9. (RESERVED)

8

RULE 10. RECORD BEFORE THE AGENCY

(a) Record Before the Agency. Not later than 60 days

following the notice of docketing, the Secretary shall:

(1) copy all materials that were contained in the claims

file on the date the Board issued the decision from which the

appeal was taken;

(2) copy any other material from the record before the

Secretary and the Board relevant to the Board decision on

appeal (Note: material postdating the Board decision on appeal

generally will not be included in the record before the agency);

(3) assemble and paginate all documents, keeping

attachments with their respective document. The decision of

the Board from which the appeal was taken shall be the first

document, followed by a list of any record matter that cannot

be duplicated. The assembled document is the record before

the agency;

(4) serve a copy of the record before the agency on the

appellant; and

(5) submit under a separate docket entry a notice with

the Clerk certifying that the record before the agency has been

served.

(b) Disputes. If any dispute arises as to the

preparation or content of the record before the agency, the

Court, on motion of any party, will resolve the matter. Any

motion shall describe the good faith efforts that the parties have

made to resolve the dispute and shall be submitted to the Clerk

to be filed within 14 days after the record before the agency has

been served. An opposing party may submit to the Clerk for

filing a response to such a motion within 7 days after the

motion is served.

9

(c) Filing the Record Before the Agency. The record

before the agency may include many documents not relevant to

the issues on appeal. It will not be filed with the Court unless

the Court so orders.

(d) Access of Parties or Representatives to Original

Record. After a Notice of Appeal has been filed, the Secretary

shall permit a party or a representative of a party to inspect and

to copy, subject to reasonable regulation by the Secretary, any

original material in the record before the agency that is not

subject to a protective order.

(e) Retention Requirements for Documents. See

Rule 37 (Retention Requirements for Documents).

RULES 11 THROUGH 14. (RESERVED)

RULE 15. INTERVENTION

(a) By Right. A person who participated in the

proceedings before the Board may intervene in an appeal

before the Court by filing with the Clerk a notice of

intervention and serving a copy on all parties not later than 60

days after the date of the Clerk's notice of docketing (see Rule

4(b)(3) (Notice of Docketing)). See also Rule 28(d)

(Intervenor's Brief).

(b) With Permission. Any person who did not

participate in the proceedings before the Board and who seeks

to intervene in an appeal before the Court shall submit for

filing with the Clerk a motion for permission to intervene and

serve a copy on all parties not later than 60 days after the date

of the Clerk's notice of docketing (see Rule 4(b)(3) (Notice of

Docketing)). The motion shall contain a concise statement of

the interest of the moving person or party and the grounds upon

which he or she seeks intervention. See also Rule 28(d)

10

(Intervenor's Brief); Rule 27(b) (Motions–Response or

Opposition).

(c) In Extraordinary Circumstances. After the

expiration of the time limit set in subsection (a) or (b),

intervention will be permitted only on a finding of

extraordinary circumstances.

(d) In Petitions for Writ of Mandamus. A person

who seeks to intervene in a petition for writ of mandamus shall

submit for filing with the Clerk a motion for permission to

intervene and serve a copy on all parties within a reasonable

time after the date of the Clerk's notice of docketing (see Rule

4(b)(3) (Notice of docketing)). The motion shall contain a

concise statement of the interest of the moving person or party

and the grounds upon which he or she seeks intervention. See

also Rule 28(d) (Intervenor's Brief); Rule 27(b) (Motions–

Response or Opposition).

RULES 16 THROUGH 20. (RESERVED)

RULE 21. EXTRAORDINARY RELIEF

(a) Petition: Service, Content, and Filing.

Extraordinary relief from the Court may only be sought by

filing a petition with the Clerk with proof of service on the

respondent(s), the Secretary (if not a respondent), and any

other party in interest. The petition shall –

(1) state the precise relief sought;

(2) state the facts necessary to understand the issues

presented by the petition;

(3) state the reasons why the Court should grant the

petition, including why the petitioner has a clear and

11

indisputable right to the writ and why there are inadequate

alternative means to obtain the relief sought;

(4) include an appendix containing copies of any order

or decision or any other documents necessary to understand

and support the petition; and

(5) describe any public officer who is a respondent by

name and official title.

The requirements of Rules 3(f) (Payment of Fees) and

24 (Waiver of Filing Fee) apply to petitions. Upon receipt of

the filing fee (unless waived pursuant to Rule 24 (Waiver of

Filing Fee)), the Clerk will submit the petition to the Court.

(b) Form and Length of Documents; Translations.

(1) The requirements in Rule 32 (Form of Brief,

Appendices, and Other Documents) apply to petitions and

answers thereto, except that a petition or answer may not

exceed 20 pages. The petition shall be captioned: "[Name of

Petitioner], Petitioner, v. [Name and Title of Respondent],

Respondent." See also Rule 6 (Protection of Privacy); Rule 48

(Sealing of Cases).

(2) The requirements of Rule 3(h) (Translations) apply

to any non-English-language document appended to a petition

or an answer.

(c) Consolidated Petitions. Petitions may be

consolidated by order of the Court on its own initiative or on a

party's motion. Any motion to consolidate must contain an

assertion of why consolidation is appropriate, be served on all

involved parties, and comply with the requirements of Rule 27

(Motions).

(d) Action on the Petition. Unless the Court

concludes that the petition should be denied, the Court will

order the respondent(s) to file an answer to the petition within a

12

fixed time. Two or more respondents may answer jointly. If

required, the Clerk will notify the parties of the time limits for

the filing of any briefs and of the date of any oral argument.

RULES 22 and 23. (RESERVED)

RULE 24. WAIVER OF FILING FEE

Payment of the filing fee required by Rule 3(f)

(Payment of Fees) or Rule 21(a) (Petition: Service, Content,

and Filing) will be waived, based on financial hardship, in any

case where the appellant (or petitioner) submits a declaration of

financial hardship and that declaration is accepted for filing.

The Court may request additional information, as it deems

appropriate. The declaration of financial hardship will be

subject to the penalty for perjury pursuant to 28 U.S.C. § 1746.

The declaration shall either be on Form 4 in the Appendix of

Forms or contain the detail called for in that form. If the

declaration is found to lack a signature or to be otherwise

noncompliant, it will be returned; not later than the time fixed

by the notice of returned documents, either the filing fee shall

be paid or a new declaration that addresses the deficiencies in

the noncompliant declaration shall be submitted.

RULE 25. FILING AND SERVICE

(a) Document Submission and Filing. In General. A document required or permitted to be

filed in the Court with regard to an appeal or petition for

extraordinary relief shall be submitted to the Clerk with proof

of service. See E-Rule 1(a)(6) (Notice of Docket Activity).

Submitted documents otherwise proper for filing shall generally

be filed by the Clerk as of the date of receipt by the Clerk.

Parties are responsible for delivery of any document to the

Court. Confirmation of receipt or filing may be obtained

13

by accessing the case docket on the Court's website at


Notice of Appeal or petition for extraordinary relief.

A Notice of Appeal or petition for extraordinary relief may be

submitted by mail, personal delivery or other delivery service,

or fax, or as an attachment to an email, as designated in

subsection (b).

(1) Document submission and filing by representatives

and amici curiae required to use CM/ECF. Subject to the

exceptions in Rules 25(a) (Document Submission and Filing)

and 25(b) (Method and Timeliness) for a Notice of Appeal or

petition for extraordinary relief, and for a notice of appearance,

fee agreement, or declaration of financial hardship emailed

concurrently with the Notice of Appeal or petition for

extraordinary relief, all submissions by a representative or

amicus curiae shall be submitted through the CM/ECF system.

See Rule 1(c) (CM/ECF/Non-CM/ECF Electronic Filing) and

see generally E-Rules.

(2) Document submission and filing by self-represented

parties and others exempt from using CM/ECF. All

submissions by self-represented parties and others exempted by

the Court from using CM/ECF may be submitted by mail,

personal delivery or other delivery service, or fax, or as an

attachment to an email to the Clerk. See Rule 25(b) (Method

and Timeliness).

(b) Method and Timeliness.

(1) Mail, personal delivery, or other delivery service.

Submissions by mail, personal delivery, or other delivery

service shall be mailed or delivered to the Clerk of the Court,

U.S. Court of Appeals for Veterans Claims, 625 Indiana

Avenue, NW, Suite 900, Washington, DC 20004-2950.

(A) Submissions through the U.S. Postal Service

shall be deemed received by the Clerk as of the date of



14

postmark. Otherwise the Clerk shall use the actual date

of receipt for filing purposes.

(B) A document submitted through the U.S. Postal

Service by a self-represented party who is an inmate

confined in an institution is timely filed if the document

is deposited in the institution's internal mail system

within the time specified for filing and is accompanied

by evidence showing the date of deposit and stating that

first-class postage has been prepaid.

(2) Fax. Submissions by fax shall be faxed to the

Clerk of the Court at (202) 501-5848.

(A) The Clerk shall use the actual date of receipt

for filing purposes.

(B) Faxed documents shall be preceded by a cover

sheet showing the sender's name, address, and telephone

and fax numbers; the Court case number, if one has

been assigned, and caption; and the number of pages

being sent.

(3) Email.

(A) CM/EFC Users. A Notice of Appeal, petition for

extraordinary relief, or a notice of appearance, fee agreement,

or declaration of financial hardship submitted concurrently

therewith, may be submitted as an attachment to an email to the

Clerk at [email protected]. All documents

attached to emails must be in pdf format, have at the top the

names of the parties, and bear an electronic signature. Also,

the subject line of the email forwarding the document should

include the name of the document (e.g., Notice of Appeal) and

the names of the parties. See E-Rule 1(a)(2) and (9)

(Definitions) and E-Rule 10 (Electronic Signatures). No other

documents may be submitted by email. The Clerk shall use the

actual date of receipt for filing purposes.


15

(B) Non-CM/ECF Users.

(i) Self-represented parties. Self-represented parties

may submit any document as an attachment to an email to the

Clerk at [email protected]. All documents attached

to emails must be in pdf format; have at the top the names of

the parties and the docket number of the case, if one has been

assigned; and bear an electronic signature. Also, the subject

line of the email forwarding the document should include the

name of the document (e.g., Motion To Dispute RBA), the

names of the parties, and the docket number of the case, if

available. See E-Rule 1(a)(2) and (9) (Definitions) and E-Rule

10 (Electronic Signatures). The Clerk shall use the actual date

of receipt for filing purposes.

(ii) Represented parties exempted by the Court

from using CM/ECF. Representatives exempted by the Court

from using CM/ECF may submit documents initiating an

appeal (i.e., a Notice of Appeal or petition for extraordinary

relief), as well as a notice of appearance, fee agreement, or

declaration of financial hardship if submitted concurrently

therewith, as an attachment to an email to the Clerk at

[email protected]. Once the case has been

docketed, all other documents may be submitted as an

attachment to an email to the Clerk at

[email protected]. All documents attached to emails

must be in pdf format; have at the top the names of the parties

and the docket number of the case, if one has been assigned;

and bear an electronic signature. Also, the subject line of the

email forwarding the document should include the name of the

document (e.g., Motion to Dispute RBA), the names of the

parties, and the docket number of the case, if available. See E-

Rule 1(a)(2) and (9) (Definitions) and E-Rule 10 (Electronic

Signatures.) The Clerk shall use the actual date of receipt for

filing purposes.

(4) CM/ECF. A separate docket entry shall be used for

each document submitted using CM/ECF. The Clerk shall

consider the actual date of docket entry as the date of receipt






16

for filing purposes and that date shall constitute the date of

filing unless the Clerk notes otherwise on the docket.

(c) Manner and Proof of Service. Any document

submitted for filing with the Court shall be served on all parties

in the case.

(1) CM/ECF Users. When a document is submitted

through the CM/ECF system, the system will electronically

generate a notice of docket activity. That notice shall

constitute both service and proof of service of the submitted

document with regard to any party in that case who is also a

CM/ECF User.

(2) Non-CM/ECF Users. Service by or on a party who

is a Non-CM/ECF User shall be accomplished by providing a

copy of the document to be filed to a responsible person at the

office of the representative of a party, or the office or home of

a party, by personal delivery, mail, or private commercial

carrier. Proof of service is accomplished by submitting with

the document to be filed either:

(A) an acknowledgment by the person served of

his or her personal service, or

(B) a statement certified by the person(s) who

made service, showing the date and manner of service

and the names and addresses of the persons served.

Proof of service may appear on or be attached to the document

filed. The Secretary's representative is the General Counsel of

the Department of Veterans Affairs, whose address is General

Counsel (027), Department of Veterans Affairs, 810 Vermont

Avenue, NW, Washington, DC 20420-0002.

(d) Identification. All documents submitted for filing

with the Court must be submitted under signature of the party

submitting the document or of the party's representative of

17

record. When a document is submitted for filing through

CM/ECF or email, it shall contain an "electronic signature."

See E-Rule 1(a)(2)(Definitions) and E-Rule10 (Electronic

Signatures).

RULE 26. COMPUTATION AND EXTENSION OF

TIME

(a) Computing Time.

(1) General rule. In computing a period of time set by

these Rules, or by a Court order, or by a statute, the day of the

event that begins the period is not included. The last day of the

period is included, unless it is a Saturday, Sunday, legal

holiday, or day the Court is closed at the direction of the Chief

Judge.

(2) Legal holidays. As used in this Rule, "legal

holiday" means New Year's Day, Martin Luther King, Jr.'s

Birthday, Presidents' Day, Memorial Day, Independence Day,

Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,

Christmas Day, and any other day declared a holiday by the

President or Congress.

(3) Notices. Notice that the Court is closed or

inaccessible will be posted publicly, on the Court's website, if

circumstances permit. See www.uscourts.cavc.gov.

(b) Extension of Time. The Court, on its own

initiative or on a party's motion for good cause shown, may

extend the time set by these Rules for doing any act, or may

permit an act to be done after the expiration of such time, but

the Court may not extend the time for filing a Notice of Appeal

or an application for attorney fees and expenses. See also Rule

5(a) (Stay of Appellate Proceedings). The Court may grant an

extension of time not to exceed a total of 45 days for any

particular filing for good cause. Any motion to extend the time

set by these Rules or by an order or notice of the Court beyond


18

a total of 45 days for a particular filing will be granted only for

extraordinary circumstances.

(1) Content of motion. In addition to the information

required by Rule 27(a) (Content of Motions), the motion shall

state the following:

(A) the date to be extended;

(B) the revised date sought;

(C) the total number of days of extension

previously granted to the movant in the merits or

attorney-fee application phase, as applicable, of the

case;

(D) the total number of days of extension

previously granted to the other party(ies) in the merits

or attorney-fee-application phase, as applicable, of the

case; and

(E) a statement in compliance with Rule 27(a)(5)

(Content of Motions).

(2) Opposition. Any opposition shall be filed with the

Clerk not later than 5 days after the non-moving party is served

with a copy of that motion to extend time. The Court will treat

the motion as unopposed if no opposition is filed within this

period.

(3) Effect of motion. A motion to extend time does not

extend the date on which a pleading or other document is due

to be filed with the Court unless the Court grants that motion.

See Rule 5(b) (Effect of Stay).

(4) Noncompliance. See Rule 45(j) (Noncompliant

Submissions).

19

(c) Additional Time After Service by Mail.

(1) General rule. If a party is required or permitted to

do an act within a period initiated by service of a document

under these Rules on that party by another party and the

document is served by mail, 5 days are added to the period for

doing that act.

(2) Service overseas by Secretary. If a document is

served by the Secretary by means other than through CM/ECF

on an appellant, petitioner, or representative who is located

outside the United States, Puerto Rico, or the Virgin Islands, 30

additional days are added to the applicable period.

(3) Court orders and notices. Additional time under

this Rule is not added to the periods set in Court orders and

notices or in Rules 4 (Filing Appeal; Docketing; Copy of Board

Decision), 35 (Motions for Reconsideration, Panel Decision, or

Full Court Review), and 39(a) (Attorney Fees and Expenses–

Application).

(d) Combined Motions Prohibited. With the

exception of a motion for leave to file an out-of-time motion to

extend time, a motion to extend time may not be combined

with any other motion. The Clerk will return any motion that

violates this subsection.

RULE 27. MOTIONS

(a) Content of Motions. Unless another form is

required by these Rules, an application for relief shall be made

by filing a motion, with proof of service (see Rule 25(c)

(Manner and Proof of Service)) on all other parties. The

motion shall–

(1) contain or be accompanied by any material required

by any of the Rules governing such a motion;

20

(2) state with particularity the specific grounds on

which it is based;

(3) describe the relief sought;

(4) not be accompanied by a proposed implementing

order; and,

(5) if the appellant is represented, indicate whether the

motion is opposed and, if so, whether the moving party has

been advised that a response in opposition will be filed.

(b) Response or Opposition.

(1) Time to file. Unless otherwise prescribed in these

Rules (see, e.g., Rule 26(b)(2) (Computation and Extension of

Time–Opposition)), any party may file a response or

opposition to a motion not later than 14 days after service of

the motion; however, the Court may act on motions authorized

by Rule 8 (Suspension of Secretarial Action or Suspension of

Precedential Effect of Decision of This Court) after reasonable

notice of the motion has been provided to all parties. The

Court may shorten or extend the time for responding to any

motion.

(2) Form of opposition. Unless the Court orders

otherwise, an opposition to a motion shall be filed by an

opposing party in writing, and a motion will be considered

unopposed if such an opposition is not filed.

(c) Motions for Procedural Orders. Notwithstanding

subsection (a) and except as provided in the next sentence, the

Court may act upon motions for procedural orders at any time

without awaiting a response, and, by rule or order of the Court,

the Clerk may dispose of motions for certain procedural orders.

The Clerk may act on motions to extend time for good cause

(but not for extraordinary circumstances) if the motion is not

opposed within 5 days after service on the other party. See

Rule 26(b)(2) (Computation and Extension of Time–

21

Opposition). Any party who may be adversely affected by the

action may, by motion, request that the Court reconsider,

vacate, or modify the action not later than 10 days after the

action is announced.

Court,

(d) Form and Length. Except by permission of the

(1) a motion or response may not exceed 10 pages, and

(2) the form requirements in Rule 32 (Form of Briefs,

Appendices and Other Documents) for principal briefs apply to

motions and responses. See also Rule 6 (Protection of Privacy)

and Rule 37 (Retention Requirements for Documents).

(e) Prohibited Nondispositive Motions. Except as

permitted by Rules 26(d) (Combined Motions Prohibited) and

35(a)(1) (Motion for Reconsideration, Panel Decision, or Full

Court Review–Motion for Reconsideration–Permitted), no

more than one subject may be addressed in any nondispositive

motion. The Clerk will return any motion that violates this

subsection.

(f) Effect of Motions. Filing a motion does not

suspend proceedings or otherwise alter the schedule for filing

documents unless the Court grants the motion. See Rule 5(b)

(Effect of Stay); Rule 26(b)(3) (Effect of Motion).

RULE 28. BRIEFS

(a) Appellant's Brief. The appellant shall file a brief

that, unless the appellant is self-represented and submits an

informal brief pursuant to subsection (e), shall contain, in the

following order, the appropriate division headings and the

following separate divisions:

(1) a table of contents, with page references;

22

(2) a table of authorities consisting of cases

(alphabetically listed), statutes, other authorities cited, and

pages of the record before the agency cited (including a title or

description for each document) in numerical order by record

citation, with references to the page of the brief where they are

cited (see Form 18 (Sample Format for Table of Authorities) in

the Appendix of Forms);

(3) a statement of the issues;

(4) (i) a statement of the case, showing briefly the

nature of the case, the course of proceedings, the result below,

and the facts relevant to the issues, with appropriate page

references to the record before the agency;

(ii) when citing to the record, citations shall

include the specific page(s) being cited, followed in

parentheses by citation to all pages of the document from

which the referenced page is cited. When relevant, specific

pages for envelopes and date stamps associated with the

document shall be included. Parties shall not cite solely to the

Board decision for any factual underlying issues on appeal,

unless the source document is unavailable;

Practitioner's Note: Parties are charged with

exercising judgment in determining what

constitutes the document from which a page

is cited. For example, if there is a 3-page

Notice of Disagreement (NOD) with 100

pages of attachments and the brief is citing

page 2 of the NOD and the attachments are

not essential to or referenced in the brief, the

party need only cite the 3 pages of the NOD

(e.g., R. at 44 (43-45)). As another example,

service medical records as a whole would not

constitute one document, but an entrance

examination report would.

23

(5) an argument, beginning with a summary and

containing the appellant's contentions with respect to the issues

and the reasons for those contentions, with citations to the

authorities and pages of the record before the agency; and,

(6) a short conclusion stating the precise relief sought.

(b) Secretary's Brief.

(1) Content. The Secretary shall file a brief that

conforms to the requirements of subsection (a), but a statement

of the issues or of the case need not be made unless the

Secretary is dissatisfied with the appellant's statement.

(2) Assertion of Board error. The Secretary shall

include in the argument section of the brief any agreement with

the appellant's assertion of Board error, as well as any

independent assertion of Board error deemed material and

relevant to the matters on appeal.

(3) Appropriate relief. For any assertion of Board

error by the Secretary, the Secretary shall identify the relief

that the Secretary considers appropriate.

(c) Reply Brief. The appellant may file a brief in reply

to the Secretary's brief. The reply brief shall contain a table of

authorities that conforms to the requirements of subsection

(a)(2).

(d) Intervenor's Brief. An intervenor may file a brief

not later than 30 days after the appellant's reply brief is filed or

due. See Rule 31(a) (Filing and Service of Briefs–Time

Limits). An intervenor's brief shall conform to the

requirements of subsection (a), but a statement of the issues or

of the case need not be made if the intervenor adopts either the

appellant's or the Secretary's statement.

(e) Self-Represented Party's Brief. Only a self-

represented party may submit an informal brief. The informal

brief form provided by the Court may be used. Informal briefs

24

are exempt from the requirements of subsection (a) of this Rule

and from the requirements of Rule 32 (Forms of Briefs,

Appendices, and Other Documents). An informal brief must

comply with the Rule 32(f) identification requirement and may

not be longer than 30 pages, double-spaced, in at least a 12-point typeface or its equivalent, if handwritten.

(f) Amicus Curiae Brief. See Rule 29 (Brief of an Amicus Curiae).

(g) Motions Prohibited. After the Court has issued the initial notice to file a brief to the appellant, the Court will

not accept a motion, other than a joint motion for remand or

termination, from any party in lieu of a brief required by

subsections (a) through (c). A motion may not be included as

part of any brief; the Court will not act on any motion so

included. The Clerk will return any motion that violates this

subsection.

(h) References to the Record Before the Agency. References in the briefs to the record before the agency shall be

to the pages as transmitted by the Secretary, as described in

Rule 10(a) (Record Before the Agency). See also Rule 28.1(a)

(Preparation of the Record of Proceedings). Commonly

understood abbreviations may be used.

(i) Reproduction of Documents. If determination of the issues requires consideration of superseded statutes, rules,

or regulations, or unpublished authorities, relevant parts shall

be reproduced in the brief or in an appendix. Documents in the

record before the agency may not be reproduced in or attached

to the brief.

(j) Multiple Appellants. In cases involving more than one appellant, including consolidated cases, any number of

appellants may join in a single brief, and any appellant may

adopt by reference any part of the brief of another. Appellants

may similarly join in reply briefs.

25

RULE 28.1. RECORD OF PROCEEDINGS

(a) Preparation of the Record of Proceedings.

(1) Preparation and contents. The Secretary shall

prepare and file the record of proceedings. The record of

proceedings shall contain:

(A) the Board decision(s) being appealed;

(B) any document from the record before the

agency cited in a brief, in its entirety, with any

associated envelope or date stamp if relevant (See

Practitioner's Note to Rule 28(a)(4)(ii)); and,

(C) any other documents before the Secretary and

the Board that are relevant to the issues before the

Board that are on appeal to the Court or relevant to

issues otherwise raised in the appeal.

(2) Arrangement and pagination. The record of

proceedings shall have a cover containing the official caption

of the appeal and shall be arranged and paginated in the same

order as the documents appeared in the record before the

agency. Because certain documents in the record before the

agency may not be included in the record of proceedings, this

arrangement may result in pages not having consecutive

numbers, e.g., page 22 may be followed immediately by page

43.

(3) Time for filing. The Secretary shall file and serve

the record of proceedings on all parties not later than 14 days

after the reply brief is filed and served, or if no reply brief is

filed, not later than 14 days after the reply brief was due in

accordance with Rule 31(a)(3) (Time Limits for Filing and

Service of Briefs). See also Rule 47(b) (Expedited

Proceedings–Filing and Service of Documents), as applicable.

26

(b) Disputes. If any dispute arises as to the

preparation or contents of the record of proceedings, the Court,

on its own initiative or on motion of any party, will resolve the

matter. Any party's motion shall be filed within 14 days after

the record of proceedings has been served and shall describe

the good faith efforts that have been made to resolve the

dispute. An opposing party may file a response to such a

motion not later than 7 days after the motion is served.

(c) Additional Record Material. The Court may

direct any party to file additional record material.

RULE 29. BRIEF OF AN AMICUS CURIAE

(a) When Permitted. A brief submitted to the Court

by an amicus curiae will be filed by the Clerk only after the

Court has granted a motion for leave to file.

(b) Motion for Leave To File. The motion must be

accompanied by the proposed brief and state:

(1) the movant's interest and whether all parties

consent to the filing of the brief;

(2) why the matters asserted are relevant to the

disposition of the case; and

(3) why the Court should grant leave to file the

motion.

(c) Time. An amicus curiae must submit the motion

for leave to file not later than 7 days after the principal brief of

the party being supported is filed unless the Court permits later

filing. An amicus curiae that does not support either party

must file its brief no later than 7 days after the appellant's or

petitioner's principal brief is filed.

27

(d) Form and Content. An amicus brief must comply

with Rules 25 (Filing and Service), 28(a)(1), (2), (5), and (6),

28(h) and (i) (Briefs), 30 (Citation of Certain Authority), and 32

(Form of Briefs, Appendices, and Other Documents); state, at

the outset of the brief, which party the amicus curiae supports,

if any, and the interest of the amicus curiae; and provide a

concise statement of the identity of the amicus curiae, its

interest in the case, and the source of its authority to file. The

brief must avoid repeating the parties' briefs and should focus

on the points not made or not emphasized in them.

(e) Length. An amicus brief may be no more than

one-half the maximum length authorized by these Rules for a

party's principal brief. If the Court grants a party permission to

file a longer brief, that extension does not affect the length of

an amicus brief.

brief.

(f) Reply Brief. An amicus curiae may not file a reply

RULE 30. CITATION OF CERTAIN AUTHORITY

(a) Citation of Nonprecedential Authority. A party,

intervenor, or amicus curiae may not cite as precedent any

action designated as nonprecedential by the Court or any other

court, or that was withdrawn after having been published in a

reporter, except when the cited action has binding or preclusive

effect in the case on appeal (such as via the application of the

law-of-the-case doctrine). Actions designated as

nonprecedential by this Court or any other court may be cited

only for the persuasive value of their logic and reasoning,

provided that the party states that no clear precedent exists on

point and the party includes a discussion of the reasoning as

applied to the instant case. With the exception of decisions of

this Court available electronically, a copy of any unpublished

action referred to shall be attached to the document containing

the reference.

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(b) Citation of Supplemental Authority. When

pertinent and significant authority comes to the attention of a

party after the party's brief has been filed or after oral argument

but before the decision, a party shall promptly file notice with

the Clerk, and serve all other parties. In no case will

supplemental authority-pertinent and significant or otherwise-

be accepted by the Clerk for filing fewer than 7 days preceding

a scheduled oral argument, without leave of the Court. The

notice shall set forth the citation(s) to the authority or include a

copy of the supplemental authority if it is not readily available

in a reporter system. The notice shall refer to the page of the

brief or to a point argued orally to which each citation pertains,

and shall state without argument the reasons for the

supplemental citation(s). Any response shall be made

promptly and shall be similarly limited.

RULE 31. FILING AND SERVICE OF BRIEFS

(a) Time Limits. Except in cases covered by Rule 47

(Expedited Proceedings),

than

(1) the appellant shall serve and file a brief not later

(A) 60 days after the expiration of the 14-day

period provided under Rule 10(b) (Record Before the

Agency–Disputes) for the parties to notify the Court of

any unresolved dispute regarding the Record Before the

Agency, or

(B) 30 days after the completion of the Rule 33

staff conference, whichever is later.

Briefing deadlines may be modified by the Court when

the Court is required to resolve a dispute in connection

with a motion under Rule 10(b);

29

(2) the Secretary shall serve and file a brief not later

than 60 days after service of the appellant's brief; and

(3) the appellant may serve and file a reply brief not

later than 14 days after service of the Secretary's brief.

(b) Effect of Failure To File. If a party fails to file a

brief within the time provided by this Rule or within the time

as extended, the Court, on its own initiative or on motion by a

party, may take appropriate action, to include dismissal of the

appeal or sanctions.

RULE 32. FORM OF BRIEFS, APPENDICES, AND

OTHER DOCUMENTS

(a) Format. Briefs, appendices, and other documents

shall be printed or typewritten. Pages shall be letter size (8 ½

by 11 inches), with margins at least one-inch wide from all

edges, and with type or print on only one side of the page. See

also Rule 6 (Protection of Privacy).

(b) Type; Spacing. If a proportionally spaced

typeface is used, it shall be 13-point or larger. If a monospaced

typeface is used, it shall not contain more than 10½ characters

per inch. Text shall be double spaced (except that motions and

responses under Rule 27(c) (Motions for Procedural Orders)

may be single spaced). Quotations of 50 words or more must

be single spaced. Footnotes must be single spaced and must

conform to the typeface requirements. The parties may not use

photo reproduction that reduces print size smaller than the size

required by this subsection. This subsection does not apply to

pages of an appendix that are legible, unreduced photocopies of

documents.

(c) Caption. A document addressed to the Court shall

contain a caption setting forth the name of the Court, the

Court's case number when assigned, the title of the case, and a

brief heading indicating the purpose of the document. Briefs

30

must begin with a separate caption page; a cover is not

required. See Form 2 in the Appendix of Forms.

(d) Page Numbers. Pages shall be numbered in the

center of the bottom margin, using Arabic numerals for the

pages subject to the page limitation and lower case Roman

numerals for the table of contents, table of authorities,

certificate of service, and any appendix containing superseded

statutes, rules and regulations, and unpublished authorities.

(e) Length of Briefs. Except by permission of the

Court or as limited by Rule 47 (Expedited Proceedings),

principal briefs may not exceed 30 pages and reply briefs may

not exceed 15 pages, not counting the table of contents; the

table of authorities; any appendix containing superseded

statutes, rules, and regulations, and unpublished authorities;

and the certificate of service.

(f) Identification. The signature, printed name,

address, and telephone number of the representative of record

(see Rule 46(a)(3) (Practitioner defined)) or of a self-

represented party shall appear on a brief or other document

submitted for filing to the Clerk.

(g) Noncompliance. See Rule 45(j) (Noncompliant

Submissions).

RULE 33. STAFF CONFERENCE

(a) Participation. The Court may order the

representatives and self-represented parties to participate in a

staff conference, in person or by telephone, to consider

refinement of the issues and such other matters as may help the

Court resolve the case. When necessary, the Court will enter

an appropriate order to control future proceedings. Parties are

strongly encouraged to discuss settlement or alternative

disposition of the matters on appeal.

31

` (b) Pre-Briefing Process. In cases scheduled for pre-

briefing staff conferences:

(1) No later than 14 days prior to the staff conference,

the appellant shall submit to the Secretary and Central Legal

Staff (CLS) a summary of the issues the appellant intends to

raise in the appeal, including citations to relevant authorities

and submission of pertinent material in the record before the

agency;

(2) The summary of issues shall be limited to 10 pages,

subject to the requirements of Rule 32(b); the 10-page limit

does not include submission of pertinent material in the record

before the agency;

(3) Submissions shall be emailed to CLS at CLS-

[email protected] or faxed to CLS at (202) 585-

3951;

(4) The appellant shall also submit for filing with the

Court and serve on the Secretary a certificate of service that

includes the date of the appellant's submission to the Secretary

and to CLS, the specific manner of service (fax or email), and

the names and addresses of the persons served.

(c) Consultation. The representatives of the parties

must consult with their respective clients in good faith to

determine whether joint resolution of the appeal or settlement

is possible. At the time of the staff conference, the

representative must either possess the authority to enter into a

joint resolution of the appeal or settlement to the extent

authorized by the client or be in immediate contact with a

person having such authority.

(d) Nondisclosure to Judges. Statements made during

a conference, including written memoranda submitted for the

conference, may not be disclosed to a Judge of the Court unless

the parties agree in writing to such disclosure. This subsection



32

does not apply to disciplinary actions or judicial review of a

dispute about the content of the record before the agency or

record of proceedings or subsequent Equal Access to Justice

Act (EAJA) applications, pursuant to 28 U.S.C. § 2412(d).

Practitioner's Note: Absent an order of the

Court, the time period for taking any action

under the Court's Rules is not tolled for the

time required to prepare for the staff

conference.

RULE 34. ORAL ARGUMENT

(a) In General. The U.S. Court of Appeals for

Veterans Claims is a Court of national jurisdiction. Generally,

oral argument will be held in Washington, D.C. However, the

Court may hold oral argument anywhere in the United States.

Oral argument will be allowed only when ordered by the Court

and will be held where and when the Court orders.

(b) Motion for Oral Argument. Parties seeking oral

argument should submit a motion for oral argument not later

than 14 days after the reply brief is due or filed, whichever is

sooner. Such motion shall specify therein why such argument

will aid the Court. A motion for oral argument may not be

included in any brief. Oral argument normally is not granted

on nondispositive matters or matters being decided by a single

Judge.

(c) Participation by Amicus Curiae in Oral

Argument. An amicus curiae will be permitted to participate in oral argument only at the invitation of the Court.

(d) Notice of Argument; Postponement; Additional

Time. The Clerk shall advise all parties and issue a public

order as to when and where oral argument is to be heard and

the time to be allowed each party. A request for postponement

of the argument or for the allowance of additional time shall be

33

made by motion filed reasonably in advance of the date fixed

for argument and shall contain a showing of good cause.

(e) Order and Content of Argument. The appellant

will generally open and conclude the argument. In argument

on motions, the movant generally will open and conclude the

argument.

(f) Nonappearance of Parties. If any party fails to

appear to present argument, the Court may hear argument by

any other party who is present.

(g) Physical Exhibits. A party who wishes to use

physical exhibits other than documents shall arrange with the

Clerk to have them placed in the courtroom on the date of the

argument before the Court convenes. After the argument, the

party shall remove the exhibits unless the Court otherwise

directs. If the exhibits are not reclaimed within a reasonable

time after notice is given by the Clerk, they will be disposed of

by the Clerk.

Practitioner's Note: The Court's oral

argument Guide for Counsel is available on

the Court's website at www.uscourts.cavc.gov

or by request.

RULE 35. MOTIONS FOR RECONSIDERATION,

PANEL DECISION, OR FULL COURT REVIEW

(a) Motion for Reconsideration.

(1) Permitted. A party in a case dismissed by the Clerk

pursuant to Rule 45(h) (Sua Sponte Dismissal of Cases) may

move for reconsideration by the Clerk. If the Clerk denies such

reconsideration, the matter will be referred for decision by a

Judge. A party in a case decided by a single judge may move

(A) for reconsideration by the single Judge, (B) for panel


34

decision, or (C) in a single motion, for reconsideration by a

single Judge or for panel decision in the event the single Judge

denies reconsideration. A party in a case decided by a panel

may move (A) for reconsideration by the panel, (B) for full

Court review, or (C) in a single motion, for reconsideration by

the panel or for full Court review in the event the panel denies

reconsideration. A party in a case decided by the full Court

may move for reconsideration by the full Court.

(2) Prohibited. A party may not move for

reconsideration

(A) of a matter if that party has previously filed a

motion for reconsideration of that matter and the Court

has denied that motion, or

(B) of the grant of a motion under subsection (b)

for a decision by a panel when the panel's decision is

that the single-judge decision remains the decision of

the Court, or

(C) of the denial of a motion under subsection (c)

for full Court review.

(b) Motion for Panel Decision. A party in a case

decided by a single Judge may move for a decision by a panel

of the Court.

(c) Motion for Full- Court Review. Motions for full-

Court review are not favored. Ordinarily they will not be

granted unless such action is necessary to secure or maintain

uniformity of the Court's decisions or to resolve a question of

exceptional importance. Subject to the requirements of

subsections (d), (e), and (f), a party may move for a decision by

the full Court–

(1) after a panel has decided a case, or

35

(2) after a panel has denied a motion for reconsideration

or granted a motion for a decision by a panel but held that the

single-judge decision remains the decision of the Court.

(d) Time for Motion. Any motion under this Rule

shall be filed not later than 21 days (51 days if the motion is

filed by an appellant, petitioner, or representative located

outside the United States, Puerto Rico, or the Virgin Islands)

after the date of the dispositive action for which

reconsideration, panel review, or full Court review is sought.

Practitioner's Note: Because a motion for

reconsideration by the single Judge may be

combined with a motion for panel decision,

the filing of a motion for reconsideration does

not toll the running of the time for filing a

separate motion for panel decision. Likewise,

because a motion for panel reconsideration

may be combined with a motion for full

Court review, the filing of a motion for panel

reconsideration does not toll the running of

the time for filing a separate motion for full

Court review. Thus, to be timely, any motion

for panel or full Court review must be filed

within the 21-day filing period.

(e) Content of Motion. A motion under this Rule

shall contain a supporting argument. In addition–

(1) a motion for panel decision, or a motion for single-

judge, panel, or full Court reconsideration shall state the points

of law or fact that the party believes the Court has overlooked

or misunderstood;

(2) a motion for panel decision also must state why the

resolution of an issue before the Court would establish a new

rule of law; modify or clarify an existing rule of law; apply

established law to a novel fact situation; constitute the only

recent, binding precedent on a particular point of law; involve a

36

legal issue of continuing public interest; or resolve a case in

which the outcome is reasonably debatable; and

(3) a motion for full-Court review shall state–

(A) how such action will secure or maintain

uniformity of the Court's decisions; or

(B) what question of exceptional importance is

involved.

(f) Form and Length. Except by the Court's

permission, a motion or response (including any supporting

memorandum or brief) under this Rule may not exceed 15

pages. The motion shall otherwise comply with Rules 25

(Filing and Service) and 27 (Motions), but it need not indicate

whether it is opposed.

(g) Response; Action on the Motion. No response to

a motion under this Rule may be filed unless it is requested by

the Court, but a motion for full Court review ordinarily will not

be granted without such a request. A motion for

reconsideration will be decided by the Judge or panel that

rendered the decision. A motion for panel decision will be

referred to a panel. A motion for full Court review or for

reconsideration of a full Court decision will be referred to all of

the Judges in regular active service. Consideration by the full

Court requires the vote of at least a majority of the eligible

Judges in regular active service.

RULE 36. ENTRY OF JUDGMENT

(a) Judgment. Judgment begins the 60-day time

period for appealing to the U.S. Court of Appeals for the

Federal Circuit.

(b) Date of Judgment.

37

(1) Judgment is effective on

(A) the date prescribed in a Court order or

decision, or

(B) the date of a Court order on consent (i)

dismissing, terminating, or remanding a case, or (ii)

granting or dismissing an uncontested application for

attorney fees and expenses, when the order states that it

constitutes the mandate of the Court.

(2) Unless the Court orders otherwise, judgment is

effective when entered on the docket, which will be after the

later of

(A) the date on which the time allowed in Rule

35(d) (Time for Motion) has expired, or

(B) the date on which the Court renders a decision

on any motion(s) filed pursuant to Rule 35 (Motions for

Reconsideration, Panel Decision, or Full Court Review)

when no further motion under Rule 35 is permitted to

be filed.

Practitioner's Note: Judgment is relevant to

determining the expiration of time in which

to file an appeal of a decision of the Court or

file an application pursuant to 28 U.S.C. §

2412(d). Because entry of mandate on the

docket is a ministerial act and may not occur

on the date of mandate, practitioners are

cautioned to use diligence when calculating

time periods so as to ensure timely filings.

See Rule 41.

38

RULE 37. RETENTION REQUIREMENTS FOR

DOCUMENTS

(a) Represented Parties. When the appellant or

petitioner is represented, the representative shall retain copies

of the record before the agency, all documents filed with the

Court by the parties or any intervenor or amicus curiae, and all

actions issued by the Court.

(b) Self-Represented Parties. When the appellant or

petitioner is self-represented, the Secretary shall retain copies

of the record before the agency, all documents filed with the

Court by the parties or any intervenor or amicus curiae, and all

actions issued by the Court.

(c) Duration of Retention. Documents described in

subsections (a) and (b) shall be retained for not less than one

year after all proceedings are concluded, including those

concerning attorney fees and expenses.

RULE 38. FRIVOLOUS FILINGS; FAILURE TO ACT

(a) Frivolous Filings. If the Court determines that an

appeal, petition, motion, or other filing is frivolous, it may,

after a separately filed motion by a party or notice from the

Court and reasonable opportunity to respond, enter such order

as it deems appropriate, to include sanctions, dismissal of the

appeal, or reduction in any award under 28 U.S.C. § 2412(d).

(b) Failure To Act. Failure to take any step under

these Rules, or to comply with an order of the Court, may be

grounds for such action as the Court deems appropriate,

including dismissal of the appeal or assessment of costs.

39

RULE 39. ATTORNEY FEES AND EXPENSES

(a) Application. An application pursuant to 28 U.S.C.

§ 2412(d), the Equal Access to Justice Act (EAJA), for award

of attorney fees and/or other expenses shall be submitted for

filing with the Clerk not later than 30 days after the Court's

judgment becomes final. See Rule 36 (Entry of Judgment) and

Rule 41 (Mandate). The time for filing an application under

this subsection is set by statute. The application shall include

the fees and expenses claimed for the submission of that

application.

(1) Response. Not later than 30 days after the date on

which an application described in section (a) is filed, the

Secretary shall submit for filing and serve a response to that

application. If the Secretary disputes the amount of fees and

expenses sought, before the Secretary files a response the

parties shall consult in good faith to seek expeditious resolution

of the matter. The response shall state which elements of the

application are not contested and explain the Secretary's

position on those elements that are contested.

(2) Reply. Not later than 30 days after service of any

response by the Secretary, the applicant may submit for filing

and serve a reply addressing those matters contested by the

Secretary.

(b) Supplemental Application. Except as provided in

paragraph (3) of this section, a party whose application

described in section (a) has been granted in whole or in part

may, not later than 20 days after the Court action granting such

application, file a supplemental application for attorney fees

and other expenses in connection with the defense of such

application. A supplemental application shall include the fees

and expenses claimed for the submission of that supplemental

application.

(1) Response. Unless unopposed, and except as

provided in paragraph (3) of this section, not later than 20 days

40

after the date on which a supplemental application is filed, the

Secretary shall submit for filing and serve a response to that

supplemental application. If the Secretary disputes the amount

of fees and expenses sought, before the Secretary files a

response the parties shall consult in good faith to seek

expeditious resolution of the matter. The response shall state

which elements of the supplemental application are not

contested and explain the Secretary's position on those

elements that are contested.

(2) Reply. Not later than 10 days after service of any

response by the Secretary, the applicant may submit for filing

and serve a reply addressing those matters contested by the

Secretary.

(3) Supplemental applications for work performed

before other courts.

(A) Appeals to the Federal Circuit. When an

action on an application appealed to the U.S. Court of

Appeals for the Federal Circuit is returned to the Court

and the application has been granted in whole or in part

by any court, any supplemental application (over which

the Court has jurisdiction) based on representation

provided in that appeal may be filed in the Court not

later than 20 days after the mandate is issued by that

court. See FED. R. APP. P. 41; FED. CIR. R. 41.

(B) Appeals to the U.S. Supreme Court. When an

action on an application appealed to the Supreme Court

is returned to the Court and the application has been

granted in whole or in part by any court, any

supplemental application (over which the Court has

jurisdiction) based on representation provided in that

appeal may be filed in the Court not later than 20 days

after the expiration of the time for filing a petition for a

rehearing by the Supreme Court. See SUP. CT. R. 45.

41

(C) Timing of Supplemental Responses and

Replies. When a supplemental application is filed

under paragraph (A) or (B) of this section, the Court

will issue an order specifying the timing of responses

and replies to ensure that all previous applications have

been resolved before requiring a response to the next

application.

(c) Dispute Resolution. In addition to the good faith

resolution requirements of subsections (a)(1) and (b)(1), either

party may request or the Court may direct that a staff

conference, pursuant to Rule 33, be conducted in person or by

telephone to discuss resolution of the contested elements of the

application.

(d) Appendices. The parties shall attach as appendices

to any pleading submitted for filing under this Rule those

documents that are not already before the Court that are

necessary to meet the application content requirements of

28 U.S.C. § 2412(d).

(e) Form and Length. All documents submitted for

filing under this Rule shall conform to the requirements set

forth in Rule 32 (Form of Briefs, Appendices, and Other

Documents), except that no submission for filing may exceed

20 pages, not counting any appendix containing pages

necessary to meet the application content requirements of

28 U.S.C. § 2412(d).

(f) Multiple Representatives. Applications for EAJA

fees in cases in which reimbursement is sought for the work of

more than one representative must include a single,

consolidated, chronological billing statement for the full fee

award requested. That single billing statement shall be in

tabular form with entries listed in chronological order and

depict the work done on the case on each date, identifying the

representative who did the work, and must be signed by the

lead representative, who will be responsible for its accuracy

and completeness. The lead representative must sign the

42

combined billing statement under a certification that he or she

has (1) reviewed the combined billing statement and is satisfied

that it accurately reflects the work performed by all

representatives and (2) considered and eliminated all time that

is excessive or redundant.

(g) Additional Requirements for Non-Attorney

Practitioners. A non-attorney practitioner must include in the

application for EAJA fees a statement of the non-attorney

practitioner's education and experience in representing

claimants before this Court and a justification for the hourly fee

sought.

RULE 40. RULES ADVISORY COMMITTEE

(a) General. The Court will have a Rules Advisory

Committee (Committee) to study and advise the Court on

possible changes to Rules of the Court, either sua sponte or at

the request of the Court. The Committee will submit its

recommendations to the Chief Judge through the Clerk.

(b) Appointment. The Chief Judge, with the

concurrence of the Board of Judges, will appoint nine members

of the Court's bar to serve on the Committee, eight as members

and one as the chair. At least two members of the Committee

will be attorneys employed by the Department of Veterans

Affairs.

(c) Terms.

(1) Length of terms. Each member and each new chair

will be appointed for a term of two years. Notwithstanding the

terms provided for in the preceding sentence, the term of any

person serving by virtue of employment by VA will end

automatically at such time as the person is no longer so

employed.

43

(2) Reappointment. Except as otherwise provided, a

member may serve three terms consecutively; a break in

service permits a new series of three consecutive terms. A

person may be appointed to three consecutive terms as the

chair notwithstanding any term or terms as a member; a break

in service as the chair permits a new series of such terms or a

new series of three terms as a member. There is no limit on the

number of nonconsecutive terms to which any person may be

appointed as a member or the chair of the Committee. A

member or the chair may continue to serve until a successor

has been appointed.

(3) Resignation or removal. A member or the chair of

the Committee may resign from the Committee. The Chief

Judge, with the concurrence of the Board of Judges, may,

based on the disability of the member or the chair or for other

good cause, revoke an appointment at any time.

RULE 41. MANDATE

(a) Mandate. Mandate is when the Court's judgment

becomes final and is effective as a matter of law pursuant to

38 U.S.C. § 7291.

(b) Date of Mandate. Mandate generally is 60 days

after judgment entered unless–

(1) a timely notice of appeal to the U.S. Court of

Appeals for the Federal Circuit is filed with the Clerk, see

38 U.S.C. § 7291(a) et seq., or

(2) mandate was issued as part of an order on consent

(i) dismissing, terminating, or remanding a case, or (ii) granting

or dismissing an uncontested application for attorney fees and

expenses (see Rule 36(b)(1)(B)), or

(3) the Court directs otherwise.

44

Practitioner's Note: Mandate is relevant to

determining the expiration of time in which

to file an appeal of a decision of the Court or

file an application pursuant to 28 U.S.C. §

2412 (d). Because entry of mandate on the

docket is a ministerial act and may not occur

on the date of mandate, practitioners are

cautioned to use diligence when calculating

time periods so as to ensure timely filings.

RULE 42. VOLUNTARY TERMINATION

OR DISMISSAL

If the parties file with the Clerk a motion to terminate a

matter (other than an application for attorney fees and

expenses) based upon a settlement agreement to be effective

upon the Court's termination of the case, the Clerk may enter

the case terminated. On motion of the appellant or petitioner

for dismissal, the Clerk may dismiss an appeal, petition, or

application for attorney fees and expenses on terms requested

by the appellant or petitioner, agreed upon by the parties, or

previously fixed by the Court.

RULE 43. SUBSTITUTION OF PARTIES

(a) Death of a Party.

(1) Before Notice of Appeal. If a party entitled to

appeal dies before filing a Notice of Appeal, any person

permitted by law to do so may file the Notice of Appeal within

the time limit in Rule 4 (Filing of Appeal; Docketing; Copy of

Board Decision).

(2) After Notice of Appeal. If a party dies after a

Notice of Appeal is filed or while a proceeding is pending in

the Court, the personal representative of the deceased party's

estate or any other appropriate person may, to the extent

45

permitted by law, be substituted as a party on motion by such

person. Any party or representative who becomes aware of the

appellant's death shall notify the Court of the death of an

appellant and proceedings will then be as the Court directs.

(b) Substitution for Other Causes. If substitution of

a party in the Court is necessary for any reason other than

death, the Court may order substitution on its own initiative or

on a party's motion.

(c) Death or Separation from Office of Public

Officer. When a public officer is a party in an official capacity

and during the proceedings dies, resigns, or otherwise ceases to

hold office, the proceedings are not stopped and the public

officer's successor is automatically substituted as a party.

Proceedings following the substitution will be in the name of

the substituted party, but any misnomer not affecting the

substantial rights of the parties will be disregarded.

RULE 44. JUDICIAL CONFERENCE

(a) Purpose. Pursuant to 38 U.S.C. § 7286, there shall

be convened, at such time and place as the Chief Judge

designates, a conference to consider the business of the Court

and to recommend means of improving the administration of

justice within the Court's jurisdiction.

(b) Committee. The Chief Judge will appoint a

Judicial Conference Planning Committee to plan and conduct

the conference. The Planning Committee may appoint such

subcommittees as may be necessary to ensure the efficient

operation of the conference.

(c) Attendance. The Chief Judge presides at the

conference. All persons admitted to practice before the Court,

and such other persons as are designated by the Chief Judge,

may be members of and participate in the conference.

46

(d) Registration Fee. Each member of the conference

other than Judges of the Court shall pay a registration fee in an

amount fixed by the Court to defray expenses of the

conference. The Chief Judge may excuse the payment of the

fee in individual cases. These fees are governed by 38 U.S.C.

§ 7285.

(e) Responsibility of the Clerk. The Clerk is

responsible for receipt and disbursement of conference funds,

for all conference records and accounts, and for conference

staff support, and performs such other duties pertaining to the

conference as may be directed by the Chief Judge.

(f) Delegation. The Chief Judge may delegate any or

all of his or her responsibilities to another Judge of the Court.

RULE 45. DUTIES OF CLERK

(a) General Provisions. The Clerk shall take the oath

required by law. Neither the Clerk nor any deputy clerk may

practice as an attorney or counselor in any court while

continuing in office. The office of the Clerk is open during

business hours on all days except Saturdays, Sundays, legal

holidays, and other days when the Court is closed (see Rule

26(a) (Computing Time)) from 9:00 a.m. to 4:00 p.m. A night

box is available at the entrance to the Public Office from 4:00

p.m. to 6:00 p.m. on all days that the Court is open. But see

Rule 25(a) (Document Submission and Filing); (b)(2), and

(b)(3) (Method and Timeliness-Fax and Email) and E-Rule

5(c) (Effects of Filing Through CM/ECF).

(b) The Docket; Calendar; Other Records Required.

The Clerk shall–

(1) maintain a docket containing a record of all

documents filed with the Clerk, and all process, orders, and

judgments;

47

(2) maintain an index of cases contained in the docket;

(3) prepare, under the direction of the Court, a calendar

of cases submitted or waiting argument; and

(4) keep such other books and records as may be

required by the Court.

(c) Notice of Court Actions. Immediately upon

issuance of an opinion, memorandum decision, or order, or

upon entry of judgment or mandate, the Clerk shall send a copy

or notification to each party to the proceeding and note in the

docket the issuance or entry date. Electronic transmission of

the notice of docket activity constitutes such notice for all

CM/ECF Users.

(d) Custody of Records and Papers. The Clerk is

custodian of the records and documents of the Court. The

Clerk shall not permit any original record or document to be

taken from the Clerk's custody except as authorized by law.

The Clerk shall retain, archive, or otherwise dispose of

documents submitted for filing, as required or otherwise

permitted by law.

(e) Court Seal. The Clerk is the custodian of the seal

of the Court. The seal will appear as ordered by the Court.

The seal is the means of authentication of all records,

certificates, and process issued from the Court.

(f) Schedule of Fees. The Clerk shall maintain in the

Public Office and on the Court website a schedule of fees

approved by the Court.

(g) Motions. Unless a case has been assigned to a

Judge or Judges or unless otherwise directed by the Court, the

Clerk may act on motions and applications, if joint, consented

to, or unopposed, that seek to–

48

(1) dismiss or terminate an appeal or petition with

or without prejudice to reinstate it;

(2) remand a case;

(3) reinstate a case that was dismissed for failure

to comply with the Rules;

(4) extend the time for taking any action required

or permitted by the Rules or by an order of the Court, unless

the motion is made after the time limit has elapsed or unless the

basis for the motion is extraordinary circumstances as required

by Rule 26(b) (Extension of Time);

(5) stay a case, with the exception that for the

purpose of allowing the parties time to negotiate a settlement or

other joint resolution, the Clerk may stay a case for only up to a

total of 60 days;

(6) consolidate appeals;

(7) withdraw or substitute an appearance;

(8) correct a brief or other document; or

(9) obtain attorney fees and expenses pursuant to

28 U.S.C. § 2412(d).

(h) Sua Sponte Dismissal of Cases. The Clerk may

dismiss a case for the appellant's failure to pay the filing fee or

to file a brief. See also Rule 35(a) (Motion for

Reconsideration).

(i) Construction of Rules in Self-Representation

Cases. Consistent with the practice of the Court, the Clerk will

liberally construe the Rules as they apply to self-represented

appellants.

49

(j) Noncompliant Submissions. Except where return

of a document is required by these Rules for a specific reason

(see Rules 5(d) (Stay of Appellate Proceedings–Combined

Motions Prohibited), 24 (Waiver of Filing Fee), 26(d)

(Computation and Extension of Time–Combined Motions

Prohibited), 27(e) (Prohibited Nondispositive Motions) and

28(g) (Motions Prohibited)), if the Court receives any

document that does not conform to these Rules, the Clerk will

receive, but not file, the submission; however, if it is a

jurisdiction-conferring document, it will be filed

notwithstanding any other provision of these Rules. In every

case, the Clerk will promptly notify the party of the defect(s) to

be corrected and may, in accordance with guidance from the

Court, stay proceedings for a reasonable time in order to permit

submission of a conforming document. Failure to submit such

conforming document in a timely manner may result in the

dismissal of the matter.

RULE 46. PRACTICE BEFORE THE COURT AND

REPRESENTATION

(a) Practice Before the Court.

(1) Admission of attorneys to bar of Court.

(A) General. A person of good moral character

and repute who has been admitted to practice in the

Supreme Court of the United States, or the highest court

of any state, the District of Columbia, or a United States

territory or commonwealth within the meaning of 48

U.S.C. § 1904(e)(5), and is in good standing therein,

may be admitted to the bar of the Court upon

application. See Rules of Admission and Practice.

(B) Active Status. Practice before the Court

requires an attorney to maintain active status in good

standing in the highest court of any state, the District of

Columbia, or a United States territory or

50

commonwealth within the meaning of 48 U.S.C. §

1904(e)(5).

(C) Application. An attorney at law may be

admitted to the bar of the Court upon filing with the

Clerk a completed application accompanied by the

applicable fee (payable by check or money order) and a

current certificate from the clerk of the appropriate

court showing that the applicant is a member in good

standing of the bar of one of the courts named in

paragraph (A) of this subsection. A current court

certificate is one executed not earlier than 3 months

before the date of the filing of the application.

(2) Admission of non-attorneys to practice. A non-

attorney of good moral character and repute who is —

(A) under the direct supervision (including

presence at any oral argument) of an attorney admitted

to the bar of the Court, or

(B) employed by an organization that is chartered

by Congress, is recognized by the Secretary of Veterans

Affairs for claims representation, and provides a

statement signed by the organization's chief executive

officer certifying to the employee's

(i) understanding of the procedures and

jurisdiction of the Court and of the nature, scope,

and standards of its judicial review; and

(ii) proficiency to represent appellants before

the Court

may be admitted to practice before the Court as a non-attorney

practitioner upon filing with the Clerk a completed application

accompanied by the applicable fee (payable by check or money

order). In making the statement under this paragraph, the chief

executive officer should be aware that knowledge of and

51

competence in veterans law and the administrative claims

process does not in and of itself connote competence in

appellate practice and procedure.

(3) Practitioner defined. A person who has been

admitted under this subsection or has been permitted to appear

under subsection (b)(1)(F) is referred to in this Rule as a

practitioner.

(4) Change of address. Each practitioner shall give the

Clerk and all other parties written notice (not included in

another filing) of any change of his or her electronic or street

address or telephone or fax number. Absent such notice, the

delivery of documents to the address most recently provided by

that person will be fully effective.

(b) Representation Requirements.

(1) General appearance.

(A) Appellants' Representatives. Each practitioner

representing an appellant shall submit for filing with the

Court and serve on the Secretary, no later than the date

of the first filing submitted by the practitioner on behalf

of the appellant, a notice of appearance in the detail set

out in Form 3 in the Appendix of Forms, and a copy of

any retainer agreement and any fee agreement for

representation before the Court, which when

electronically filed will be locked (see E-Rule 4(a)).

(B) Secretary's Representatives. Each practitioner

representing the Secretary shall submit for filing with

the Court and serve on the appellant, no later than the

date on which the Secretary files the record before the

agency, a notice of appearance. The Secretary may

substitute a practitioner of record at any time by

submitting for filing with the Court and serving on the

appellant a notice of appearance of the new practitioner.

52

(C) Appearance by a Non-Attorney Practitioner.

Each notice of appearance and pleading submitted for

filing by a non-attorney practitioner shall include the

name, address, and signature of the responsible

supervising attorney under subsection (a)(2)(A) or the

identification of the employing organization under

subsection (a)(2)(B).

(D) Appearance by Multiple Representatives. In

cases where multiple representatives submit for filing a

notice of appearance, one representative must be designated

as lead representative. When an additional representative for

appellant or intervenor is not designated as lead representative,

that representative may withdraw his or her appearance without

obtaining the Court's permission as would otherwise be required

by section (c) below (Withdrawal From Representation). The

lead representative shall promptly file a notice in each case

informing the Clerk's Office that the additional representative is

no longer representing the appellant or intervenor, that notice of

the withdrawal of the additional representative has been provided

to the appellant or intervenor, and that the additional

representative's name should be removed from the docket.

(E) Appearance by an Organization Prohibited.

With the exception of an organization operating under

the provisions of Public Law No. 102-229, see

Practitioner's Note to Rule 5, an appearance may not be

made in the name of a law firm or other organization.

(F) Appearance in a Particular Case. On motion

and a showing of good cause, and submission of a

completed application, the Court may permit any

attorney or non-attorney practitioner not admitted to

practice before the Court, or any other person in

exceptional circumstances, to appear on behalf of a

party or amicus curiae for the purposes of a particular

case. Whenever a person makes an appearance under

this subsection, the person will be deemed to have

conferred disciplinary jurisdiction upon the Court for

any alleged misconduct in the course of, in the

53

preparation for, or in connection with any proceeding in

that case. Each attorney and non-attorney practitioner

generally is limited to one appearance under this

subsection. Except as permitted by the Court, any

subsequent appearances shall be made under Rule 46(a)

(1) (Admission of Attorneys to Bar of Court) or (a)(2)

(Admission of Non-Attorneys to Practice).

(G) Appearance by Law Students.

(i) General. An eligible law student, with the

written consent of the appellant and the attorney of

record, who is a member of the bar of the Court,

may appear in the Court as the Court may allow.

(ii) Participation defined. An eligible law

student may participate in the preparation of briefs

and other documents to be filed in the Court, but

such briefs or documents shall be signed by the

attorney of record. The student may also

participate in oral argument with leave of the

Court, but only in the presence of the attorney of

record. The attorney of record shall personally

assume professional responsibility for the law

student's work and for supervising the quality of

his or her work. The attorney shall be familiar

with the case and prepared to supplement or

correct any written or oral statement made by the

student.

(iii) Conditions of appearance. In order to

make an appearance pursuant to this Rule, the

student shall–

(aa) be duly enrolled in a law school

approved by the American Bar Association;

(bb) have completed legal studies

amounting to at least two semesters or the

equivalent if studies are scheduled on other

54

than a semester basis;

(cc) be certified, by the dean of the law

school in which the law student is enrolled, as

being of good character and competent legal

ability (this certification shall be submitted for

filing with the Clerk and may be withdrawn at

any time by the dean, upon written notice

tothe Clerk, or by the Court, without notice

or hearing and without any showing of cause);

(dd) be introduced by the attorney of

record in the case;

(ee) neither ask for nor receive any

compensation or remuneration of any kind for

his or her services from the person on whose

behalf such services are rendered, but this will

not prevent an attorney, legal aid bureau, law

school, a state, the District of Columbia, or a

United States territory or commonwealth

within the meaning of 48 U.S.C. § 1904(e)(5),

or the United States from paying

compensation to the eligible law student, nor

will it prevent any agency from making such

charges for its services as it may otherwise

properly require;

(ff) certify in writing that he or she has

read and is familiar with the code of

professional responsibility or rules of

professional conduct in effect in the state or

jurisdiction in which the student's law school

is located and with the rules governing

practice in the Court (see Rule 4 of the Court's

Rules of Admission and Practice).

(2) Limited appearance.

(A) Notice of Appeal. Any practitioner appearing

55

for the limited purpose of submitting a Notice of

Appeal for filing with the Court shall, when submitting

such Notice of Appeal:

(i) provide the appellant's current address and

telephone number; and

(ii) aver to the Court that the appellant has

been advised, or, alternatively, will be advised, of

the appellant's responsibility to abide by the

Court's Rules of Practice and Procedure, including

the need to timely serve and submit for filing a

brief.

(B) Stay for Case Evaluation. A practitioner

representing an organization operating under the

provisions of Public Law No. 102-229 may enter a

limited appearance to seek a stay in a case for the

purpose of case evaluation. See Rule 5(a) (Stay of

Appellate Proceedings–Grounds) and Practitioner's

Note to Rule 5. A limited appearance and stay request

may be presented in a single motion for stay.

Practitioner's Note: Any filing for a limited

appearance by a non-attorney practitioner

must be signed by the supervising attorney.

(c) Withdrawal from Representation. Except as

noted in subsection (b)(1)(B) and (b)(1)(D) (General

appearances) and in subparagraph (2) (Limited appearances), a

practitioner may not withdraw from a case without obtaining

the Court's permission. The practitioner's authority and duty

continue until the practitioner is relieved by the Court, subject

to conditions that the Court considers appropriate.

(1) General appearances. Permission to withdraw

may be sought by submitting for filing a motion to withdraw

that

(A) states the reasons for withdrawal;

56

(B) lists the client's current address and telephone

number;

(C) states whether the client consents to the

withdrawal and, if not, the reason or reasons therefore;

and

(D) contains a representation by the practitioner

that all documents submitted for filing by the parties, all

notices and orders accumulated by the practitioner, and

all files belonging to the client have been provided to

the client or to a named substitute practitioner.

(2) Limited appearances.

(A) Notice of Appeal. If a practitioner has

appeared for the limited purpose of submitting for filing

a Notice of Appeal and averred at that time that the

client had already been advised of the appellant's

responsibility to abide by the Court's Rules of Practice

and Procedure, including the need to timely serve and

submit for filing a brief, withdrawal is automatic at the

time of such submission and a motion to withdraw is

not necessary. In instances where the attorney averred

that the practitioner would in the future advise the

appellant of the appellant's responsibility to abide by

the Court's Rules of Practice and Procedure, including

the need to timely serve and submit for filing a brief,

withdrawal will be granted only upon averment that the

appellant has been so advised. Until such time, the

practitioner remains professionally responsible to the

Court and to the appellant for compliance with the

Court's Rules of Practice and Procedure.

(B) An organization operating under the

provisions of Public Law No. 102-229. Withdrawal is

automatic upon submission for filing of a notice that an

organization operating under the provisions of Public

Law No. 102-229 will not take the case. See

Practitioner's Note to subsection (b)(2)(B).

57

RULE 46.1. SELF-REPRESENTATION

Any appellant, petitioner, or intervenor may be self

represented before the Court. A self-represented party shall

give the Clerk and all other parties written notice (not included

in another filing) of any change of his or her address or

telephone number. Absent such notice, the mailing of

documents to the address most recently provided by that person

will be fully effective. See also Rules 25(b)(1)(B) (filing by

inmate), 28(e) (informal brief), 32(f) (identification), 33(a)

(staff conference), and 45(i) (Rules construed liberally for self-

represented appellants).

RULE 47. EXPEDITED PROCEEDINGS

(a) Motion and Order. On a party's motion for good

cause shown, on written agreement of the parties, or on its own

initiative, the Court may order that any matter before the Court

be expedited with respect to some or all procedural steps. The

following may constitute good cause:

(1) a serious health condition that makes the death of

the appellant or petitioner imminent, as shown by a physician's

statement (including identification of the physician's licensing

authority and current license number);

(2) the advanced age (over 75 years) of the appellant or

petitioner and a state of failing health due to a nontemporary

condition, as shown by a physician's statement (including

identification of the physician's licensing authority and current

license number), such that expeditious proceedings are

necessary to avoid an injustice to the appellant or petitioner; or

(3) any other exceptional circumstances that make

expeditious proceedings necessary to avoid an injustice to the

appellant or petitioner, as shown by credible evidence.

58

(b) Filing and Service of Documents. Expedited

proceedings will be scheduled as directed by the Court. Unless

otherwise ordered, the appellant's principal brief shall be

served and submitted for filing not later than 20 days after the

record before the agency has been served on the appellant; the

Secretary's brief shall be served and submitted for filing not

later than 20 days after service of the appellant's brief; and any

reply brief shall be served and submitted for filing not later

than 10 days after filing of the Secretary's brief. Unless

otherwise ordered, the time to submit the record of proceedings

for filing under Rule 28.1(a)(3) (Record of Proceedings–Time

for Filing) is reduced to 7 days.

(c) Form and Length of Briefs. Briefs submitted for

filing under this Rule shall comply with Rules 25 (Filing and

Service), 28 (Briefs), and 32 (Form of Briefs, Appendices, and

Other Documents), except that principal briefs shall be limited

to 15 pages, reply briefs shall be limited to 7 pages, and a table

of authorities is not required.

RULE 48. SEALING OF CASES

See also Rule 6 (Protection of Privacy)

(a) Cases Involving Protected Records. If, during

the time periods set out in Rule 10 (The Record Before the

Agency) or at any other time during a proceeding before the

Court, the parties identify records protected by 38 U.S.C. §

7332 and at least one of the parties believes that disclosure of

such records is required in such proceedings and further, the

parties cannot agree with respect to the disclosure of such

records, the party requesting disclosure shall make immediate

application therefore, pursuant to 38 U.S.C. § 7332(b)(2)(D),

caption the case "IN RE: SEALED CASE NO. [insert Court docket

number]" (not disclosing the identity of any individual), and

serve on the protected person or successor in interest a copy of

the application. Such application shall include a statement

specifying those steps taken by the parties to reach agreement

before application was made to the Court. Upon receipt of

59

such application, unless otherwise directed by the Court, the

Clerk will enter the case as "withdrawn" on the docket, assign a

new docket number and recaption the case using an encoded

identifier, and seal the record of proceedings and the file of the

Court. Thereafter, any party or representative of a party, unless

otherwise ordered by the Court, shall make reference in any

subsequent filing only to the new docket number and caption

assigned by the Clerk.

(b) Other Cases. The procedures described in this

Rule may, in the Court's discretion, be applied to cases that the

Court orders sealed but that do not contain records protected by

38 U.S.C § 7332.

RULE 49. COMPLAINTS AGAINST JUDGES

Rules for the processing of complaints of judicial

misconduct or disability have been adopted by the Court

pursuant to 28 U.S.C. § 372(c) (superseded by §§ 351-64).

Copies are available from the Clerk on request.

60

INDEX

(References are to Rule, not page number)

Addresses 3(c), (g), 25(b),(c), 32(f),

33(b), 46(a),(b),(c), 46.1 Admission to practice 46(a)

Amicus curiae 29, 30(a), 34(c),

46(b)(1)(F)

Answer (see response)

Appeal

to Federal Circuit 36(a)

frivolous 38(a)

joint or consolidated 3(d), (e)

procedure 3

time to 4(a)

Appearance

generally 46(b)

law students 46(b)(1)(G)

limited 46(b)(2), Form 1

notice of 46(b), Form 3

particular case 46(b)(1)(F)

Argument (see oral argument)

Attorney fees

under EAJA 39

under fee agreement 46(b)(1)(A), Form 3

Attorneys (see representation)

Board of Veterans' Appeals

decision, copy of 4(c)

Brief amicus curiae 29

appellant 28(a),(e), 31, 32

appendix 28(i), 32

contents 28, 29(d)

expedited case 47(b),(c)

format 32, 47(c)

filing and service 25, 31, 47(b)

informal 28(e)

61

intervenor 28(d)

length 32(e), 47(c)

motions, prohibited 28(g)

multiple appellants 28(j)

references in 28(h), Form 18

reply 28(c), 31, 32

Secretary 28(b), 31(a)(2) and (3),32

self-represented party 28(e)

typeface 32(b)

use/protection of

VA claims number 6

Citation

nonprecedential authority 30(a)

supplemental authority 30(b)

Clerk of the Court,

powers and duties 5(d), 24, 26(d),

27(c),(e), 28(g), 44(e), 45

Complaints against Judges 49

Computation of time 26(a)

Conference

judicial 44

staff 33

Confidential information 3(a), 6, 48

Continuation of stay 5(c)

Copies

Notice of Appeal 3(b)

Costs (see fees)

Death, substitution of parties 43

Dismissal

by Clerk of the Court 45(g),(h)

failure to act 38(b)

failure to comply with

Court order 38(b)

failure to conform to rules 45(j)

failure to prosecute 31(b), 38(b)

voluntary 41(b)(2), 42

Docketing (see Notice of)

62

Documents

filing and service 25, 47(b)

form 32

nonconforming 32(g), 45(j)

return by Clerk

of the Court 5(d), 24, 26(d), 27(e),

28(g),45(j)

retention requirements 37

translations 3(h), 21(b)(2)

use/protection of VA

claims number 6

Electronic Filing 1(c)

Email 1(c), 25(a),(b)(3),(d),

33(b)(3)(4)

En banc (see Full Court) Enlargement (see

time, extension of) Exhibits, use at oral

argument 34(g)

Expedited proceedings 47

Extraordinary relief 21

Facsimile (fax)

fax number 3(g)

filing, generally 25(b)(2)

Notice of Appeal 25(a)

Failure to

act 38(b)

appear at oral argument 34(f)

comply with Court order 38(b)

file brief 31(b)

follow Rules of

Practice and Procedure 38(b), 45(j)

Fees attorney 39, 46(a),(b)

filing 3(f), 21(a)

judicial conference 44(d)

payment of filing fee 3(f), 21(a), 24

practice 46(a)(1)(C),(a)(2)(B)

schedule of miscellaneous 45(f)

waiver of filing fee 24

63

Filing

Forms

briefs 28, 31, 47(b)

by facsimile (fax) 25(a),(b)(2)

confirmation 25(a)

email 25(a), (b)(3), (d)

frivolous 38(a)

generally 25

motions 27, 35

motion to intervene 15 (a),(b),(d)

nonconforming paper 45(j)

Notice of Appeal 3(a), Form 1

Notice of Appearance 46(b), Form 3

petition for

extraordinary relief 21

Record Before the Agency 10(a)

Record of Proceedings 28.1

response to motions 26(b)(2),(c)(1),27(b),

35(g) suspension of Secretarial action

or suspension of

precedential effect of

decision of this Court 8

brief, sample caption page-

appellant Form 2

declaration of

financial hardship Form 4

Notice of Appeal Form 1

notice of appearance Form 3

sample format for table

of authorities Form 18

Full- Court consideration 35

Holidays, time computation 26(a)

Hours, Clerk's Office 45(a)

Incarcerated appellants 25(b)(1)(B)

Intervention

by right 15(a)

with permission 15(b),(c),(d)

64

Judges, complaints against 49

Judgment 36

Judicial conference 44

Mandamus 15(d)

Mandate 41

Motion

acted on by Clerk 27(c), 35(a), 45(h)

appearance in particular case 46(b)(1)(F)

combined motions,

prohibited 5(d), 26(d), 27(e)

confidential information,

nondisclosure 6, 48

consolidation of appeals 3(e)

effect 27(f)

expedited proceedings 47

extend time 26(b)

full-Court decision 35(c)

generally 27

in brief, prohibited 28(g)

in lieu of brief, prohibited 28(g)

intervention 15

nonconforming 26(b)(4), 32(g), 45(j)

opposition 26(b)(2), 27(b)(2)

oral argument 34(b)

panel decision 35(b)

prohibited nondispositive

motion 27(e), 28(g)

reconsideration 35(a)

resolution of record dispute 10(b), 28.1(b)

response 26(b)(2), 27(b(2), 35(g)

stay of appellate proceeding 5, 45(g)(5)

substitution of parties 43

suspension of

Secretarial action or

suspension of

precedential effect of

decision of this Court 8


claims number 6

65

voluntary dismissal 42

Night box 45(a)

Noncompliance,

effect of 5(d), 24, 26(b)(4),(d),

27(e), 32(g), 38(b), 45(j)

Nonprecedential authority,

citation of prohibited 30(a)

Notice of

Appeal 3, Form 1

Appearance 46(b)(1), Form 3

Court actions 45(c)

docketing 4(b)

entry of judgment 36

filing of Record Before

the Agency 10(a)

filing of Record of

Proceedings 28.1(a)(3)

nonconforming papers 32(g), 45(j)

oral argument 34(d)

settlement negotiations 33(a)

Opposition, motion 26(b)(2), 27(b)(2)

Oral argument 34

Order, failure to comply 38(b)

Parties, death or substitution 43

Petition, extraordinary relief 21

Privacy, protection 6, 48

Pro se (see self-representation)

Procedural order, motion 27(c)

Proof of service 25(c)

Protected records 6, 48

Reconsideration, motion 35(a)

Record Before the Agency

access to 10(d)

disputes 10(b)

filing 10(a)

postdated materials 10(a)(2)

sealing 10(d), 48

translations 3(h)

66

Record of Proceedings

disputes 28.1(b)

filing 28.1

preparation 28.1(a)

Rehearing (see reconsideration)

Remand, on consent 41(b), 45(g)

Reply brief 28(c), 31(a)(3)

Representation

attorney 46(b)(1)(A)

law students 46(b)(1)(G)

limited appearance 46(b)(2), (c)(2)

nonattorney 46(b)(1)(C)

particular case 46(b)(1)(F)

Secretary of Veterans Affairs 25(b)(1)(B)

self-represented 46.1

withdrawal 46(b)(1)(D), (c)

Response

to attorney fee application 39(a)(1),(a)(2),(b)(1),(b)(2)

to motion 26(b)(2), 27(b)

to petition for

extraordinary relief 21(d)


claims number 6

Retention requirements

for documents 37

Rules, suspension of 2

Rules Advisory Committee 40

Schedule of fees 45(f)

Sealing of record 48

Self-representation 46.1

construction of rules 45(i)

filing by mail, email, or fax 25(a), (b)(1), (b)(2),

(b)(3)

Service

informal brief allowed 28(e)

briefs 31(a)

generally 25

manner 25(c)

Notice of Appeal 3(b)

67

petition for

extraordinary relief 21(a)

proof 25(c)


Record of Proceedings 28.1(a)(3)

Stay of proceedings 5

combination prohibited 5(d)

continuation 5(c)

effect of 5(b)

grounds 5(a)

nonconforming paper 45(j)

Substitution of parties 43

Supplemental authority, citation of 30(b)

Suspension of rules 2

Suspension of Secretarial action or

suspension of precedential

effect of decision

of this Court 8

Termination of case or matter 41(b), 42

Time

additional after service

by mail 26(c)

extension of 26(b)

oral argument, postponement

or additional time 34(d)

computation 26(a)

Time limits for

appeal to this Court 4(a)

appeal to Federal Circuit 36

attorney fee applications 39

briefs 31(a), 47(b)

intervention 15

motion to extend time 26(b)

motion for reconsideration 35(a)

opposition

to extension of time 26(b)(2)


Record of Proceedings 28.1(a)(3)

68

Response to motions,

generally 27(b)

Translation, required 3(h), 21(b)

Voluntary dismissal/termination 42

Website address 1, 3(g)

A

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

NOTICE OF APPEAL

The following named appellant appeals to the Court from a final Board of Veterans' Appeals

(BVA) decision. The Board's decision was dated .

Appellant's printed name VA claims file number

Appellant's telephone number

Appellant's address Signature of person filing this notice

Only if this Notice of Appeal is filed by a representative, check one of the following:

[ ] My Notice of Appearance is attached. [ ] My representation is limited to the filing of this Notice of Appeal, and I aver to the

Court, in accordance with Rule 46(b)(2), that the appellant has been advised, or

alternatively will be advised, of the appellant's responsibility to abide by the Court’s Rules of Practice and Procedure, including the need to timely serve and submit for filing a brief. (Complete items below).

Representative's printed name Representative's phone number

Representative's fax number

Representative's address Representative's email address

INSTRUCTIONS

Send this Notice of Appeal (NOA)

(original only) to:

Clerk,

US Court of Appeals for Veterans

Claims 625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

The NOA will be timely if it is properly

addressed to the Court and bears a

legible postmark affixed by the United

States Postal Service (USPS) within 120

days after the mailing date of the BVA

decision that you are appealing. A

postage-metered date imprint other than

one affixed by USPS does not qualify.

You may send this NOA by facsimile

transmission to (202) 501-5848 or by

means other than US mail. If you do

that, or if you mail the NOA and it does

not bear a legible USPS postmark, the

NOA will be late if it arrives at the Court

after the 120-day time limit. There is a $50 filing fee for an appeal.

Send a check or money order, payable to

"US Court of Appeals for Veterans

Claims," with this NOA. Do not send

cash. To request a waiver of the filing

fee, attach a completed Form 4

(Declaration of Financial Hardship).

Form 1 (Rev. 08/11)

B

[S-A-M-P-L-E]

APPELLANT'S BRIEF

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No. 00-0000

JOHN Q. VETERAN,

Appellant

v.

,

SECRETARY OF VETERANS AFFAIRS,

Appellee

Oliver W. Counsel

Lawyer & Lawyer

1111 J Street, NW

Washington, DC 20000

(202) 555-1212

Attorney for Appellant

Form 2

(Rev 8/11)

C


NOTICE OF APPEARANCE

, OAppellant,

OPetitioner,

v. Docket No. Secretary of Veterans Affairs , Appellee / Respondent.

1. Please enter my appearance for O the appellant or petitioner

O the Secretary O

the intervenor O amicus curiae:

2. I am: O admitted to practice before this Court as: O attorney O non-attorney practitioner

O awaiting admission to practice; my application was submitted on (date) O seeking to appear in this case only, under Rule 46(b)(1)(F); my motion is attached.

3. I am:

O the lead representative of record. I will accept service for the party and will inform

all of the party's co-representatives of matters served upon me. O not the lead representative of record, but am joining as co-representative. O replacing the lead representative of record, who:

O has been permitted or is seeking to withdraw. O remains as co-representative.

4. If I am representing the appellant, petitioner, or intervenor, my representation is:

O pursuant to the attached fee agreement. If the fee agreement provides for direct payment out of past-due benefits under 38 U.S.C. § 5904, a copy has been served

on counsel for the Secretary. If the fee agreement provides for a contingent fee, it also provides for an offset of any fees awarded under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

O without charge to the appellant, petitioner, or intervenor; however it is subject to the attached retainer agreement.

O pursuant to the fee/retainer agreement already on record in this case.

Signature Date

Printed name Veterans Service Org., if R. 46(a)(2)(B) applies

Address

_

Signature and printed name and address of

supervising attorney, if R. 46(a)(2)(A) applies.

Telephone number Email address

Attachments: [ ] Application and motion to appear under Rule 46(b)(1)(F) [ ] Fee agreement [ ] Retainer agreement

Form 3 ( Rev 11-14)


DECLARATION OF FINANCIAL HARDSHIP

Docket No.

, Appellant/Petitioner,

v.

Secretary of Veterans Affairs , Appellee/Respondent.

I am the appellant/petitioner. I declare by my signature below, that

payment of the fifty dollar ($50.00) filing fee required by Rule 3(f) or Rule

21(a) of the Court's Rules of Practice and Procedure would be a financial

hardship for me.

Pursuant to 28 U.S.C. § 1746, I certify, under penalty of perjury under

the laws of the United States of America, that the foregoing is true and

correct.

Signature of Appellant/Petitioner Date

(To be signed by Appellant, NOT Appellant's Representative.)

*******************************************

INSTRUCTIONS

Send this Declaration (original only) to:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

OR Fax (202) 501-5848

Form 4

(Rev. 08/11)

D

SAMPLE FORMAT FOR TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES Brief Page:

Augustine v. Principi, 343 F.3d 1334 (Fed.Cir. 2003) 14

Bucklinger v. Brown, 5 Vet.App. 435 (1993) 3

STATUTES

38 U.S.C. § 5110(a) 7 38 U.S.C. § 5110(b) 8

REGULATIONS

38 C.F.R. § 3.400 8

CITATIONS TO RECORD BEFORE THE AGENCY RBA Page:

R. at 5 (3-17) (Board Decision) 2

R. at 64 (61-67) (Service Medical Records) 2

R. at 90 (81-94) (Service Medical Records) 7

R. at 380 (375-86) (Service Medical Records) 6, 7

R. at 500 (495-518) (Letter from Dr.Joe) 6

R. at 752 (751-52) (Letter from RO) 5, 14

R. at 827 (824-30) (Records from SSA) 6

Form 18

(08/11)

E

E-Rules 1

Case Management/Electronic Case Filing System

(CM/ECF)E-Rules

The following E-Rules govern the submission of

documents through the CM/ECF system in cases before the

U.S. Court of Appeals for Veterans Claims (the Court). These

E-Rules may be amended from time to time, with or without

prior notice, by further order of the Court. The Court may

deviate from these E-Rules in specific cases as deemed

appropriate.

E-Rule 1 - Definitions

(a) For the purposes of these E-Rules:

(1) The term "CM/ECF" means Case

Management/Electronic Case Filing. CM/ECF

is an automated system for case management

and document filing.

(2) The term "electronic signature" refers to an

electronic symbol attached to or associated with

an electronic document and executed or adopted

with the intent to sign the document. The

electronic signature shall be positioned on a

document in the place where a signature would

normally appear. To indicate the authority of

the signatory, the electronic signature will

typically be followed by the typed name and

title of the signatory. The following is an

example of how a document with an electronic

signature will generally appear:

E-Rules 2

Submitted,

/s/ John S. Doe

John S. Doe, Attorney

(3) The term "CM/ECF User" means a

registered CM/ECF participant (party or

representative).

(4) The term "locked" means that an electronic

file will be inaccessible to the public and only

accessible to CM/ECF Users in a particular

case.

(5) The term "log-in" means the password and

username issued to each CM/ECF User.

(6) The term "Notice of Docket Activity" means

an electronic notification generated by the

CM/ECF system that is transmitted by email to

all parties and representatives for that case.

This Notice of Docket Activity constitutes

"notice" and "service" to all CM/ECF Users

who have registered for electronic filing

participation in a particular case.

(7) The term "official record" means the

electronic version of a document that is stored

by the Court within the CM/ECF system, which

is time and date-stamped by CM/ECF when

filed.

(8) The term "password" means a sequence of

characters and letters used to verify the

authenticity of a CM/ECF User's log-in.

E-Rules 3

(9) The term "PDF" means portable document

format. PDF is a universal electronic file format

designed to allow documents to be viewed,

navigated, and printed from any computer.

(10) The term "personal identifier" means a

Social Security number, date of birth, financial

account number, or name of a minor child. It is

each CM/ECF User's responsibility to redact

personal identifiers from any documents filed

electronically that are not designated as locked

documents.

(11) The term "pro bono limited appearance"

refers to participation by a pro bono

representation program for purposes of filing a

motion for stay of proceedings, pursuant to Rule

5 of the Court's Rules of Practice and Procedure.

U.S. VET. APP. R. 5.

(12) The term "single consolidated document"

means the electronic conversion of multiple

documents into one word processing document

that will become the single PDF document.

(13) The term "Non-CM/ECF User" means a

self-represented or other party exempted by the

Court from using the CM/ECF system.

E-Rule 2 - Scope of Electronic Filing

(a) Except as otherwise prescribed, all cases filed in the Court

are assigned to the CM/ECF system. Administrative matters,

including attorney disciplinary actions and judicial complaints,

are not assigned to CM/ECF.

E-Rules 4

(b) Self-represented parties are exempt from submitting

documents through CM/ECF, but may submit any document as

an attachment to an email to the Clerk of Court at

[email protected]. All documents attached to emails

must be in pdf format; have at the top the names of the parties

and the docket number of the case, if one has been assigned;

and bear an electronic signature. Also, the subject line of the

email forwarding the document should include the name of the

document (e.g., Motion to Dispute RBA), the names of the

parties and the docket number of the case, if available. See

Rule 25(b)(3) (Method and Timeliness-Email); E-Rule 1(a)(2)

and (9)(Definitions); and E-Rule 10(Electronic Signatures).

(c) Except for documents initiating cases in the Court (such as

a Notice of Appeal or petition for extraordinary relief), all

submissions filed by a representative must be filed

electronically using CM/ECF. But see (e) below. For documents

initiating a case, in addition to conventional methods of

filing, see U.S. VET. APP. R. 3, 4, 25, such documents may

also be filed by attaching the document to an email sent to

[email protected].

(d) If a document is filed electronically, paper copies are not to

be filed. The Court may request paper copies of electronically

filed documents as needed, and the CM/ECF User must

promptly file the requested copies.

(e) Upon motion and a showing of good cause, the Court may

exempt a representative from these provisions and authorize

filing by means other than use of CM/ECF.

(f) All electronic documents must be filed in pdf format.




E-Rules 5

E-Rule 3 -CM/ECF Eligibility, Registration, Passwords

(a) All representatives before the Court must register as

CM/ECF Users by reviewing the information supplied on the

Court's website www.uscourts.cavc.gov and completing the

appropriate registration form.

(b) A pro bono limited appearance will have CM/ECF User

status commencing at the time a motion for a stay of

proceedings for the purpose of conducting case evaluation is

filed. See U.S. VET. APP. R. 5. Such CM/ECF User status will

cease when any stay granted is lifted.

(c) Completion of the Court's CM/ECF filer registration

constitutes consent to electronic service through CM/ECF of all

documents as provided in these E-Rules and Misc. Order

19-07.

(d) CM/ECF Users agree to protect the security of their

passwords and immediately notify the CM/ECF Help Desk

(202-418-3453) if they learn that their password has been

compromised. CM/ECF Users may be sanctioned for failure to

comply with this provision.

(e) A CM/ECF User who does not have any open cases with

the Court and who desires to become inactive may withdraw

from participation in CM/ECF. Withdrawal is accomplished

by providing the Clerk with written notice (to

[email protected]) of the intent to withdraw. See also

E-Rule 2(e).

E-Rule 4 - Locked Documents, Redaction

(a) All CM/ECF Users must strive to protect personal

identifiers. In order to allow electronic access to documents,


E-Rules 6

but also to protect personal privacy and other legitimate

interests, certain documents in a case will be accessible to the

public using CM/ECF, and certain documents will be locked

and available only to CM/ECF Users in that case.

(b) Once a Notice of Appeal is received by the Court, the Clerk

will docket the appeal, designate the Secretary as the appellee,

and create an electronic record of the Notice of Appeal. See

U.S. VET. APP. R. 4(b). Because the Notice of Appeal will

likely contain personal identifiers, that electronic record will be

locked and accessible through CM/ECF only to CM/ECF Users

in that case.

(c) Once a petition for extraordinary relief is received by the

Court, the Clerk will docket the petition, designate the

Secretary as the respondent, and create an electronic record of

the petition. See U.S. VET. APP. R. 21(a). Because the petition

will likely contain personal identifiers, that electronic record

will be locked and accessible through CM/ECF only to

CM/ECF Users in that case.

(d) When the Secretary files the Board of Veterans' Appeals

decision in a particular case, see U.S. VET. APP. R. 4(c), the

Secretary must file at least two separate documents under

separate docket entries: (1) a reference transmittal identifying

the Board decision with any necessary personal identifiers;

and (2) the Board decision with any personal identifiers

redacted.

(e) The Record of Proceedings that the Secretary must file

pursuant to Rule 28.1 of the Court's Rules of Practice and

Procedure will be locked and available only to CM/ECF Users

in that case. See U.S. VET. APP. R. 28.1.

E-Rules 7

E-Rule 5 - Effects of Filing Through CM/ECF

(a) Electronic filing of a document with the Court consistent

with these E-Rules, and the transmission of a notice of docket

activity from the Court, constitutes filing of the document

under Rules 4 and 25(c)(1) of the Court's Rules of Practice and

Procedure. U.S. VET. APP. R. 4, 25.

(b) The Court will not accept for electronic filing any

document that is not legible, complete, and in PDF format.

When a document has been filed electronically, the official

record is the electronic document stored by the Court, and the

CM/ECF User is bound by the official record.

(c) A document filed electronically is deemed filed at the time

and date stated on the notice of docket activity generated by

CM/ECF. To be timely filed on a specific date, electronic

filing must be completed before midnight Eastern Time, as

shown on the notice of docket activity.

(d) If a CM/ECF-submitted electronic document is not timely

filed because of a power failure or other emergency

circumstance, a CM/ECF User must notify the Court in a

timely manner, explain the reasons for such circumstance, and

seek appropriate relief.

(e) A CM/ECF User who is adversely affected by a technical

failure at the Court in connection with filing or receipt of an

electronic document may seek appropriate relief from the

Court.

E-Rule 6 - Service of CM/ECF Documents

(a) The Court's electronically-generated notice of docket

activity constitutes service of the filed document on all

E-Rules 8

CM/ECF Users in that case. Parties who are not registered

CM/ECF Users or CM/ECF-exempt representatives must be

served conventionally (in accordance with Rule 25(b) and (c)

of the Court's Rules of Practice and Procedure) with a copy of

any document filed electronically. U.S. VET. APP. R. 25.

(b) The Secretary is always considered a CM/ECF User. The

Secretary shall provide to the Court a general email address

where notices of docketing activity may be sent in any case

prior to the entry of an appearance of a specific attorney.

E-Rule 7 - Attachments and Exhibits

Unless the Court permits or requires traditional paper filing,

CM/ECF Users must submit all documents such as exhibits or

attachments as a single consolidated document in electronic

PDF format. If a CM/ECF User submits a PDF document

consisting of more than one attachment or exhibit, then the first

page of the consolidated PDF should be a table of contents

corresponding to the pagination of the PDF file.

E-Rule 8 - Sealed Documents

CM/ECF Users must file sealed material or motions to seal

using CM/ECF and a specific docket entry (SEALED

DOCUMENT FILED). Sealed material must also be filed in

accordance with Rule 48 of the Court's Rules of Practice and

Procedure, which requires filing the material with a motion to

seal. If the motion is granted, electronic access to the sealed

material will be automatically limited to the Court and

CM/ECF Users in that case. See U.S. VET. APP. R. 48.

E-Rules 9

E-Rule 9 - Retention Requirements

(a) Documents that are electronically filed and require an

original signature of a person other than the CM/ECF User

must be maintained in paper form by the CM/ECF User for a

period of one year after issuance of the Court's final mandate in

the case. See U.S. VET. APP. R. 37(c).

(b) On request of the Court, the CM/ECF User must provide

original documents for review. See E-Rule 2(d).

E-Rule 10 - Electronic Signatures

(a) Where a signature is required, the typed underlined name of

the CM/ECF User, under whose log-in and password the

document is submitted, must be preceded by an "/s/" and typed

in the space where the signature would otherwise appear. See

E-Rule 1(a)(2).

(b) CM/ECF Users are responsible for protecting the security

and integrity of a CM/ECF User's log-in and password. No

person may knowingly permit or cause to permit a CM/ECF

User's log-in and password to be used by anyone other than an

authorized agent of the CM/ECF User. See E-Rule 3(e).

(c) Electronically represented signatures are considered valid

signatures. If any individual objects to the representation of his

or her signature on an electronic document, he or she must,

within 10 calendar days of its filing, file a notice setting forth

the basis of the objection.

E-Rule 11 - Notice and Entry of Court-Issued Documents

(a) Upon issuance of a notice, order, memorandum decision,

opinion, entry of judgment, or mandate in a case assigned to

E-Rules 10

CM/ECF, a notice of docket activity is automatically generated

and transmitted to CM/ECF Users in the case. Electronic

transmission of the notice of docket activity constitutes the

notice and service required by Rules 36(b) and 45(c) of the

Court's Rules of Practice and Procedure. U.S. VET. APP. R. 36,

45.

(b) Unless a self-represented party or representative exempted

by the Court from using CM/ECF elects otherwise, the Clerk

will send a copy in paper form of any Court-issued documents

to a party who is a Non CM/ECF User. See U.S. VET. APP. R.

45(c). A Non-CM/ECF User may elect to receive Court-

issued documents via email by submitting written notification

to the Clerk. The written notification may be submitted by

mail, fax (to (202) 501-5848), or email (a self-represented party

should use: [email protected] ; a representative

exempted by the Court from CM/ECF should use:

[email protected]. )

(c) Except as otherwise provided by the Court's Rules of

Practice and Procedure or a Court order, all actions of the

Court relating to cases filed and maintained in the CM/ECF

system will be filed electronically in accordance with these E-

Rules, which will constitute entry on the docket maintained by

the Clerk under Rule 45(b) of the Court's Rules of Practice and

Procedure. U.S. VET. APP. R. 45.

(d) A judicial order or other Court-issued document filed

electronically without the original signature of a Judge or

authorized Court personnel, but that includes an electronic

signature, has the same force and effect as if the Judge or

authorized Court personnel had signed a paper copy of the

order.



E-Rules 11

E-Rule 12 - Technology and Compatibility

All CM/ECF Users must create and maintain an electronic

filing system compatible with the Court's CM/ECF system.

The failure to create and maintain an electronic filing system

compatible with the Court's electronic filing system will not be

accepted as a reason for the failure to timely file any electronic

document. The Court's electronic filing system may be

periodically modified or upgraded, and all CM/ECF Users

must modify or upgrade their electronic filing system to

maintain compatibility. Every effort will be made by the Court

to provide advance notice of system modifications or upgrades

that may impact CM/ECF Users.

E-Rule 13 - Public Access

(a) Except for the cases sealed under Rule 48 of the Court's

Rules of Practice and Procedure, documents filed electronically

are public documents and once filed are not protected by

federal privacy statutes or regulations. Documents filed

electronically are automatically linked to automated docket

entries without prior review by personnel of the Court.

Because of the worldwide access to these electronic records,

this fact should be carefully considered by all parties when

filing documents. See U.S. VET. APP. R. 48.

(b) It is the responsibility of all parties to refrain from and

prevent the filing with the Court of any electronic document

that will not be locked that contains personal identifiers or

information such as medical information otherwise protected

by privacy statutes or regulations or that is deemed personal in

nature and not necessary for the resolution of the matters under

consideration by the Court. Redaction of private information

not necessary for the resolution of the matters before the Court

E-Rules 12

from documents submitted through CM/ECF or by email or fax

is permitted. Parties wishing to challenge such redactions may

do so by filing a motion with the Court within 15 days of the

document's filing. See U.S. VET. APP. R. 6.

Sharp v. Shulkin, 29 Vet.App. 26 (2017)



Bobby R. SHARP, Appellant,v.

David J. SHULKIN, M.D., Secretaryof Veterans Affairs, Appellee.

No. 16–1385|

(Decided September 6, 2017)

SynopsisBackground: Veteran appealed Board of Veterans'Appeals' (BVA) decision denying disability evaluations inexcess of 10% for right and left shoulder, hand, and elbow/forearm disabilities.

[Holding:] The Court of Appeals for Veterans Claims,Bartley, J., held that Department of Veterans Affairs (VA)examination of veteran was inadequate for evaluationpurposes.

Decision set aside; remanded.

West Headnotes (20)

[1] Armed ServicesDecisions reviewable

A remand is not a final decision of the Boardof Veterans' Appeals (BVA) subject to judicialreview. 38 C.F.R. § 20.1100(b).



Armed ServicesRemand

A remand by the Board of Veterans' Appeals(BVA) or Court of Appeals for VeteransClaims confers on the claimant seekingdisability compensation from Department

of Veterans Affairs (VA) a legal rightto substantial compliance with the remandorder.



When a claim for disability compensationfrom Department of Veterans Affairs (VA)is remanded to provide the claimant witha VA medical examination or opinion, theSecretary of Veterans Affairs must ensurethat the examination or opinion provided isadequate.



A Department of Veterans Affairs (VA)medical examination or opinion is adequatewhere it is based upon consideration ofthe veteran's prior medical history andexaminations and describes the disability insufficient detail so that the Board of Veterans'Appeals' (BVA) evaluation of the claimeddisability will be a fully informed one.


[5] Armed ServicesQuestions of fact and findings

The Court of Appeals for Veterans Claimsreviews for clear error the Board ofVeterans' Appeals' (BVA) determinationthat a Department of Veterans Affairs(VA) medical examination or opinion wasadequate.


[6] Armed ServicesQuestions of fact and findings

Board of Veterans' Appeals' (BVA) factualfinding is clearly erroneous when althoughthere is evidence to support it, the reviewingcourt on the entire evidence is left with the

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definite and firm conviction that a mistake hasbeen committed.


[7] Armed ServicesFindings

With any finding on a material issue of factand law presented on the record, Board ofVeterans' Appeals (BVA) must support itsdetermination with an adequate statement ofreasons or bases that enables the claimantseeking disability benefits from Departmentof Veterans Affairs (VA) to understand theprecise basis for that determination andfacilitates review in the Court of Appeals. 38U.S.C.A. § 7104(d)(1).



In its statement of reasons or bases,Board of Veterans' Appeals (BVA) mustanalyze the credibility and probative value ofevidence, account for the persuasiveness ofevidence, and provide reasons for rejectingmaterial evidence favorable to the claimantseeking disability benefits from Departmentof Veterans Affairs (VA). 38 U.S.C.A. §7104(d)(1).


[9] Armed ServicesRating and amount

A veteran seeking disability benefits fromDepartment of Veterans Affairs (VA) forjoint disability may be entitled to a higherdisability evaluation than that supportedby mechanical application of the schedulefor the musculoskeletal system where thereis evidence that his or her disabilitycauses “additional functional loss,” i.e., theinability to perform the normal workingmovements of the body with normalexcursion, strength, speed, coordination, and

endurance, including as due to pain. 38 C.F.R.§§ 4.40, 4.71a.



For a Department of Veterans Affairs(VA) medical examination to complywith regulation authorizing higher disabilityevaluation where there is evidence thatclaimant's disability causes additionalfunctional loss, the VA examiner must expressan opinion on whether pain could significantlylimit functional ability and the examiner'sdetermination in that regard should, iffeasible, be portrayed in terms of the degreeof additional range-of-motion loss due to painon use or during flare-ups. 38 C.F.R. § 4.40.



Flare-ups must be factored into a Departmentof Veterans Affairs (VA) examiner'sassessment of functional loss. 38 C.F.R. § 4.40.



Whether Department of Veterans Affairs(VA) is obliged to attempt to schedule anexamination of claims seeking VA disabilitybenefits during a flare-up depends upon thespecifics of the disability in a particular case.



The frequency, duration, and severity offlare-ups are necessary considerations whendetermining whether Department of VeteransAffairs (VA) must attempt to schedulean examination of a claimant seeking VAdisability benefits during a flare.




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Armed ServicesDetermination

For Board of Veterans' Appeals (BVA) toaccept Department of Veterans Affairs (VA)examiner's statement that he or she couldnot offer an opinion without resorting tospeculation, it must be clear that the examinerhas considered all procurable and assembleddata before stating that an opinion cannotbe reached, and when it is unclear as towhether a VA examiner has done this, theBVA must remand the matter for clarificationor additional development.



For Board of Veterans' Appeals (BVA)to accept Department of Veterans Affairs(VA) examiner's statement that he or shecould not offer an opinion without resortingto speculation, the examiner must explainthe basis for his or her conclusion that anon-speculative opinion cannot be offered;in other words, it must be apparent thatthe inability to provide an opinion withoutresorting to speculation reflects the limitationof knowledge in the medical community atlarge and not a limitation, whether basedon lack of expertise, insufficient information,or unprocured testing, of the individualexaminer.



A Department of Veterans Affairs (VA)examiner stating that he or she cannot offeran opinion without resorting to speculationshould identify when specific facts cannot bedetermined.

Cases that cite this headnote


Department of Veterans Affairs (VA)examination of claimant seeking VA disabilitybenefits for right and left shoulder, hand,and elbow/forearm disabilities was inadequatefor evaluation purposes; VA examinerdid not examine claimant during flare-up,examiner stated that it was not possiblewithout mere speculation to estimate eitherloss of range of motion or describeloss of function during flares becausethere was no conceptual or empiricalbasis for making such a determinationwithout directly observing function underthose circumstances, and examiner didnot ascertain adequate information, i.e.,frequency, duration, characteristics, severity,or functional loss, regarding the claimant'sflares by alternative means or explain why shedid not do so. 38 C.F.R. § 4.40.



The critical question in assessing the adequacyof a Department of Veterans Affairs (VA)examination not conducted during a flare iswhether the VA examiner was sufficientlyinformed of and conveyed any additionalor increased symptoms and limitationsexperienced during flares.



Before concluding that a requested opinioncannot be provided without resorting tospeculation, a Department of Veterans Affairs(VA) examiner must do all that reasonablyshould be done to become informed about acase.


























Remand of Board of Veterans' Appeals(BVA) decision is meant to entail a criticalexamination of the justification for the BVA'sdecision, and must be performed in anexpeditious manner. 38 U.S.C.A. § 7112.


*28 On Appeal from the Board of Veterans' Appeals


Perry A. Pirsch and John S. Berry, both of Lincoln,Nebraska, were on the brief for the appellant.

Meghan K. Flanz, Interim General Counsel; Mary AnnFlynn, Chief Counsel; Thomas E. Sullivan, Deputy ChiefCounsel; and Tamika J. Springs, all of Washington, D.C.,were on the brief for the appellee.

Before PIETSCH, BARTLEY, and GREENBERG,Judges.

Opinion

BARTLEY, Judge:

[1] Veteran Bobby R. Sharp appeals through counsel aMarch 16, 2016, Board of Veterans' Appeals (Board)decision denying disability evaluations in excess of 10%for right and left shoulder, hand, and elbow/forearm

disabilities. Record (R.) at 2–52. 1 This appeal is timelyand the Court *29 has jurisdiction to review the Boarddecision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).This matter was referred to a panel of the Court toclarify the responsibilities of a VA examiner and theBoard when an examiner is asked to provide an opinionas to additional functional loss during flare-ups of amusculoskeletal disability, pursuant to DeLuca v. Brown,8 Vet.App. 202 (1995), and the examiner states that he orshe is unable to offer such an opinion without resortingto speculation based on the fact that the examinationwas not performed during a flare. Because, as explainedbelow, neither the Board nor the VA examiner in this

case complied with the responsibilities set forth in Jones v.Shinseki, 23 Vet.App. 382 (2010), the Court will set asidethe March 2016 Board decision and remand the matterfor additional development and readjudication consistentwith this decision.

I. FACTS

Mr. Sharp served on active duty in the U.S. Army fromMarch 1952 to March 1954, including combat service in

Korea. R. at 3, 1017. 2

In June 2004, he sought service connection for, interalia, “arthritis to include bursitis.” R. at 1308–17. InAugust 2005, the VA regional office (RO) denied serviceconnection for arthritis/bursitis in the right and leftshoulders, hands, and forearms. R. at 1238–48. Theveteran timely disagreed with this decision and the matterswere ultimately appealed to the Board, which denied theclaims in June 2008. R. at 1012–21; see R. at 1031–33,1134–39, 1145–57. The veteran appealed to this Court. R.at 990. In March 2009, the Court granted the parties' jointmotion for remand in which they agreed that the Boardfailed to provide adequate reasons or bases in certainrespects. R. at 968–75. In August 2009, the Board, inturn, remanded the claims for further development. R. at952–58. Mr. Sharp underwent VA joints examinations inMay 2010; the examiner opined that the musculoskeletaldisabilities were at least as likely as not related to service.R. at 298–311, 316–39.

In April 2012, based on the May 2010 opinion, the ROgranted service connection for right and left shoulderarthritis, assigning 10% evaluations for each; the RO alsogranted service connection for right and left hand andelbow/forearm conditions, assigning noncompensableevaluations for each. R. at 228–40, 274–84. Mr. Sharpdisagreed with the evaluations assigned and perfected anappeal to the Board. R. at 214–24.

In November 2014, the Board remanded the claims forthe provision of another VA examination. R. at 177–83.The Board instructed the examiner to “conduct range ofmotion testing and render specific findings as to whether,during the examination, there is objective evidence ofpain on motion, weakness, excess fatigability, and/orincoordination associated with the service[-]connectedbilateral shoulder, ... hand, and elbow disabilities,” as




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well as “indicate the point at which pain begins” and“whether, and to what extent, the [v]eteran experienceslikely functional loss due to pain and/or any of theother symptoms noted above during flare-ups and/or withrepeated use.” R. at 181; see also R. at 164 (VA's requestthat the examiner provide the information sought “iffeasible” *30 and, if not feasible, “an explanation as towhy the opinion cannot be rendered”).

Mr. Sharp underwent the ordered examinations inSeptember 2015. The examiner diagnosed bilateralshoulder arthritis and bursitis, bilateral elbow olecranonspurs, and bilateral hand degenerative arthritis; withrespect to each disability, the examiner measured rangeof motion and noted any limitations thereof, both oninitial and repetitive testing, and assessed other factorspotentially resulting in functional loss, such as weakness,instability, or the presence of pain. See generally R. at 121–51. With respect to each disability, the examiner noted theveteran's reports of experiencing periodic flares, indicatedthat the examination was not taking place during a flare-up, and recorded functional impairment articulated bythe veteran during those periods. With respect to theshoulders, the veteran reported additional functional lossduring flare periods in terms of increased pain and lackof endurance and asserted that flares were precipitated by“driving the mower” and lifting. R. at 122–23. Similarly,Mr. Sharp stated that he experienced “constant aching”pain of 10 out of 10 during elbow/forearm flares, R.at 134, and severe, aching pain, moderate weaknessin grip strength, lack of endurance, and mild decreasein fine motor skills during hand joint flares, R. at142–43. As relevant to the present appeal, regardingall joint disabilities, the examiner indicated that theexaminations were either medically consistent, or neithermedically consistent nor inconsistent, with the veteran'sdescriptions of functional loss during flare-up periods, butthe examiner further stated: “It is not possible withoutmere speculation to estimate either loss of [range ofmotion] or describe loss of function during flares becausethere is no conceptual or empirical basis for making such adetermination without directly observing function underthese circumstances.” R. at 125–27 (shoulders), 136–37(elbows/forearms), 146–48 (hands).

In September 2015, the RO granted 10% evaluations,but no higher, for right and left elbow/forearm andhand disabilities effective September 8, 2015; however,it continued to deny compensable evaluations for these

disabilities prior to that date and to deny evaluations inexcess of 10% for right and left shoulder disabilities. R. at91–120. Because the RO decision resulted in less than atotal grant of the benefits sought, the matters returned tothe Board. R. at 68.

In the March 2016 decision on appeal, the Board granted10% evaluations for right and left elbow/forearm andhand disabilities prior to September 8, 2015, but deniedevaluations in excess of 10% for these and right and leftshoulder disabilities for any period during the pendencyof the claims. The Board found that VA substantiallycomplied with its November 2014 remand instructionsand that the medical evidence of record, includingthe September 2015 VA examination and opinion, wasadequate for evaluation purposes. R. at 9–10. TheBoard addressed the September 2015 examiner's physicalfindings, acknowledged his statements that he couldnot offer the opinions requested in the November 2014remand instructions without resorting to speculation, andconcluded that the examiner's reasons constituted “anadequate explanation for not being able to comment onadditional [functional] loss during ... flare-ups.” R. at 22;accord R. at 29, 37. This appeal followed.

II. ANALYSIS

Mr. Sharp argues that the Board clearly erred inaccepting the September 2015 examination as adequate,clearly erred in finding substantial compliance withthe November 2014 remand instructions, and *31offered inadequate reasons or bases to support itsdeterminations to the contrary; the veteran's argumentsare all predicated on a single assertion, namely, thatthe Board's November 2014 remand order required theSeptember 2015 examiner, pursuant to DeLuca and itsprogeny, to offer an estimate as to additional functionalloss during flares regardless of whether the veteran wasundergoing a flare-up at the time of the examinationand that the examiner failed to do so. Appellant's Brief(Br.) at 3–14; Reply Br. at 1–4. The Secretary disputesthese contentions, arguing that, under Jones, the examinerwas permitted to decline to offer an opinion on thegrounds that doing so would require resort to speculation.Secretary's Br. at 10–17.

[2] [3] [4] [5] [6] A remand by the Board or Courtconfers on the claimant a legal right to substantial



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compliance with the remand order. Donnellan v. Shinseki,24 Vet.App. 167, 176 (2010); Dyment v. West, 13 Vet.App.141, 147 (1999); Stegall v. West, 11 Vet.App. 268, 271(1998). When a claim is remanded to provide the claimantwith a VA medical examination or opinion, the Secretarymust ensure that the examination or opinion providedis adequate. Barr v. Nicholson, 21 Vet.App. 303, 311(2007). A VA medical examination or opinion is adequate“where it is based upon consideration of the veteran'sprior medical history and examinations” and “describesthe disability ... in sufficient detail so that the Board's‘evaluation of the claimed disability will be a fullyinformed one.’ ” Stefl v. Nicholson, 21 Vet.App. 120, 123(2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407(1994)). The Court reviews for clear error the Board'sdetermination that a medical examination or opinion wasadequate. D'Aries v. Peake, 22 Vet.App. 97, 104 (2008).“A factual finding ‘is “clearly erroneous” when althoughthere is evidence to support it, the reviewing court on theentire evidence is left with the definite and firm convictionthat a mistake has been committed.’ ” Hersey v. Derwinski,2 Vet.App. 91, 94 (1992) (quoting United States v. U.S.Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746(1948)).

[7] [8] With any finding on a material issue of fact andlaw presented on the record, the Board must support itsdetermination with an adequate statement of reasons orbases that enables the claimant to understand the precisebasis for that determination and facilitates review in thisCourt. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.517, 527 (1995). In its statement of reasons or bases, theBoard must analyze the credibility and probative value ofevidence, account for the persuasiveness of evidence, andprovide reasons for rejecting material evidence favorableto the claimant. Caluza v. Brown, 7 Vet.App. 498, 506(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table).

A. Governing Law and Practice

Addressing the adequacy of the VA medical examinationand opinion and the propriety of the Board's analysisin this case requires the Court to review two relatedissues: the duties of a VA examiner when assessing amusculoskeletal disability and the circumstances in whichthe Board may accept as adequate a VA examiner's

statement that an opinion cannot be provided withoutresorting to speculation.

[9] [10] [11] First, joint disabilities are evaluated inlight of criteria found in applicable diagnostic codesin the rating schedule for the musculoskeletal system.See generally 38 C.F.R. § 4.71a (2017). A veteran may,however, be entitled to a higher disability evaluationthan that supported by mechanical application of theschedule where there is evidence that his or her disabilitycauses additional functional loss—i.e., “the inability ... toperform the *32 normal working movements of the bodywith normal excursion, strength, speed, coordination[,]and endurance”—including as due to pain. 38 C.F.R. §4.40 (2017). A higher evaluation may also be awardedwhere there is a reduction of a joint's normal excursionof movement in different planes, including changes inthe joint's range of movement, strength, fatigability,or coordination. 38 C.F.R. § 4.45 (2017). The Courtexplained in DeLuca that a VA joints examination thatfails to consider the factors listed in §§ 4.40 and 4.45 isinadequate for evaluation purposes. 8 Vet.App.at 206–07.Specifically, for an examination to comply with § 4.40, theexaminer must “express an opinion on whether pain couldsignificantly limit functional ability” and the examiner'sdetermination in that regard “should, if feasible, beportrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id.at 206 (emphasis added) (internal quotation marks andalteration omitted); see Mitchell v. Shinseki, 25 Vet.App.32, 44 (2011) (summarizing DeLuca and concluding thatan examination was inadequate because it “did not discusswhether any functional loss was attributable to painduring flare-ups, despite noting the appellant's assertions[thereof]”). Flare-ups, in other words, must be factoredinto an examiner's assessment of functional loss.

DeLuca 's requirements are reflected in the VA Clinician'sGuide, which “provides information for performingexaminations that meet the requirements of federallaw” and “explains the law in clinical terms.” VACLINICIAN'S GUIDE § 0.1 (March 2002). Whenconducting evaluations for musculoskeletal disabilities,examiners are instructed to inquire whether there areperiods of flare and, if the answer is yes, to state theirseverity, frequency, and duration; name the precipitatingand alleviating factors; and estimate, “per [the] veteran,”to what extent, if any, they affect functional impairment.See generally id., ch. 11. These instructions appear in

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worksheets pertaining to musculoskeletal examinations ofthe spine, shoulders, elbows, wrists, hips, knees, ankles,feet, and hands, as well as muscles.

[12] [13] Whether VA is obliged to attempt to schedulean examination during a flare-up depends upon thespecifics of the disability in a particular case. Forexample, in Ardison, the veteran alleged that his chronicskin condition would periodically worsen during “activestages” and spread to other parts of his body. 6 Vet.App.at 408–09. Because Mr. Ardison's flares could last forweeks at a time, the Court remanded the claim andinstructed the Board to “provide for the conduct of anadequate examination during the active stage” of hiscondition. Id. at 408. Relying on Ardison, the veteranin Voerth v. West argued that he was entitled to a VAexamination during a period when his pilonidal cystwas enflamed. 13 Vet.App. 117, 122 (1999). The Courtrejected this contention based in part on the fact thatthe skin condition in Ardison would undergo periods ofinflammation lasting “weeks or months,” whereas Mr.Voerth's cyst flares “would only last a day or two.”Id. at 123. The Court recognized that “the practicalaspects of scheduling a medical examination within thisshort time period” of flares lasting a day or two wouldbe unworkable. Id. Thus, the frequency, duration, andseverity of flares are necessary considerations whendetermining whether VA must attempt to schedule anexamination during a flare.

Last, the Court has recognized circumstances in whichan examiner's conclusion that an “opinion is not possiblewithout resort to speculation is a medical conclusion justas much as a firm diagnosis or a *33 conclusive [medical]opinion.” Jones, 23 Vet.App. at 390. In Jones, VAexaminers stated that they could not opine as to etiologiesof various disabilities without resorting to speculation.Id. at 385. Although recognizing that obtaining medicalopinions is part of VA's duty to assist, the Court rejectedthe veteran's assertions that an examination is necessarilyinadequate every time an examiner states that a non-speculative decision cannot be reached or that VA must“proceed through multiple iterations of medical opinionsuntil it declares that no further examinations would assistthe claimant.” Id. at 391.

[14] [15] [16] Nevertheless, to ensure that the phrasedid “not become a mantra that short circuits the carefulconsideration to which each ... case is entitled,” id. at

389, the Court carefully explained when the Board couldtreat as adequate an examiner's statement that he orshe could not offer an opinion without resorting tospeculation. First, it must be clear that an examiner has“considered all procurable and assembled data” beforestating that an opinion cannot be reached. Id. at 390(internal quotation marks omitted). When the record isunclear as to whether a VA examiner has done this—forexample, “by obtaining all tests and records that mightreasonably illuminate the medical analysis”—the Boardmust remand the matter for clarification or additionaldevelopment. Id. Second, the examiner must explain thebasis for his or her conclusion that a non-speculativeopinion cannot be offered. Id. In other words, it mustbe apparent that the inability to provide an opinionwithout resorting to speculation “reflect[s] the limitationof knowledge in the medical community at large” andnot a limitation—whether based on lack of expertise,insufficient information, or unprocured testing—of theindividual examiner. Id. As part of this obligation, a VAexaminer should identify when specific facts cannot bedetermined. Id. Jones, therefore, permits the Board toaccept a VA examiner's statement that he or she cannotoffer an opinion without resorting to speculation, but onlyafter determining that this is not based on the absenceof procurable information or on a particular examiner'sshortcomings or general aversion to offering an opinionon issues not directly observed.

B. Application to the Present Case

[17] Applying these principles to the present case,the Court holds that the Board failed to provideadequate reasons or bases for its determination thatthe September 2015 VA examinations were adequate forevaluation purposes and, hence, did not ensure substantialcompliance with its November 2014 remand instructions.

Initially, Mr. Sharp asserts that, to be adequate, a medicalexamination must occur during a flare to ensure a properdisability evaluation. Appellant's Br. at 4 (citing Ardison,6 Vet.App. at 408). But, as discussed above, Ardisondid not establish such a rule. See Voerth, 13 Vet.App.at 122–23 (concluding, notwithstanding Ardison, thatthe Board did not clearly err in finding a VA medicalexamination adequate even though it was not conductedduring a flare-up). Rather, the lesson of Ardison andVoerth is that once VA determines that an examination

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is warranted, its obligation to schedule that examinationduring a flare is contingent upon the frequency andduration of flares in a specific case. Of course, VAoften may not be in possession of this information whenundertaking to provide and schedule an examination. Andeven when such information is eventually acquired, theimpracticalities alluded to in Voerth still obtain. Where acondition's flares are irregular, unpredictable, infrequent,or brief, it is unclear how VA would schedule a flare-coincident examination *34 as a practical matter, givenits resources and duty to provide timely examinations aspart of innumerable claims.

The record in the present case does not indicate thefrequency or duration of flares or what precipitates them,other than the September 2015 examiner's notation of Mr.Sharp's report that “driving the mower” and lifting bringon shoulder flares. R. at 122. Thus, there is no basis forthe Court to conclude that the Board erred in not deemingthe September 2015 examination inadequate solely on thebasis that it was not conducted during a flare of Mr.Sharp's shoulder, elbow/forearm, and hand disabilities.

Fortunately, neither the law nor VA practice requiresthat an examination be conducted during a flare forthe functional impairment caused by flares to be takeninto account. Instead, DeLuca and its progeny clearly,albeit implicitly, anticipated that examiners would need toestimate the functional loss that would occur during flares,as is evident from the fact that Mr. DeLuca's left shoulderdisorder flared only “at times.” 8 Vet.App. at 204; see, e.g.,Mitchell, 25 Vet.App. at 44 (finding inadequate a medicalopinion where an examiner did not offer an opinion as toadditional function loss during flares “despite noting theappellant's assertions” regarding the frequency, duration,and severity of those flares); cf. Petitti v. McDonald, 27Vet.App. 415, 429–30 (2015) (holding that credible layevidence of functional loss due to pain, including duringflare periods, observed outside of the VA examinationcontext could constitute objective evidence in support ofan evaluation).

[18] The critical question in assessing the adequacy ofan examination not conducted during a flare is whetherthe examiner was sufficiently informed of and conveyedany additional or increased symptoms and limitationsexperienced during flares. See Mitchell, 25 Vet.App. at44. Moreover, because the September 2015 VA examinerdeclined to offer an opinion as to additional function

loss during flares “without directly observing functionunder these circumstances,” R. at 125, her position is atodds with VA's guidance on the matter. As noted above,the VA Clinician's Guide makes explicit what DeLucaclearly implied: it instructs examiners when evaluatingcertain musculoskeletal conditions to obtain informationabout the severity, frequency, duration, precipitating andalleviating factors, and extent of functional impairment of

flares from the veterans themselves. 3 See generally VACLINICIAN'S GUIDE, ch. 11.

Mr. Sharp is, therefore, correct when he argues that theSeptember 2015 examination was inadequate because theexaminer, although acknowledging that the veteran wasnot then suffering from a flare of any of his conditions,failed to ascertain adequate information—i.e., frequency,duration, characteristics, severity, or functional loss—regarding his flares by alternative *35 means. Appellant'sBr. at 8. Because the VA examiner did not elicit relevantinformation as to the veteran's flares or ask him to describethe additional functional loss, if any, he suffered duringflares and then estimate the veteran's functional loss dueto flares based on all the evidence of record—including theveteran's lay information—or explain why she could notdo so, the September 2015 examination was inadequatefor evaluation purposes and the Board's finding to the

contrary was clearly erroneous. 4 See D'Aries, 22 Vet.App.at 104; Stefl, 21 Vet.App. at 123; see also Mitchell, 25Vet.App. at 44; DeLuca, 8 Vet.App.at 206–07.

The Secretary interposes that the September 2015examination was not inadequate because, consistent withJones, the VA examiner explained why it was not feasiblefor her to provide an opinion on functional loss due toflares. Secretary's Br. at 12. The examiner stated: “It isnot possible without mere speculation to estimate eitherloss of [range of motion] or describe loss of functionduring flares because there is no conceptual or empiricalbasis for making such a determination without directlyobserving function under these circumstances.” R. at 125–27, 136–37, 146–48. The Board determined that this was“an adequate explanation for not being able to commenton additional [functional] loss during ... flare-ups.” R.at 22; accord R. at 29, 37. According to the Secretary,the statement by the examiner and the reasons profferedby the Board satisfied the requirements of Jones. Wedisagree.




















As just explained, the Court's case law and VA guidelinesanticipate that examiners will offer flare opinionsbased on estimates derived from information procuredfrom relevant sources, including the lay statements ofveterans. Although the September 2015 VA examinercouched her refusal to offer an opinion regarding flaresin broad terms, stating there is “no conceptual orempirical basis for making such a determination withoutdirectly observing function under these circumstances,”e.g., R. at 125–27, the apparent universality of thisstatement is contradicted by VA's Clinician's Guide,which specifically advises examiners to try to procureinformation necessary to render an opinion regardingflares from veterans. Aside from acknowledging the realitythat, because of administrative constraints, examinersmay not be examining veterans during flares, this guidanceis a recognition that direct observation of functionalimpairment during a flare-up is not a prerequisite tooffering an opinion.

[19] Jones is not to the contrary. Although we observedthere that, in certain circumstances “it would beinappropriate for VA to demand a conclusive opinionfrom a physician” who represented that he or shecould not provide one, we clearly noted that suchrepresentation could be made only after “evaluation of the‘procurable and assembled’ information.” 23 Vet.App. at390 (quoting 38 C.F.R. § 3.102). Before concluding thata requested opinion cannot be provided without resortingto speculation, an examiner must “do[ ] all that reasonablyshould be done to become informed about a case.” Id. at391. When *36 the record is ambiguous as to whethersufficient information was obtained, “it is the Board's dutyto remand for further development.” Id. at 390. Here,however, the September 2015 VA examiner did not elicitinformation from Mr. Sharp regarding his flares' severity,frequency, duration, or functional loss manifestations,nor did she indicate whether such information could begleaned from medical records or other sources available toher. Moreover, before the Board can accept an examiner'sstatement that an opinion cannot be provided withoutresort to speculation, it must be clear that this is predicatedon a lack of knowledge among the “medical communityat large” and not the insufficient knowledge of the specificexaminer. Id.

Curiously, the Secretary contends that Mr. Sharp's reportsof pain and loss of endurance during flares “do not lendthemselves to approximating degrees of functional loss”

and “are not consistent with trying to approximate degreesof functional loss.” Secretary's Br. at 14. If he is arguingthat the record does not currently contain sufficient detailto permit the September 2015 examiner to offer an opinionas to functional loss during flares, if any, in terms ofadditional range of motion loss, the Court agrees, with thecaveat that the examiner herself was responsible for failingto elicit such information. However, to the extent thatthe Secretary is asserting that a veteran's statements cannever provide an adequate basis on which to formulate anopinion regarding additional functional loss during flares,that assertion is inconsistent with this Court's case law and

VA's own practice as set forth in VA's Clinician's Guide. 5

Although the September 2015 examiner cannot becompelled to provide an opinion where, consistent withthe duties discussed above, she cannot do so withoutresorting to mere speculation and explains the basis forthis inability as per Jones, see 23 Vet.App. at 390, that doesnot relieve the Board from the obligation to determinewhether the examiner's inability results from a personallack of knowledge or experience and, if so, to attempt toobtain an opinion from a more qualified examiner. Seeid. at 390–91. In the present circumstances, there is noindication in the Board decision that the September 2015VA examiner obtained all “procurable medical evidence”before declining to offer an opinion as to flares. Nor,in light of VA's guidance to its clinicians, did the Boardsufficiently address whether the examiner's professed needto observe the veteran during flares of his conditionsreflected something other than her individual inability toprovide the requested opinion. As such, the Court cannotconclude that the Board complied with Jones in acceptingthe September 2015 VA examination as adequate.

[20] Because the record was not adequate to permit theBoard to decide Mr. Sharp's claims for evaluations inexcess of 10% for right and left shoulder, hand, and elbow/forearm disabilities, the Court will set aside the March2016 decision and remand the matter. See Tucker v. West,11 Vet.App. 369, 374 (1998) (explaining that remandis required where, inter alia, “the record is otherwiseinadequate”); see also Jones, 23 Vet.App. at 393–94. TheBoard must obtain a new VA medical examination andopinion that adequately addresses additional functionalloss, if any, experienced during flares and substantiallycomplies with the Board's November 2014 remandorder. Mr. Sharp is free to present any *37 additionalarguments and evidence to the Board on remand in

















accordance with Kutscherousky v. West, 12 Vet.App. 369,372–73 (1999) (per curiam order). See Kay v. Principi, 16Vet.App. 529, 534 (2002). The Court reminds the Boardthat “[a] remand is meant to entail a critical examinationof the justification for [the Board's] decision,” Fletcherv. Derwinski, 1 Vet.App. 394, 397 (1991), and must beperformed in an expeditious manner in accordance with38 U.S.C. § 7112.

III. CONCLUSION

Upon consideration of the foregoing, the Court willSET ASIDE the portions of the March 16, 2016, Boarddecision denying evaluations in excess of 10% for right andleft shoulder, hand, and elbow/forearm disabilities andREMAND those matters for additional development andreadjudication consistent with this decision. The balanceof the appeal is DISMISSED.

All Citations

29 Vet.App. 26

Footnotes1 The Board remanded the issue of entitlement to a total disability evaluation based on individual unemployability. R. at 48–

52. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdictionto consider that issue at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2017). The Board also denied initial evaluationsin excess of 10% for right and left wrist disabilities. Because Mr. Sharp has not challenged these portions of the Boarddecision, the appeal as to those matters will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281–86 (2015)(en banc) (declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal);Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same). Last, the Board granted initial 10% evaluations for right and leftelbow/forearm and hand disabilities prior to September 8, 2015. R. at 48. As these findings are favorable to the veteran,the Court will not disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted toreverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.”).

2 The page in the record before the agency cited by the parties at which the veteran's DD Form 214 appears (page 173)is not included in the record of proceedings filed with the Court.

3 The Court acknowledges that the VA Clinician's Guide is not binding on VA examiners. VA CLINICIAN'S GUIDE § 1.1(“The Clinician's Guide and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not legallybinding on a clinician to perform all portions of the examination protocol.”); see Camacho v. Nicholson, 21 Vet.App.360, 364 (2007) (“The VA Clinician's Guide ... is a guide to VA doctors providing generalized direction for the properconduct of disability examinations.”); Allin v. Brown, 6 Vet.App. 207, 214 (1994) (holding that the VA Physician's Guidefor Disability Evaluation Examinations is not mandated by either statute or regulation, does not appear in the statutesor regulations governing disability evaluation examinations, and is not a document that is binding upon VA); see alsoDoucette v. Shulkin, 28 Vet.App. 366, 374 (2017) (Schoelen, J., dissenting).

4 Inasmuch as Mr. Sharp argued that the Board did not ensure that an adequate VA examination addressing flare wasobtained, the Court also agrees that the Board failed to ensure substantial compliance with its November 2014 remandinstructions. See Donnellan, 24 Vet.App. at 176 (concluding that the Board did not ensure substantial compliance with aprior remand order where the examiner failed to answer a specific question regarding aggravation posed by the Board);Stegall, 11 Vet.App. at 271 (remanding where “the record reveal[ed] that the VA medical examination did not comply withthe directions found in the [Board] remand order”).

5 This is not to say that an examiner or the Board is required to accept a veteran's allegations regarding his or her flare-ups if such allegations are inconsistent with other reliable evidence.








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Colvin v. Derwinski, 1 Vet.App. 171 (1991)


KeyCite Red Flag - Severe Negative Treatment

Overruled by Hodge v. West, Fed.Cir., September 16, 1998

1 Vet.App. 171United States Court of Veterans Appeals.

William M. COLVIN, Appellant,v.

Edward J. DERWINSKI, Secretaryof Veterans Affairs, Appellee.

No. 90–196.|

Argued Dec. 10, 1990.|

Decided March 8, 1991.

SynopsisBoard of Veterans' Appeals determined that veteran hadnot submitted evidence that was both new and materialwith his request to reopen his claim that he had incurredmultiple sclerosis during service. The Court of VeteransAppeals, Holdaway, J., held that: (1) evidence submittedwas new and material, and (2) Board was required toconsider only independent medical evidence to supportfindings rather than provide their own medical judgmentin guise of Board opinion.

Reversed and remanded.

West Headnotes (10)

[1] Armed ServicesService connection

Service connection may be granted fordisability resulting from disease or injuryincurred or aggravated in service. 38 U.S.C.A.§ 310.


[2] Armed ServicesService connection

In determining whether multiple sclerosis wasincurred in or aggravated by service of morethan 90 days during war, veteran is given

benefit of presumption that if he developsmultiple sclerosis to degree of 10% withinseven years from date of separation fromservice, such disease may be presumed to havebeen incurred in or aggravated by service, eventhough there is no evidence of such diseaseduring period of service; presumption isrebutted by affirmative evidence to contrary.38 U.S.C.A. §§ 312(a)(4), 313.


[3] Armed ServicesScope of Review

Finding by Board of Veterans' Affairs (BVA)that veteran's evidence was not materialis question of law entitled to no judicialdeference by Court of Veterans' Appeals. 38U.S.C.A. § 4061.


[4] Armed ServicesNew and material evidence in general

For purposes of statute permitting reopeningof claim for service connection if newand material evidence has been presented,“new evidence” is not that which is merelycumulative of other evidence on record and“material evidence” is relevant and probativeof issue at hand. 38 U.S.C.A. § 3008.



Not every piece of new evidence, even ifrelevant and probative, will justify reopeningof claim for service connection becausesome evidence is of limited weight and thusinsufficient to justify new hearing.



In order to justify reopening of claim forservice relation of element on basis of new and

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material evidence, there must be reasonablepossibility that new evidence presented byveteran, when viewed in content of allevidence, both new and old, would changeoutcome.



“Benefit of the doubt” standard applicable tofact finder in veteran's benefits jurisprudencenecessarily lowers threshold of whether newand material evidence is sufficient to changeoutcome. 38 U.S.C.A. § 3007(b).


[8] Armed ServicesParticular cases

Evidence submitted by veteran to reopenclaim that he had incurred multiple sclerosisduring service was both new and materialand thus Board of Veterans' Appeals (BVA)was required to consider new evidencein context of other evidence to reviewformer denial of service connection; newevidence submitted consisted of opinions fromtwo qualified expert witnesses that veteran'smultiple sclerosis was service connected basedupon possible symptoms of multiple sclerosisthat occurred within seven-year presumptiveperiod.


[9] Armed ServicesHearing

Panels of the Board of Veterans' Appeals(BVA) may consider only independentmedical evidence to support their findings; ifmedical evidence of record is insufficient, or,in opinion of Board, of doubtful weight orcredibility, Board is free to supplement recordby seeking advisory opinion, ordering medicalexamination or citing recognized medicaltreatises in its decisions that clearly support itsultimate conclusions. 38 U.S.C.A. § 4009.



Where Board of Veterans' Appeals (BVA)declined to accept expert opinions thatveteran's multiple sclerosis was serviceconnected, it was necessary for Board to stateits reasons for doing so and to point to medicalbasis other than Board's own unsubstantiatedopinion which supported decision.



*172 Mark J. DeFrancisco, Boston, Mass., for appellant.

Joan E. Moriarity, with whom Raoul L. Carroll, Gen.Counsel, Barry M. Tapp, Asst. Gen. Counsel, and PamelaL. Wood, Deputy Asst. Gen. Counsel, were on the brief,Washington, D.C., for appellee.

Before KRAMER, MANKIN and HOLDAWAY,Associate Judges.

Opinion

HOLDAWAY, Associate Judge:

This case concerns an appeal of a Board of Veterans'Appeals (BVA) decision that the veteran had notsubmitted evidence that was both new and material withhis request to reopen his claim that he had incurredmultiple sclerosis during service. We hold that theevidence submitted was new and material and provides abasis for reopening the claim to consider the new evidencein the context of the other evidence in order to reviewthe former disposition. Further, we hold that the BVApanels must consider only independent medical evidenceto support their findings rather than provide their ownmedical judgment in the guise of a Board opinion. Wewill remand to the BVA for proper consideration of allrelevant evidence, issues, and regulations in a mannerconsistent with this opinion.

The law provides that when new and material evidenceis presented or secured with respect to a claim which
























has been disallowed, “the [Secretary of Veterans Affairs]shall reopen the claim and review the former disposition.”38 U.S.C. § 3008 (1988). This review requires a two-step analysis. “First, the BVA must determine whetherthe evidence is ‘new and material’. Second, if the BVAdetermines that the claimant has produced new andmaterial evidence, the case is reopened and the BVA mustevaluate the merits of the veteran's claim in light of allthe evidence, both new and old.” Manio v. Derwinski, 1Vet.App. 140, 145 (1991) (emphasis in the original). Seealso 38 C.F.R. § 19.194 (1990).

[1] [2] Service connection may be granted for a disabilityresulting from disease or injury incurred or aggravated inservice. 38 U.S.C. § 310 (1988). In determining whethermultiple sclerosis was incurred in or aggravated by serviceof more than ninety days during war, the veteran isgiven the benefit of a presumption that if he developsmultiple sclerosis to a degree of ten percent within sevenyears from the date of separation from service, suchdisease may be presumed to have been incurred in oraggravated by service, even though there is no evidenceof such disease during the period of service. 38 U.S.C.§ 312(a)(4) (1988). This presumption is rebuttable *173by affirmative evidence to the contrary. 38 U.S.C. § 313(1988).

The veteran served from March 21, 1966, throughFebruary 2, 1968. During his service in the Republic ofVietnam, he was wounded three separate times: shrapnelwounds to the head and right arm on February 26, 1967;shrapnel wounds to the right leg on March 26, 1967;and shrapnel wounds to the left forearm on May 10,1967. On April 27, 1967, he was treated for a urinaryproblem that was diagnosed as a kidney stone. Medicalevidence in the record indicates that urinary problemsare a possible precursor of multiple sclerosis. The veteranwas also treated during service for an injury to his rightknee caused when it was hit by a forklift in September orOctober of 1966.

Lay testimony from the veteran's mother and ex-wife wassubmitted that he complained of blurring eyesight andnumbness in his right leg and foot within two years ofhis discharge. Such symptoms are also possible precursorsof multiple sclerosis according to medical evidence in therecord. In 1982, the veteran was diagnosed as havingdeveloped multiple sclerosis. It is for that condition thathe now claims service connection.

The first BVA decision in this case was issued onDecember 10, 1986. The evidence considered at thattime was the service medical records, a March 22, 1973,Veterans Administration (now Department of VeteransAffairs) (VA) medical exam showing “joint mice” in theveteran's right knee (for which service connection wasgranted), private hospital records showing urinary tractproblems, several statements from the veteran's privatephysician relating to the diagnosis of multiple sclerosis bythat physician in 1985, the aforementioned letters fromthe veteran's mother about numbness in his right leg andblurriness in his eyesight during the two years followinghis discharge, and from the veteran's ex-wife relating anincident of numbness in the veteran's right foot and leg in1972. The Board determined that no acceptable medicalor lay evidence showed the characteristic manifestationsof multiple sclerosis in the veteran during his active dutyor within the seven-year presumptive period. William M.Colvin, loc. no. 637232 (BVA Dec. 10, 1986). The 1986BVA decision was final as there was no judicial reviewavailable at that time.

The veteran was examined at a VA facility in March 1987for purposes of determining inter alia compensation forthe veteran's knee disability. As a part of that exam, theveteran was examined by Dr. Kassirer, a Department ofVeterans Affairs neurologist. She stated in her report that“[t]he patient's multiple sclerosis began in the infantrywhile he was in Vietnam.” The rating decision issuedon June 8, 1987, again denied service connection for themultiple sclerosis. No appeal was taken to the BVA on thisdecision.

On August 11, 1988, the veteran submitted a requestto reopen his claim on the basis of new and materialevidence and attached a letter written by Dr. Cohen. Theletter stated that Dr. Cohen had reviewed the veteran'smedical records, including the service medical records,and that Dr. Cohen “[felt] the [veteran's] Multiple Sclerosisshould be considered as service connected.” Dr. Cohenalso said, “I believe that there is also a general beliefamong physicians that stress in the military service canactually be a precipitating cause of the [multiple sclerosis];there is not unanimous agreement on this point.”

The second BVA decision was issued on December 18,1989. The BVA considered statements made by theveteran at an appeal hearing, Dr. Cohen's letter, 1985


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medical records, and a VA medical examination whichrevealed a diagnosis of multiple sclerosis. (It is unclearfrom the record whether the “diagnosis” referred to wasfrom Dr. Kassirer's report of a neurological examinationor from the Report of Medical Examination for DisabilityEvaluation) The finding of the Board was that “thisevidence, while new, does not pertain to definitive clinicalfindings and does not provide a new factual basis so asto permit the grant of service connection for multiplesclerosis.” William M. Colvin, loc. no. 934615, at 5 (BVADec. 18, 1989). We take *174 this to mean that the BVAdid not find the evidence material.

I.

The interpretation of a statute is a matter of law. When astatute uses a broad term such as [new and material], it isnecessary that the administrative body and the court, asjoint instrumentalities of government, fill in the factorswhich govern the proper determination of the questionpresented. In the first instance the administrative body,presumably expert in this field, must decide what arethe relevant factors or standards. This determination isnot conclusive on the courts because it is a decision ona question of law.Louisville and Kentucky R.R. v. Kentucky RailroadCommission, 314 S.W.2d 940, 942 (Ky.Ct.App.1958).

[3] The BVA's finding in this case that the veteran'sevidence was not material was a conclusion of law.Conclusions of law by the BVA are entitled to no judicialdeference by this Court. 38 U.S.C. § 4061 (1988).

[4] [5] [6] New evidence is not that which is merelycumulative of other evidence on the record. Williamsv. Sullivan, 905 F.2d 214, 216 (8th Cir.1990). Materialevidence is relevant and probative of the issue at hand.Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.1981).However, not every piece of new evidence, even if relevantand probative, will justify a reopening because someevidence is of limited weight and thus is insufficientto justify a new hearing. Id. The “bright line” rule inother federal courts is that to justify a reopening onthe basis of new and material evidence, there must be areasonable possibility that the new evidence, when viewedin the context of all the evidence, both new and old,would change the outcome. See Chisholm v. Secretaryof Health and Human Services, 717 F.Supp. 366, 367(W.D.Penn.1989).

We note that the Secretary of Veterans Affairs has recentlypromulgated a definition of “new and material”:

New and material evidence means evidence notpreviously submitted to agency decisionmakers whichbears directly and substantially upon the specific matterunder consideration, which is neither cumulative norredundant, and which by itself or in connection withevidence previously assembled is so significant that itmust be considered in order to fairly decide the meritsof the claim.

55 Fed.Reg. 52,273 (1990) (to be codified at 38 C.F.R.§ 3.156(a) effective Jan. 22, 1991). We do not find thisdefinition of “new and material” to be inconsistent withthe standard set out in Chisholm that we adopt here.The “reasonable possibility” standard is clearer and moreeasily applied.

[7] It is also important to note that the “benefit of thedoubt” standard applicable to the fact finder in veteransbenefits jurisprudence necessarily lowers the thresholdof whether the new and material evidence is sufficientto change the outcome. See 38 U.S.C. § 3007(b)(1988);Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).

[8] In this case, the new evidence submitted consistedof opinions from two qualified expert witnesses that theveteran's multiple sclerosis was service connected. Theseopinions were based on possible symptoms of multiplesclerosis that occurred within the seven-year presumptiveperiod. Dr. Cohen, an eminent specialist in the field,also stated that multiple sclerosis may be caused by thestress of military service itself. Neither of these statementsis cumulative of the evidence considered in the 1986BVA decision. Therefore, as the BVA correctly found,the statements qualify as “new.” Moreover, both beardirectly and substantially (to use the Secretary's wording)on the issue in dispute and, if believed, raise the reasonablepossibility of a different decision by the BVA. We holdthat these statements are “material.”

II.

In discussing Dr. Cohen's letter, the December 18, 1989,BVA decision said, “This evidence, while new, does notpertain to definitive clinical findings and does not providea new factual basis so as to permit the grant of service











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connection for multiple *175 sclerosis.” In attempting tobuttress the finding that the evidence, while new, did notprovide a new factual basis, the opinion went on to say:

We note the veteran's allegation thata change in refractive error duringservice was indicative of multiplesclerosis. This shift in vision wasnot attributed to optic neuritis,often associated with the onsetof multiple sclerosis. And, opticneuritis was not manifested withinseven years after separation fromservice. Additionally, one episodeof burning on urination duringservice does not represent either theonset of multiple sclerosis or bladderdysfunction often associated withthe progression of the disease.Further, an episode of right footnumbness during 1972 has notbeen clinically verified and, withoutmore, in terms of clinical findings,would not serve to show a definitesymptom indicative of early multiplesclerosis.

William M. Colvin, loc. no. 934615, at 5 (BVA Dec. 18,1989).

[9] [10] The BVA decision does not cite medicalevidence of record in this case or recognized medicaltreatises to support these medical conclusions. The BVA,

in finding that the new evidence did not provide a newfactual basis for a claim was, in effect, refuting theexpert medical conclusions in the record with its ownunsubstantiated medical conclusions. BVA panels mayconsider only independent medical evidence to supporttheir findings. If the medical evidence of record isinsufficient, or, in the opinion of the BVA, of doubtfulweight or credibility, the BVA is always free to supplementthe record by seeking an advisory opinion, orderinga medical examination or citing recognized medicaltreatises in its decisions that clearly support its ultimateconclusions. See 38 U.S.C. § 4009 (1988); Murphy v.Derwinski, 1 Vet.App. 78, 81 (1990). This procedureensures that all medical evidence contrary to the veteran'sclaim will be made known to him and be a part of therecord before this Court.

Lest we be misunderstood, we are not saying that the BVAwas compelled to accept the opinions of Drs. Cohen andKassirer. We merely state that having reached a contraryconclusion, it was necessary for the panel to state itsreasons for doing so and, more importantly, point to amedical basis other than the panel's own unsubstantiatedopinion which supported the decision.

REVERSED and REMANDED to the BVA for actionconsistent with this opinion.

All Citations

1 Vet.App. 171





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Kyhn v. Shinseki, 716 F.3d 572 (2013)


716 F.3d 572United States Court of Appeals,

Federal Circuit.

Arnold C. KYHN, Claimant–Appellant,v.

Eric K. SHINSEKI, Secretary ofVeterans Affairs, Respondent–Appellee.

No. 2012–7003.|

May 3, 2013.

SynopsisBackground: Veteran appealed from a decision of theUnited States Court of Appeals for Veterans Claims, 2011WL 135820, affirming the Board of Veterans' Appeals'denial of his tinnitus claim.

Holding: The Court of Appeals, Wallach, Circuit Judge,held that veterans court improperly relied upon extra-record evidence to make a finding of fact in the firstinstance, and, in so doing, acted outside its statutorily-granted jurisdiction to review Board of Veterans' Appeals'decision based upon the record before the Board.


Lourie, Circuit Judge, filed dissenting opinion.

West Headnotes (1)

[1] Armed ServicesRecord

Veterans court improperly relied upon extra-record evidence to make a finding of factin the first instance, and, in so doing, actedoutside its statutorily-granted jurisdiction toreview Board of Veterans' Appeals' decisionbased upon the record before the Board. 38U.S.C.A. § 7261(c).



*573 Perry A. Pirsch, Berry Law Firm, PC, of Lincoln,Nebraska, argued for the claimant-appellant. Of counselwas Jeanne A. Burke, of Omaha, Nebraska.

Steven M. Mager, Trial Attorney, Commercial LitigationBranch, Civil Division, United States Department ofJustice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery,Acting Assistant Attorney General, Jeanne E. Davidson,Director, and Todd M. Hughes, Deputy Director. Ofcounsel on the brief were Michael J. Timinski, DeputyAssistant General Counsel, and Jonathan E. Taylor,Attorney, United States Department of Veteran Affairs,of Washington, DC.

Before RADER, Chief Judge, LOURIE, ANDWALLACH, Circuit Judges.

Opinion

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge LOURIE.

WALLACH, Circuit Judge.

Arnold C. Kyhn appeals from the decision of theUnited States Court of Appeals for Veterans Claims(“Veterans Court”) affirming the Board of Veterans'Appeals' (“Board”) denial of Mr. Kyhn's tinnitus claim.Kyhn v. Shinseki, 24 Vet.App. 228 (2011) (“Kyhn II ”).In particular, Mr. Kyhn challenges the Veterans Court'sreliance on affidavits that were not part of the recordbefore the Board. Because the Veterans Court lackedjurisdiction to rely on this extra-record evidence, we vacateand remand.

BACKGROUND

Mr. Kyhn served in the United States Army from May1945 to October 1946. In February 1998, he filed aclaim for service-connected hearing loss, which wasdenied by the Veterans Affairs (“VA”) regional office(“RO”). Mr. Kyhn submitted a Notice of Disagreement(“NOD”), accompanied by medical evidence from hisprivate audiologist that he suffered from hearing loss

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attributable to his military service. Mr. Kyhn also assertedin his NOD that he was seeking service connectionfor tinnitus. After various proceedings, the RO grantedservice connection for hearing loss at a 50% rating, butdenied service connection for tinnitus. Mr. Kyhn did notappeal this decision and it became final.

In January 2004, Mr. Kyhn sought to reopen his tinnitusclaim, and presented another letter from his privateaudiologist stating that Mr. Kyhn's “history of noise*574 exposure while in the military, without the benefit

of hearing protection, ... is quite likely ... the beginningof [his] hearing loss and tinnitus.” Kyhn II, 24 Vet.App.at 231. Although the RO declined to reopen the tinnitusclaim, the Board found the private audiologist's statementconstituted new and material evidence and remandedto the RO to afford Mr. Kyhn a VA examination to“ascertain the etiology and severity of any tinnitus thatmay be present.” Id. The RO scheduled an examinationfor March 7, 2006, but Mr. Kyhn failed to attend. Not longafter, the Board denied service connection for tinnitus,

based on the evidence of record. 1 Mr. Kyhn appealed tothe Veterans Court.

Before the Veterans Court, Mr. Kyhn argued, inter alia,that there was good cause for his failure to attend theVA examination because the VA failed to provide himwith notice of when it was scheduled. The Veterans Courtapplied the presumption of regularity to presume that Mr.Kyhn had received notice of the examination, and affirmedthe Board's denial of service connection.

To determine whether the presumption of regularityapplied, the Veterans Court ordered the Secretary ofVeterans Affairs (“Secretary”) to provide the court with“information concerning the regular process by whichVA notifies veterans of scheduled VA examinations.”Kyhn II, 24 Vet.App. at 233. The Secretary complied andsubmitted two affidavits from VA employees, only oneof whom professed personal knowledge of the regular

practice for mailing such notice to veterans. 2 Jo EllenBash, a manager at the VA Medical Center (“VAMC”) inOmaha, Nebraska, stated that a scheduling clerk typicallyprovided a veteran with notice of his VA examination by“electronically generat[ing] a letter to the veteran” fromthe Automated Medical Information Exchange system.J.A.88.

Relying on this evidence, the Veterans Court found theVA had a regular practice to provide veterans with noticeof their VA examinations and applied the presumptionof regularity to presume the VA had properly notified

Mr. Kyhn in accordance with this practice. 3 The VeteransCourt further held that the absence of a copy of notice inMr. Kyhn's claims file and prior irregularities in processinghis claim did not “constitute clear evidence to rebut thepresumption of regularity....” Kyhn II, 24 Vet.App. at 236.

Having presumed that notice of the examination wasmailed to Mr. Kyhn, the Veterans Court affirmed theBoard's denial of Mr. Kyhn's tinnitus claim. Id. at 238.Mr. Kyhn then moved for rehearing and full courtreview, arguing that the panel's reliance on extra-recordevidence was an improper departure from Veterans Courtprecedent. The motion for rehearing was *575 denied.However, Chief Judge Kasold and Judge Hagel dissentedfrom the denial, on the ground that the full court shoulddecide the Veterans Court's authority to “obtain andconsider evidence not in the record before the agency toresolve a non-jurisdictional issue.” Kyhn v. Shinseki, 2011U.S.App. Vet. Claims LEXIS 1566, *1–2 (Vet.App. July25, 2011). Mr. Kyhn filed this timely appeal.

DISCUSSION

This court's jurisdiction to review decisions of theVeterans Court is limited by statute. Pursuant to 38U.S.C. § 7292(a), this court has jurisdiction to review“the validity of a decision of the [Veterans] Court ona rule of law or of any statute or regulation ... or anyinterpretation thereof (other than a determination as toa factual matter) that was relied on by the [Veterans]Court in making the decision.” Except to the extent that aconstitutional issue is presented, this court may not review“a challenge to a factual determination,” or “a challengeto a law or regulation as applied to the facts of a particularcase.” 38 U.S.C. § 7292(d)(2). The Veterans Court's legaldeterminations are reviewed de novo. Cushman v. Shinseki,576 F.3d 1290, 1296 (Fed.Cir.2009). Mr. Kyhn's appealraises the legal question of whether the Veterans Courtacted beyond its jurisdiction when it relied on evidencenot in the record before the Board and engaged in first-instance fact finding. See Winters v. Gober, 219 F.3d 1375,1379 (Fed.Cir.2000) (reviewing the legal issue of whetherthe Veterans Court exceeded its statutory authority).

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The Veterans Court has jurisdiction “to review decisionsof the Board ... on the record of the proceedings before theSecretary and the Board.” 38 U.S.C. § 7252(a), (b); see alsoHenderson v. Shinseki, 589 F.3d 1201, 1212 (Fed.Cir.2009)rev'd and remanded on other grounds sub nom Henderson exrel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197,179 L.Ed.2d 159 (2011) (“[T]he Veterans Court reviewseach case that comes before it on a record that is limited tothe record developed before the RO and the Board.”). TheVeterans Court's jurisdiction to review the Board is further“limited to the scope provided in section 7261 of [Title38].” 38 U.S.C. § 7252(b). Section 7261 allows the VeteransCourt to review “questions of law de novo, questions offact for clear error, and certain other issues under the‘arbitrary, capricious, abuse of discretion, not otherwisein accordance with law’ standard.” Garrison v. Nicholson,494 F.3d 1366, 1368 (Fed.Cir.2007) (quoting 38 U.S.C. §7261(a)). Moreover, section 7261(c) makes clear that “[i]nno event shall findings of fact made by the Secretary orthe Board ... be subject to trial de novo by the [Veterans]Court.” 38 U.S.C. § 7261(c). This subsection “prohibitsthe Veterans Court from making factual findings in the

first instance.” 4 Andre v. Principi, 301 F.3d 1354, 1362(Fed.Cir.2002).

1. The Veterans Court Considered EvidenceThat Was Not In the Record Before the Board

In this case, the Veterans Court's decision denying relieffor Mr. Kyhn relied upon affidavits from two VAemployees, neither of which was in the record before*576 the Board. Such reliance on extra-record evidence

was in contravention of the jurisdictional requirement that“[r]eview in the [Veterans] Court shall be on the recordof proceedings before the Secretary and the Board.” 38U.S.C. § 7252(b).

On appeal, the Secretary argues that such reliance waspermissible because “[i]t is well established that courtshave discretion to take judicial notice of matters outsidethe record.” Secretary's Br. at 18 (citing Fed.R.Evid.201). However, to the extent the Secretary relies onFed.R.Evid. 201 as authority for the Veterans Court'sotherwise impermissible consideration of extra-record

evidence, that reliance is misplaced. 5 The affidavits in thiscase were from a party's employees regarding otherwiseunknown internal procedures. Such evidence is neither“generally known” nor “from sources whose accuracy

cannot reasonably be questioned.” 6 Fed.R.Evid. 201.Thus, they are not the “kinds of facts that maybe judicially noticed.” Id. (heading format modified);see also Murakami v. United States, 398 F.3d 1342,1355 (Fed.Cir.2005); In re Kahn, 441 F.3d 977, 990(Fed.Cir.2006). Nor, as the Secretary contends, are theaffidavits of a party's employees similar to authoritiessuch as VA manuals. See Kyhn II, 24 Vet.App. at 234(“[W]hile VA has a written procedure for schedulingexaminations that is set forth in its manuals, it doesnot have written instructions regarding the procedures itfollows to notify a claimant of a scheduled examination.”).The Veterans Court has rejected similar arguments inthe past: “[The] characterization of the aforementionedmaterials as ‘authorities' does not magically transformtheir status in this appeal. All of appellant's profferedsupplementary materials are evidentiary in nature and,as such, may not come in through the back door byway of citation as ‘supplemental authorities.’ ” Godfreyv. Derwinski, 2 Vet.App. 352, 355 (1992) (excludingtelevision news program transcripts because “[t]heyobviously do not constitute legal authority; nor do theyprovide a description of ‘facts not subject to reasonabledispute,’ ” and thus they “may not be considered inthe first instance by the [Veterans] Court”) (internalcitations omitted). The affidavits in this case are similarly“evidentiary in nature” and may not be considered in the

first instance by the Veterans Court. 7

*577 The Secretary also argues that the Veterans Court'sreliance on the newly-submitted evidence was permissiblebecause “[i]t was Mr. Kyhn who prompted the VeteransCourt's inquiry into VA's procedure by asserting, forthe first time, before the Veterans Court that he hadnot received notice of the scheduled March 2006 VAexamination....” Secretary's Br. at 15. If true, the factthat Mr. Kyhn failed to previously raise his lack of noticeargument would be relevant to whether he waived that

argument before the Veterans Court, 8 but would notauthorize the Veterans Court to act outside the boundsof its jurisdiction by relying on extra-record evidence. Cf.Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)(“[N]o action of the parties can confer subject-matterjurisdiction upon a federal court.”). Thus, the VeteransCourt's reliance on Ms. Bunde's and Ms. Bash's affidavitsexceeded the Veterans Court's limited jurisdiction to


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review the Board's decision based upon the record beforethe Board. See 38 U.S.C. § 7252(b).

2. The Veterans Court Improperly Engagedin Fact Finding in the First Instance

The Veterans Court further erred by relying on theextra-record evidence to make a finding of fact in thefirst instance. See Deloach v. Shinseki, 704 F.3d 1370,1380 (Fed.Cir.2013) (citing Andre, 301 F.3d at 1362). Inparticular, the court found the affidavits proved “thatVA does have an established procedure for notifyingclaimants of [VA] examinations.” Kyhn II, 24 Vet.App.at 234. The Veterans Court explained this was notan impermissible finding of fact, because it consideredthe affidavits solely “[a]s part of the de novo processfor determining whether the presumption of regularityattaches....” Id. at 233–234. However, this rationale doesnot transform the Veterans Court's factual finding into alegal conclusion.

This case differs from other instances wherethe presumption of regularity was premised uponindependent legal authority rather than on evidentiaryfindings. See, e.g., Miley v. Principi, 366 F.3d 1343, 1346–47 (Fed.Cir.2004) (presuming that VA officials actedconsistently with their legal duty under 38 U.S.C. § 7105(b)(1) to mail the veteran notification of a rating decision);Butler v. Principi, 244 F.3d 1337, 1340–41 (Fed.Cir.2001)(presuming VA officials acted consistently with their legalduty under 38 U.S.C. § 5104(a) to mail the veteran noticeof appeal rights). Here, the Veterans Court weighed theaffidavits to find that the VA had a regular practiceof providing notice of VA examinations. This findingimproperly resulted from the “evaluation and weighing ofevidence” in the first instance. Deloach, 704 F.3d at 1380.The Veterans Court's application of the presumption ofregularity to this factual finding does not convert the

underlying finding into a legal conclusion. 9 *578 Tothe contrary, the Veterans Court's fact finding in thefirst instance exceeded its jurisdiction to review the Boardbased on the record before the Board. See id.

CONCLUSION

The Veterans Court improperly relied upon extra-recordevidence to make a finding of fact in the first instance,

and, in so doing, acted outside its statutorily-grantedjurisdiction to review the Board's decision based uponthe record before the Board. The dissent may be correctthat undertaking the proper procedure in this casewould ultimately result in the same outcome and “onlyfurther delay the proceedings.” Dissenting Op. at 581.Nevertheless, Congress vested the Veterans Court withlimited jurisdiction, and even the weighty interests ofjudicial economy cannot enlarge that which a statute has

directly limited. 10 Because the Veterans Court exceededits jurisdiction in deciding this case, its decision is vacated

and remanded. 11

VACATE AND REMAND

LOURIE, Circuit Judge, dissenting.I respectfully dissent from the majority's decision tovacate and remand the decision of the United StatesCourt of Appeals for Veterans Claims (“VeteransCourt”) affirming the decision of the Board of Veterans'Appeals (“Board”) holding that Kyhn lacked serviceconnection for tinnitus. Kyhn v. Shinseki, 24 Vet.App. 228(2011) (“Kyhn II”). Because I believe that the VeteransCourt did not err in requesting information from theDepartment of Veterans Affairs (“VA”) concerning itspractice of scheduling and notifying veterans of medicalexaminations and also did not err in determining, basedon the VA's response, that Kyhn was presumed to havereceived that notice, I would affirm.

Under 38 U.S.C. § 7252, the Veterans Court is vestedwith the authority “to review decisions of the Boardof Veterans' Appeals” and such review “shall be onthe record of the proceedings before the Secretary andthe Board.” Section 7261(c) also states that “[i]n noevent shall findings of fact made by the Secretary orthe Board of Veterans' Appeals be subject to trial denovo by the Court.” 38 U.S.C. § 7261(c). In my view,Kyhn's argument that the Veterans Court violated theseprovisions fails because neither of these provisions appliesto the circumstances of this case. There was no finding offact tried de novo by the Veteran's Court.

First, I note preliminarily that the Veterans Court'sdetermination that the VA *579 has a regular process forproviding notice of scheduled examinations is not barredby § 7252(b). The Veterans Court has jurisdiction over a










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number of areas of seemingly first-instance factual inquirythat were not “on the record of the proceedings beforethe Secretary and Board” under § 7252(b), includingdetermining both the regularity of procedure and relyingon outside affidavits not in the record.

For example, the Veterans Court has taken judicial noticeof affidavits to establish facts that were not relevant atthe Board level. Fed.R.Evid. 201; see B.V.D. LicensingCorp. v. Body Action Design, Inc., 846 F.2d 727, 728(Fed.Cir.1988) (“Courts may take judicial notice of factsof universal notoriety, which need not be proved, and ofwhatever is generally known within their jurisdictions.”);Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ( “Courtsmay take judicial notice of facts not subject to reasonabledispute.”). Further, the Veterans Court has consideredaffidavits in resolving jurisdictional disputes. Clark v.Principi, 15 Vet.App. 61, 62 (2001); Timberlake v. Gober,14 Vet.App. 122, 132 (2000). The Veterans Court has alsoreviewed evidence not in the record to resolve motionsfor attorney's fees. E.g., Bazalo v. Brown, 9 Vet.App. 304(1996) (en banc), rev'd on other grounds, Bazalo v. West,150 F.3d 1380 (Fed.Cir.1998).

The Veterans Court likewise could have, if it neededto, taken judicial notice of VA procedures found inmanuals existing at the VA prior to the appeal. Johnsonv. Shinseki, 23 Vet.App. 344, 351 (2010); cf. Marsh, 19Vet.App. at 386–87 (VA regulations relevant to establishVA procedure). Those procedures are not always setforth in published form, Johnson, 23 Vet.App. at 351;Smith v. Shinseki, 24 Vet.App. 40, 46 (2010), and, indeed,prior opinions of the Veterans Court have faulted thegovernment for not filing affidavits of VA personnelto support an argument on the regularity of practice,Posey v. Shinseki, 23 Vet.App. 406, 410 (2010) (“At notime has the Secretary produced, or offered to produce,affidavits of VA personnel to support his argument thatsimply noting on an internal document that a Boarddecision was re-mailed on a particular date plausiblydemonstrates the actual date the Board decision was re-mailed, nor did he file any attachments with his briefdemonstrating an established policy for the re-mailingof Board decisions.”); see Chabebe v. Shinseki, No. 09–0114, 2010 WL 3230804 (Vet.App. Aug. 16, 2010) (“Thefoundation of any presumption of regularity is a showing,by affidavit or otherwise, what the regular procedure maybe.”).

As with jurisdictional matters, evidence regardingregularity is not used to adjudicate the merits of aclaim. Such evidence is only used to establish whethera presumption of regularity attaches. The affidavits inthis circumstance were properly used to establish thatpresumption, not to establish the fact that Kyhn hadbeen notified. In the limited circumstance where a VAprocedure needs to be established, I believe that theVeterans Court can take judicial notice of VA proceduresbased on affidavits provided by the VA that are not subjectto reasonable dispute.

The majority relies on apparent inconsistencies in theaffidavits to argue that the Veterans Court cannottake judicial notice of their contents. Majority Op.at 7 n.5 These arguments were not raised by Kyhnbefore the Veterans Court. Indeed, Kyhn, in movingfor reconsideration, did not challenge the substanceof those affidavits, only the procedure by which theywere considered. Regardless, the alleged inconsistencies,such as whether the letter is generated and addressedautomatically or manually and the number of days before*580 mailing, are not controlling. Such a level of

granularity is not significant. In this instance, the fact thatthe affidavits consistently note that a letter is generated,addressed according to the address on file, and thensubsequently mailed is sufficient to establish the existenceof the procedure.

Second, section 7261(c) is irrelevant here because therewas no finding of fact by the Board that the VeteransCourt reviewed de novo. The issue of the regular procedureof the VA only became relevant in response to a defenseraised by Kyhn on appeal in the Veterans Court. Because ithad not been raised below, the Board had no opportunityto engage in any findings of fact under § 7261(c) that couldbe subject to review by the Veterans Court.

The case relied on by the majority for arguing that §7261(c) still applies despite the VA not engaging in anyfact-finding, Deloach v. Shinseki, 704 F.3d 1370, 1380(Fed.Cir.2013), is inapposite as it does not discuss thepresumption of regularity and ignores the circumstances,previously discussed when the Veterans Court can anddoes engage in limited fact-related finding in the firstinstance, including in establishing the presumption ofregularity. Even so, irrespective of the appropriatestandard of review, because the VA made no fact-finding,I believe that § 7261(c) was not violated.

































Moreover, the long-standing practice at the VeteransCourt is to review the application of the presumptionof regularity de novo as a matter of law. E.g., Marshv. Nicholson, 19 Vet.App. 381, 386 (2005). Under thatstandard, the question whether the presumption ofregularity applies is not a finding of fact at all, and thus§ 7261(c) would not apply even if the VA had addressedthe presumption of regularity in the first instance. Thereis, however, a disconnect between our case law and thatof the Veterans Court on the applicable standard ofreview, which the majority attempts to reconcile. SeeEchevarria–North v. Shinseki, 437 Fed.Appx. 941, 946–47 (Fed.Cir.2011) (unpublished) (stating that the questionof the presumption of regularity is either a question offact or the application of law to fact). If the applicabilityof the presumption of regularity is a question of factor application of law to fact, then we cannot reviewthat determination, including the supposed conflictingcontents of any affidavits, as it is beyond our jurisdiction.See id. But the question of the proper standard of reviewis not before us as the Board engaged in no actual fact-finding.

While the majority does not reach the due process issuesraised by Kyhn, I would also agree with the VeteransCourt that Kyhn was not deprived of due process. Boththe Board and the RO considered his claim for serviceconnection for tinnitus, and Kyhn had the opportunityto submit evidence before both entities. Kyhn, after beingnotified by the RO in 2006 that he failed to attend theVA examination, did not respond that he had not beennotified of the examination. Indeed, he did not offer anyexplanation for his failure to attend. Instead, in responseto the RO's denial of Kyhn's claim after he failed to appear,Kyhn represented that he had no other information tosubstantiate his claim and that he did not contest thenotice of the examination. Kyhn did not even dispute thatthe address the notice was mailed to was incorrect. Kyhn'sfailure to take advantage of the opportunities at the VAand at the Board is thus not a deprivation of agencyreview. See Nat'l Classification Comm. v. United States,779 F.2d 687, 695 (D.C.Cir.1985).

There is likewise no evidence that the Veterans Courtdenied Kyhn an opportunity to dispute the contents of theaffidavits regarding the VA's regular notification *581procedure. Kyhn, in fact, did not dispute the accuracy ofthe affidavits at all in his supplemental briefing or offerany evidence to the contrary. Instead, he only opposed thepropriety of the Board considering those affidavits. Again,Kyhn simply failed to take advantage of the opportunitiesafforded him and thus was not deprived of due process.

Finally, I recognize that in some circumstances theVeterans Court has remanded a case to the Board forlimited fact-finding on non-jurisdictional notice issues.E.g., Mayfield v. Nicholson, 20 Vet.App. 98, 99 (2006)(remanding for a factual determination by the Boardwhether the notice given to the veteran was sufficient).However, in this case, where the evidence is only relevantto establish as a matter of law the regular procedureof the VA, not the merits of the actual notice in agiven claim, requiring such a remand would only furtherdelay the proceedings, needlessly churning the system toestablish only the existence of a regular practice thatwould ultimately still be subject to de novo review by theVeterans Court under existing precedent.

To reverse would likely cause a remand to the Boardto determine its own practice in the first instance.Because waiver is rare at the pro-claimant VeteransCourt, a reversal could set a standard that newly raiseddefenses in the Veterans Court could repeatedly triggerremand to the Board and further delay resolution ofproceedings. Judicial economy warrants against allowingsuch a wasteful process.

For the foregoing reasons, I respectfully dissent from themajority's decision reversing and remanding the decisionof the Veterans Court.

All Citations

716 F.3d 572

Footnotes1 The Board explained that when a veteran fails to attend a scheduled examination, “the claim shall be rated on the evidence

of record.” In re Kyhn, No. 99–21–607, slip op. at 5 (Bd.Vet.App. May 17, 2007) (citing 38 C.F.R. § 3.655).










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2 The other employee, Margaret Bunde stated that the VA Medical Center, rather than the RO, was tasked with mailingthe veteran notice of an examination. J.A.100. However, as an employee of the RO and not the VAMC, Ms. Bunde wasunable to describe how the VAMC mailed notice to veterans.

3 The Veterans Court decision discussed herein was issued on January 18, 2011, Kyhn II, 24 Vet.App. at 228, after panelreconsideration of an earlier decision issued on January 15, 2010, Kyhn v. Shinseki, 23 Vet.App. 335 (2010) (“Kyhn I”). Both Kyhn I and Kyhn II affirmed the Board decision and are similar in most respects, except that Kyhn II more fullyexplains the basis for admitting the affidavits and applying the presumption of regularity.

4 Contrary to the dissent's position, section 7261 is relevant here even though the Board made no underlying finding offact. By making an independent finding of fact absent an underlying factual finding by the Board, the Veterans Court bothexceeds its jurisdiction to “review” the Board's decision under § 7252 and impermissibly engages in first-instance factfinding barred by § 7261. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.Cir.2013).

5 Although the Federal Rules of Evidence are not generally applicable to the Veterans Court, the Veterans Court has reliedon Fed.R.Civ.P. 201 in the past as justification for its consideration of extra-record materials. See, e.g., D'Aries v. Peake,22 Vet.App. 97, 105 (2008) (relying on Fed.R.Evid. 201(b) as authority to take judicial notice of a fact in DORLAND'SILLUSTRATED MEDICAL DICTIONARY 1285 (31st ed. 2007), specifically, that “neurology is the medical specialty thatdeals with the nervous system”).

6 Certain inconsistencies in Ms. Bash's affidavit confirm that her testimony was neither “generally known” nor from a source“whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. For instance, she says the notification lettersmust be generated by the scheduling clerk, but later says the letters are “automatically generated.” J.A.88–89. Nor doesshe testify to the regular procedure for mailing the letters, including whether address information is input manually orautomatically or the number of business days before a letter is mailed. Nevertheless, she states that Mr. Kyhn's noticeletter “would have been mailed out to his address of record on February 11 or 12, 2006.” J.A.89.

7 Contrary to the dissent's analysis, Dissenting Op. at 2–3, the Veterans Court's practice of admitting applications forattorney's fees is premised on independent statutory authority in the Equal Access to Justice Act (“EAJA”) and is thusinapposite to its reliance on extra-record affidavits in this case. See 28 U.S.C. § 2412 (providing independent authorityfor the Veterans Court's admission and consideration of “an application for fees and other expenses.”); see also Bazalov. Brown, 9 Vet.App. 304, 307–308 (1996) rev'd on other grounds, Bazalo v. West, 150 F.3d 1380 (Fed.Cir.1998) (notinga statutory amendment making “the EAJA applicable to [the Veterans] Court”).

8 The Veterans Court's decision contains a half-formed waiver analysis, but does not rely upon waiver as an alternativebasis for its holding. Kyhn II, 24 Vet.App. at 235–236. On appeal, the Secretary does not argue waiver as an alternativebasis for affirmance.

9 An analogy may be helpful. There is a rebuttable presumption that a properly-addressed and mailed letter has reachedits destination. Rios v. Nicholson, 490 F.3d 928, 930–31 (Fed.Cir.2007). Although this presumption is a rule of law, itsapplication is triggered by the preliminary factual findings that the letter was properly addressed and mailed. Likewise,the presumption that VA officials properly sent Mr. Kyhn notice of his examination was based on the Veterans Court'spreliminary finding, based on the affidavits, that the VA had a regular practice of providing notice of VA examinations.Cf. Routen v. West, 142 F.3d 1434, 1440 (Fed.Cir.1998) (citing Weinstein's Federal Evidence § 301.02[1], at 301–07 (2ded.1997); McCormick on Evidence § 342, at 450 (John W. Strong ed., 4th ed. 1992)) (explaining that “predicate evidence”must be established before a presumption is triggered).

10 Although the dissent is concerned that reversal in this case could “set a standard” requiring repeated remands to theBoard for factual finding, Dissenting Op. at 580–81, this opinion only requires that the Veterans Court follow the lawconfining its jurisdiction. Past decisions of this court have required the same. See, e.g., Hensley v. West, 212 F.3d 1255,1263 (Fed.Cir.2000) (holding the Veterans Court lacked jurisdiction to engage in fact finding in the first instance, andexplaining that remand to the Board was required if there was “insufficient factual development of the record”).

11 Having granted Mr. Kyhn's requested relief, we need not decide his additional arguments that the Veterans Court'sreliance on extra-record evidence violated his due process rights and right to two administrative reviews.























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Kyhn v. Shinseki, 26 Vet.App. 371 (2013)



Distinguished by Collins v. Shinseki, Vet.App., November 13, 2013


Arnold C. KYHN, Appellant,v.

Eric K. SHINSEKI, Secretaryof Veterans Affairs, Appellee.

No. 07–2349.|

Oct. 22, 2013.

SynopsisBackground: Veteran appealed from decision of Court ofAppeals for Veterans Claims, 24 Vet.App. 228, affirmingBoard of Veterans' Appeals' (BVA) denial of his tinnitusclaim. The Court of Appeals, Federal Circuit, Wallach,Circuit Judge, 716 F.3d 572, found that veterans courtimproperly relied upon extra-record evidence to makea finding of fact in the first instance, and vacated andremanded.

[Holding:] The Court of Appeals for Veterans Claimsheld that BVA's failure to discuss the documents it reliedon in making its finding that veteran was providednotification of scheduled Department of Veterans Affairs(VA) audiological examination, and failure to discusswhether that finding was based on presumption ofregularity, warranted remand.


West Headnotes (2)


Armed ServicesRemand

Board of Veterans' Appeals' failure todiscuss the documents it relied on inmaking its finding that veteran was provided

notification at his correct address ofscheduled Department of Veterans Affairs(VA) audiological examination to ascertainthe etiology and severity of any tinnitus,and failure to discuss whether that findingwas based on a presumption of regularity,warranted remand to Board; notificationissue could require the Board to engage inadditional fact finding to render a decision onthe issue, particularly if the Board relied onpresumption of regularity to support findingthat notification of the examination was madeto veteran. 38 U.S.C.A. § 7104(a), (d)(1).


[2] Armed ServicesPresentation or reservation of grounds

for review

The Court of Appeals for Veterans Claims hasdiscretion to consider issues that are raised forthe first time on appeal.



*371 John S. Berry, Perry A. Pirsch, and Chad J.Wythers, all of Lincoln, Nebraska, were on the pleadingsfor the appellant.

Will A. Gunn, General Counsel; David L. Quinn, ActingAssistant General Counsel; Richard Mayerick, DeputyAssistant General Counsel; and James B. Cowden, all ofWashington, D.C., were on the pleadings for the appellee.

Before MOORMAN and SCHOELEN, Judges, andGREENE, Senior Judge.

Opinion

PER CURIAM:

Veteran Arnold C. Kyhn appeals, through counsel, a May17, 2007, decision of the Board of Veterans' Appeals(Board) that denied his claim for VA service connectionfor tinnitus. Record (R.) at 1–12. On January 18, 2011,the Court affirmed the Board's decision. Kyhn v. Shinseki,24 Vet.App. 228 (2011) (per curiam). Mr. Kyhn, through

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counsel, appealed to the U.S. Court of Appeals forthe Federal Circuit (Federal Circuit), which vacated thisCourt's decision and remanded the matter on May 3, 2013.Kyhn v. Shinseki, 716 F.3d 572 (Fed.Cir.2013). In light ofthe Federal Circuit decision, the Court, by a single judgedecision, vacated the Board's decision and remanded theclaim to the Board on July 15, 2013. Kyhn v. Shinseki,No. 07–2349, 2013 WL 3718741, at *3 (Vet.App. July 15,2013). On August *372 5, 2013, the Secretary filed atimely motion for reconsideration or, in the alternative, amotion for panel decision.

The motion for decision by a panel will be granted. Afterreview of the parties' pleadings and the record, the Court'ssingle judge July 15, 2013, decision will be withdrawn andthis opinion will be issued in its place. For the reasons setforth below, the Court will vacate the May 17, 2007, Boarddecision and remand the matter for further proceedingsconsistent with this opinion.

I. FACTS

Mr. Kyhn served honorably in the U.S. Army from May1945 to October 1946. In November 1999, a VA regionaloffice (RO) granted service connection for bilateralhearing loss and assigned a 50% disability rating butdenied service connection for tinnitus. R. at 115. Mr. Kyhndid not appeal the RO's denial of service connection fortinnitus.

In January 2004, Mr. Kyhn sought to reopen his claim forservice connection for tinnitus and presented a letter fromhis private audiologist stating that Mr. Kyhn's “history ofnoise exposure while in the military, without the benefitof hearing protection, ... is quite likely ... the beginning of[his] hearing loss and tinnitus.” R. at 258.

In January 2006, the Board determined that this 2004statement from the board-certified private audiologistconstituted new and material evidence and, therefore,reopened Mr. Kyhn's claim. R. at 552. In the samedecision, the Board remanded the claim so Mr. Kyhncould be given a VA audiological examination “toascertain the etiology and severity of any tinnitus thatmay be present.” R. at 552. On an internal VA recorddated March 8, 2006, it is noted that an audiologicalexamination was “cancelled” because the veteran “failedto report.” R. at 557. It also stated: “veteran failed to

report on 3/7/06, notification was mailed to 2341 2ndAve, Boelus, NE 68820. POA [(power of attorney)]/Berry was also notified.” Id.; R. at 574–75 (Feb. 3,2006, RO notation requesting that VA medical facilityschedule an audiological examination). A March 26, 2006,Supplemental Statement of the Case noted that Mr. Kyhn“failed to report to the examination on March 7, 2006,”and that “the consequences of that refusal may result inthe adjudication of the matter based on the evidence ofrecord under 38 [C.F.R. § ] 3.655.” R. at 580. The ROdetermined that “service connection remains denied.” R.at 581.

The matter was returned to the Board and, in its May17, 2007, decision, the Board denied service connectionfor tinnitus after finding that the record contained noprobative evidence that Mr. Kyhn's tinnitus was incurredin or causally related to service or aggravated by anyservice-connected disability. The Board determined thatVA had complied with its duty to assist, pursuant to 38U.S.C. § 5103A, because a VA audiological examinationwas scheduled and “notification of the examination wasmailed to the veteran at his correct address of record.”R. at 5. The Board noted that, in accordance with §3.655, “[w]hen, as here, entitlement to a VA benefitcannot be established or confirmed without a current VAexamination or reexamination and a claimant withoutgood cause, fails to report for such examination scheduledin conjunction with an original compensation claim, theclaim shall be rated on the evidence of record.” 38C.F.R. § 3.655 (2006). In considering the evidence ofrecord, the Board assigned “limited probative value” tothe January 2004 private medical evidence regarding Mr.Kyhn's tinnitus because “it was offered without the benefitof a review of the *373 veteran's claims folder.” R. at11. The Board also noted that “the years long absenceof evidence of notations of tinnitus constitutes negativeevidence....” R. at 10.

Mr. Kyhn, through counsel, appealed to this Court,which issued a January 15, 2010, decision affirmingthe Board. Thereafter, the appellant filed a motion forreconsideration, and the Court ordered supplementalbriefing from the parties. In its January 2011 decision, theCourt withdrew its January 2010 decision and issued anew decision again affirming the Board. In its decision,the Court addressed the appellant's contention, raisedfor the first time on appeal to this Court, that he neverreceived notice of the scheduling of the March 2006


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VA audiological examination. Aug. 25, 2008, Appellant'sBrief at 5–8. In so doing, the Court relied on twoaffidavits from VA employees submitted to the Courtby the Secretary as part of his supplemental briefingthat contained “information concerning the regularprocess by which VA notifies veterans of scheduled VAexaminations.” Kyhn, 24 Vet.App. at 233. In holdingthat VA had a regular practice to provide veterans withnotice of their VA examinations, this Court relied onthe affidavits. The Court then applied the presumptionof regularity to presume VA had properly mailed Mr.Kyhn notice of his scheduled March 2006 audiologicalexamination. Id. at 234. The Court went on to concludethat the appellant's “claimed irregularities” did notconstitute clear evidence to rebut the presumption ofregularity. Id. at 238.

Mr. Kyhn then appealed to the Federal Circuit, whichheld that this Court acted beyond its jurisdiction when itrelied on the affidavits that were not in the record beforethe Board (i.e., “extra-record evidence”) and engaged infirst-instance fact finding when this Court determined thatVA had an established procedure for notifying claimantsof VA examinations. Kyhn, 716 F.3d at 577–78. TheFederal Circuit held that the affidavits in this case were“ ‘evidentiary in nature’ and may not be considered inthe first instance by the Veterans Court.” Id. at 576. TheFederal Circuit explained that “[t]his case differs fromother instances where the presumption of regularity waspremised upon independent legal authority rather than onevidentiary findings.” Id. at 577. Because it found that thisCourt had “exceeded its jurisdiction,” the Federal Circuitvacated this Court's decision and remanded the matter. Id.at 578.

II. ANALYSIS

In the May 2007 decision, the Board found that“notification of the examination was mailed to theveteran at his correct address of record and there is noindication that notice of this examination was returnedby postal authorities as undeliverable.” R. at 5. Thus, theBoard specifically made a factual finding about propernotification of the scheduled examination. Having madesuch a finding, the Board was obligated to provide anadequate statement of the reasons or bases for the finding.In rendering a decision, the Board is required to considerall evidence of record and to consider, and discuss in its

decision, all “potentially applicable” provisions of law andregulation. Schafrath v. Derwinski, 1 Vet.App. 589, 592–93(1991); see 38 U.S.C. § 7104(a). The Board must providea statement of the reasons or bases for its determinations,adequate to enable an appellant to understand the precisebasis for the Board's decision as well as to facilitate reviewin this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App.49, 56–57 (1990).

*374 [1] Here, the Board did not discuss the documentsit relied on in making the finding that the appellant wasprovided notification of the examination at his correctaddress and did not discuss whether this finding was basedon a presumption of regularity. Because the Board didnot provide an explanation for its finding, the Board'sdecision does not enable the appellant to understandthe basis of the Board's finding and frustrates judicialreview. Accordingly, the Court will vacate the Boarddecision and require the Board to support its findingthat VA's notification duties were fulfilled (i.e., noticeof examination sent to correct address of record). If, onremand, the Board bases its finding on the presumption ofregularity, the Board should explain in detail the regularand established procedure that VA follows to schedulemedical examinations and provide notice of the scheduledexamination to claimants.

The Court is not persuaded by the Secretary's argumentin his motion for a panel decision that the Board wasnot required to provide an adequate statement of reasonsor bases for its notification finding because the appellantdid not assert nonreceipt of the notice of examinationbefore the Board. See Aug. 5, 2013, Secretary's Motionfor Panel Decision at 1–7. Specifically, he contends that“[w]ithout even a bare assertion of non-receipt of notice ofexamination in the evidence before the Board, there wasno reason for the Board to have addressed the issue ofthe presumption of regularity nor is there a factual basisfor the Court to remand the issue for consideration in thefirst instance.” Id. at 5. In support of his position, theSecretary relies on Baxter v. Principi, 17 Vet.App. 407, 411(2004), which he asserts the Court overlooked in makingits decision.

[2] Although the appellant raised for the first time onappeal here the issue whether he was properly notifiedof the VA examination, the Court may entertain thenewly raised argument. This Court has discretion to

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consider issues that are raised for the first time on appeal.Maggitt v. West, 202 F.3d 1370, 1377–78 (Fed.Cir.2000).The Court exercises its discretion and will not invokethe exhaustion doctrine. See id. The Court may “use[ ]its authority to ‘remand the matter, as appropriate,’to the Board.” Id. at 1378. The Board decision onappeal specifically made a factual finding about propernotification of the scheduled examination, and the Boardmade such finding even though the appellant did notraise that argument before the Board. A remand ofthe matter will allow the Board to support its findingthat VA's notification duties were fulfilled (i.e., notice ofexamination was sent to the correct address of record)either by (1) by determining that VA properly addressedand mailed the notice; or (2) by determining that VA isentitled to a presumption of regularity in its mailing ofnotices of scheduled VA examinations. See McCormick v.Gober, 14 Vet.App. 39, 45 (2000) (holding that remand isappropriate where it would “likely benefit the Court byproducing ‘a better record ... for appellate review of the[Board's] decision’ ” (quoting Maggitt, 202 F.3d at 1377)).Accordingly, the Court will vacate the Board decision andremand the case for the Board to make the necessaryfactual findings related to whether Mr. Kyhn was properlynotified of the scheduled examination.

Although the Secretary correctly states that Baxter “holdsthat the Board need not examine whether the presumptionof regularity has been rebutted unless and until anappellant, at a minimum, alleges that he did not receivethe document in question,” the Court here does notspecifically direct the Board to apply the presumptionof *375 regularity analysis or to consider only suchpresumption issue.

Unlike Baxter, where the appellant, in his briefing onappeal to this Court “assiduously avoided asserting thathe never received notice of the 1970 RO decision denyinghis claim,” Baxter, 17 Vet.App. at 410, Mr. Kyhn assertedon appeal that he never received notice of the scheduledVA examination. Although the Secretary, in his principalbrief, urged this Court not to address the appellant'sargument that he did not receive notice of the scheduledexamination, the Secretary also argued:

To the extent that the Court choosesto address Appellant's argument,the Secretary asserts that the Courtshould apply the presumption ofregularity to find that Appellant

did receive notice of the March2006 VA examination. Further,Appellant has failed to carry hisburden of rebutting the presumptionof regularity and as such can notshow that he had good cause formissing the examination.

Dec. 9, 2008, Secretary's Brief at 5–6. The Secretary's lateattempt to argue waiver following the Federal Circuit'sremand is without merit.

The Court also rejects the Secretary's contention thatthe Court cannot determine that the Board's reasons forits notification findings are inadequate without actingoutside its jurisdiction by (1) considering “evidentiary,”“extra record” assertions in the appellant's brief thathe did not receive notification of the examination and(2) making a factual finding that the appellant did notreceive such notification. The premise underlying theSecretary's argument is flawed. The Secretary fails torecognize the distinction between evidence and argument.Evidence is defined as records, documents, testimony, etc.,that are offered in proof of an alleged fact. BLACK'SLAW DICTIONARY 555 (6th ed.1990). An argument,on the other hand, is defined as “an effort to establisha belief by a course of reasoning.” BLACK'S at 107.The appellant's assertion to the Court that he did notreceive proper notification of the scheduled examinationis not made for the purpose of having this Court makea factual finding that he did not receive notice of theexamination. Rather, he is making this assertion as partof a legal argument regarding whether the Secretaryprovided proper notification of the examination.

Likewise, the Court neither weighs the probative valueof the appellant's assertions nor makes factual findingsregarding those assertions. As discussed above, this Courthas jurisdiction to hear arguments “presented to it in thefirst instance, provided it otherwise has jurisdiction overthe veteran's claim.” Maggitt, 202 F.3d at 1377. It is withinthe Court's discretion to consider such argument in thefirst instance, remand to the Board for its considerationof the issue, or simply decline to consider the argument.Id. Here, the Court has determined that a remand tothe Board is warranted because the Board's reasons forits findings are inadequate. Additionally, the Court hasrecognized that the notification issue may require theBoard to engage in additional fact finding to render adecision on this issue, particularly if the Board relies on










the presumption of regularity to support a finding thatnotification of the examination was made to the appellant.

On remand, the Board must apply current law, includingthis Court's decision in Nieves–Rodriguez v. Peake, 22Vet.App. 295, 303 (2008) (“the absence of claims filereview by a private medical expert does not categoricallyexclude the possibility that he is nevertheless informed ofthe relevant facts”), and Horn v. Shinseki, 25 Vet.App.231, 239 (2012) (“when assessing a claim, the Board maynot consider the *376 absence of evidence as substantivenegative evidence”), as appropriate.

On remand, the appellant is free to submit additionalevidence and argument, including the arguments raised inhis briefs to this Court, in accordance with Kutscherouskyv. West, 12 Vet.App. 369, 372–73 (1999) (per curiamorder), and the Board must consider any such evidenceor argument submitted. See Kay v. Principi, 16 Vet.App.529, 534 (2002). The Board shall proceed expeditiously, in

accordance with 38 U.S.C. §§ 5109B, 7112 (requiring theSecretary to provide for “expeditious treatment” of claimsremanded by the Board or the Court).

III. CONCLUSION

Upon consideration of the foregoing analysis, the recordon appeal, and the parties' pleadings, the Secretary'smotion for a panel decision is granted, the Court'sJuly 15, 2013, single judge memorandum decision isWITHDRAWN, and this opinion is issued in its stead.The May 17, 2007, Board decision is VACATED, andthe claim for entitlement to service connection for tinnitusis REMANDED for further adjudication consistent withthis opinion.

All Citations

26 Vet.App. 371










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Barr v. Nicholson, 21 Vet.App. 303 (2007)


KeyCite Red Flag - Severe Negative Treatment

Disagreed With by Walker v. Shinseki, Fed.Cir., February 21, 2013


James P. BARR, Appellant,v.


No. 04-0534.|

June 15, 2007.

SynopsisBackground: Veteran appealed decision of the Board ofVeterans' Appeals (BVA) which denied entitlement toservice connection for varicose veins.

Holdings: The United States Court of Appeals forVeterans Claims, Greene, Chief Judge, held that:

[1] presence of varicose veins is not a determination“medical in nature” and is capable of lay observation, forpurpose of establishing service connection;

[2] Board committed prejudicial error in dismissing asnot competent veteran's assertions that the onset of hisvaricose vein condition occurred in service and that hesuffered from the condition continuously since then; and

[3] VA medical examination report upon which Boardrelied was inadequate.


West Headnotes (8)

[1] Armed ServicesService Connection

Establishing service connection generallyrequires: (1) medical evidence of a currentdisability; (2) medical or, in certaincircumstances, lay evidence of in-service

incurrence or aggravation of a disease orinjury; and (3) medical evidence of a nexusbetween the claimed in-service disease orinjury and the present disability. 38 C.F.R. §3.303.


[2] Armed ServicesService Connection

Continuity of symptomatology, for purposesof satisfying service connection elements, maybe established if a claimant can demonstrate:(1) that a condition was “noted” duringservice; (2) evidence of postservice continuityof the same symptomatology; and (3) medicalor, in certain circumstances, lay evidence ofa nexus between the present disability andthe postservice symptomatology. 38 C.F.R. §3.303(b).


[3] Armed ServicesEvidence

Lay persons are not competent to opineas to medical etiology or render medicalopinions; however, lay testimony is competentto establish the presence of observablesymptomatology and may provide sufficientsupport for a claim of service connection.


[4] Armed ServicesEvidence

Presence of varicose veins is not adetermination “medical in nature” and iscapable of lay observation, for purpose ofestablishing service connection; although thesymptoms of the initial stage of varicose veinsare not capable of lay observation, veins thathave become visibly tortuous or dilated areobservable and identifiable by lay people.


[5] Armed Services

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Service Connection

Armed ServicesHarmless Error

Board of Veterans Appeals (BVA) committedprejudicial error in dismissing as notcompetent veteran's assertions that the onsetof his varicose vein condition occurredin service and that he suffered from thecondition continuously since then, sinceBoard thereby failed to adequately considermaterial evidence favorable to veteran'sservice connection claim.



A medical opinion provided by theDepartment of Veterans Affairs (VA) isadequate when it is based upon considerationof the veteran's prior medical history andexaminations and also describes the disabilityin sufficient detail so that the evaluation of theclaimed disability by the Board of VeteransAppeals (BVA) will be a fully informed one.



Department of Veterans Affairs (VA) medicalexamination report was inadequate, whereexaminer failed to review veteran's priormedical records and did not provide anopinion as to whether veteran's varicose veinswere related to service.



Remand is the appropriate remedy wherethe Board of Veterans Appeals (BVA) hasincorrectly applied the law or failed to providean adequate statement of reasons or bases forits determinations.



*304 Jenny Y. Twyford, of Waterford, Virginia, for theappellant.

Tim S. McClain, General Counsel; R. Randall Campbell,Assistant General Counsel; Richard Mayerick, DeputyAssistant General Counsel; and *305 Ralph G. Stiehm,all of Washington, D.C., for the appellee.

Before GREENE, Chief Judge, and KASOLD andHAGEL, Judges.

Opinion

GREENE, Chief Judge:

Veteran James P. Barr appeals through counsela February 17, 2004, decision of the Board ofVeterans' Appeals (Board) denying entitlement to serviceconnection for varicose veins. He argues, inter alia,that the Board erred (1) in its determination that noevidence demonstrated service incurrence of his conditionor supported a finding of continuity of symptomatologysince service; (2) by relying on an inadequate medicalexamination; and (3) in its determination that theSecretary complied with his notification duties pursuantto 38 U.S.C. § 5103(a) and the Veterans Claims AssistanceAct of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096.The Secretary argues that (1) a plausible basis exists inthe record for the Board's decision; (2) he had no duty toobtain a medical opinion in this case; and (3) Mr. Barr wasprovided adequate notice. For the reasons set forth below,the 2004 Board decision will be vacated and the matterremanded for further adjudication.

I. FACTS

Mr. Barr served honorably in the U.S. Army fromSeptember 1965 through September 1967. Record (R.) at14. His induction medical examination report does notnote any abnormalities of his vascular system or lowerextremities. R. at 17. His separation medical examinationreports a history of leg cramps. R. at 34. In October 1996,Mr. Barr filed a claim for disability compensation for



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varicose veins. R. at 62-63. He claimed that his conditionbegan in the summer of 1966 as a result of daily trainingruns on hard surfaces while wearing boots. Id. He statedthat he had been treated in a field hospital at Fort Benning,Georgia, during the summer of 1966, and had alsoreceived private treatment since his military discharge.Id. A January 1997 VA medical examiner opined thatMr. Barr had varicose veins and venous insufficiency ofthe legs, more marked on his left leg. R. at 76. The VAexaminer noted that none of Mr. Barr's medical recordswere available for review, but recounted his history ofonset during service, and treatment since that time. R. at75. The examiner did not offer an etiology opinion. A VAregional office (RO) denied the claim (R. at 79-80), andMr. Barr filed a Notice of Disagreement (R. at 82-83).

In December 1997, Mr. Barr submitted to VA a statementasserting that he filed his claim more than 30 years after hisservice because he “never had problems with the leg untilvery recent years” and because his “left leg has lookedlike hell since 1966, but, the pain has just started.” R. at88. He described the veins in his left leg as “erupting”during the summer of 1966, causing unsightly bulges fromabove his knee down to and including his foot. R. at 89.He stated that, while in service, he was a medical supplyclerk, and that his company included several doctorsand “experienced medical specialists” who, on severaloccasions, observed and considered his varicosities. Id. Hereported that another person in his company developedworse varicose veins and had them surgically stripped,but that the medical personnel who had observed hiscondition did not think he required medical treatment.Id. He also stated that he did not recall reporting tosick call “to file a formal complaint” because it wouldhave seemed odd to have done so after having discussedhis condition at length with the medical personnel withwhom he worked closely. Id. He reiterated these samecontentions in *306 more detail during a Board hearingin June 1997. R. at 114-32. At that time he also recountedseveral private physicians whom he had seen over theprevious 30 years for other conditions, to whom he hadmentioned his varicose veins. R. at 125-29.

In October 2001, the Board remanded the case anddirected the RO to (1) ensure compliance with all VAnotification requirements; (2) request that Mr. Barridentify all VA and non-VA medical treatment providersand authorize VA to attempt to obtain pertinent treatmentrecords; and (3) “specifically instruct [ ] [Mr. Barr] to

submit competent evidence to support his assertions thathe had developed varicose veins during service.” R. at137-38. The RO sent Mr. Barr a letter in November 2001with the stated purpose, inter alia, of advising him of“what evidence is necessary to establish entitlement to thebenefit you want.” R. at 141. The letter referred to Mr.Barr's claim for service connection for varicose veins andstated that in order to establish entitlement the evidencemust show (1) an injury or disease that began or wasmade worse in service, or an event in service causing injuryor disease; (2) a current disability; and (3) a relationshipbetween the current disability and an injury, disease, orevent in service. R. at 141-42. The letter requested that Mr.Barr sign enclosed medical authorization forms to enableVA to contact the healthcare providers he had previouslyreferred to and attempt to obtain any relevant medicalrecords. Id. Finally, the letter also advised Mr. Barr to“submit competent evidence to support [his] assertionsthat [he] developed varicose veins during service.” R. at143. The record does not demonstrate that Mr. Barrresponded to that November 2001 notice. Following anOctober 2003 Supplemental Statement of the Case (R. at146-65), the Board issued the decision here on appeal.

In denying Mr. Barr's claim, the February 17, 2004,Board initially found that VA had complied with allVCAA notification requirements. R. at 6. The Boardthen determined that the preponderance of the evidencewas against the claim for service connection. The Boardconsidered the January 1997 diagnosis of varicose veins,but found: “[T]he medical evidence does not show thathis currently demonstrated varicose veins were presentin service or for many years thereafter or that anysuch current disability was caused by any incident orevent in service.” R. at 8-9. The Board considered Mr.Barr's testimony regarding the onset of his condition,but denied the claim for lack of evidence in supportof those assertions. See R. at 9 (“The service medicalrecords do not serve to confirm the onset of varicoseveins ... [and he] has submitted no competent evidenceto show that the varicose veins are due to disease orinjury in service ... [nor] has [he] submitted ... evidenceto support these assertions.... [The] Board has consideredthe veteran's arguments, particularly in regard to theonset of his current disability. However, the veteran isa layman and not competent to offer an opinion as toquestions involving medical diagnosis or causation aspresented in this case.”). The Board concluded that therecord contains “no convincing evidence that the veteran's



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currently demonstrated varicose veins had their clinicalonset in service.” Id. This appeal followed.

II. SERVICE CONNECTION ANDCONTINUITY OF SYMPTOMATOLOGY

A. Arguments of the Parties

Mr. Barr argues that reversal of the Board's decision isappropriate because his statements from 1996 forwardconstitute a *307 “noting” that his varicose veinsstarted in service and have persisted continuously since1966, and thus provide competent evidence of continuityof symptomatology entitling him to service connectionpursuant to 38 C.F.R. § 3.303(b) (2006) and Savagev. Gober, 10 Vet.App. 488 (1997). As a basis for thatassertion, he avers that varicose veins are a conditioncapable of lay observation, and therefore, the Board erredwhen it rejected his lay statements as not competent anddenied the claim based on a lack of supporting medicalevidence. He further contends that the Board erred whenit failed to provide an adequate statement of reasonsor bases for its determination that “ ‘the evidence ofrecord does not support his assertions of having had ... acontinuity of symptomatology.’ ” Appellant's Brief (Br.)at 7-8 (quoting R. at 9).

In response, the Secretary argues that Savage doesnot support Mr. Barr's claim because, although a layperson is competent to describe observations regardingveins, an interpretation of whether those symptomsamount to a diagnosis of varicose veins requires medicalexpertise. Secretary's (Sec'y) Br. at 8-9. He furthercontends that, even assuming Mr. Barr is competent todiagnose varicose veins, the 27-year hiatus between Mr.Barr's separation examination from service and his firstdiagnosis of varicose veins gave the Board a plausiblebasis to conclude that “ ‘the evidence of record does notsupport his assertions of having had related in[-]servicemanifestations or a continuity of symptomatology ortreatment thereafter.’ ” Id. at 8 (quoting R. at 9).

B. Law

[1] [2] Establishing service connection generally requires(1) medical evidence of a current disability; (2) medical

or, in certain circumstances, lay evidence of in-serviceincurrence or aggravation of a disease or injury; and(3) medical evidence of a nexus between the claimedin-service disease or injury and the present disability.See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'dper curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see alsoHickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R.§ 3.303. Under § 3.303(b), and of relevance here, analternative method of establishing the second and/or thirdCaluza element is through a demonstration of continuityof symptomatology. See Savage, 10 Vet.App. at 495-97;see also Clyburn v. West, 12 Vet.App. 296, 302 (1999).Continuity of symptomatology may be established if aclaimant can demonstrate (1) that a condition was “noted”during service; (2) evidence of postservice continuityof the same symptomatology; and (3) medical or, incertain circumstances, lay evidence of a nexus between thepresent disability and the postservice symptomatology.Savage, 10 Vet.App. at 495-96; see Hickson, 12 Vet.App.at 253 (lay evidence of in-service incurrence sufficientin some circumstances for purposes of establishingservice connection); 38 C.F.R. § 3.303(b). The Board'sdetermination on continuity of symptomatology is afinding of fact reviewed by this Court under the “clearlyerroneous” standard of review. Savage, 10 Vet.App. at496.

[3] Significant in our caselaw is that lay persons arenot competent to opine as to medical etiology or rendermedical opinions. See Grover v. West, 12 Vet.App.109, 112 (1999); Espiritu v. Derwinski, 2 Vet.App. 492,494 (1992). Lay testimony is competent, however, toestablish the presence of observable symptomatologyand “may provide sufficient support for a claim ofservice connection.” Layno v. Brown, 6 Vet.App. 465,469 (1994); see also Falzone v. Brown, 8 Vet.App. 398,405 (1995) (lay person competent to testify to pain andvisible flatness of his feet); *308 Espiritu, 2 Vet.App.at 494-95 (lay person may provide eyewitness accountof medical symptoms). The Court has emphasized that“symptoms, not treatment, are the essence of any evidenceof continuity of symptomatology.” Savage, 10 Vet.App. at496 (citing Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991)).Once evidence is determined to be competent, the Boardmust determine whether such evidence is also credible.See Layno, supra (distinguishing between competency(“a legal concept determining whether testimony maybe heard and considered”) and credibility (“a factual




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determination going to the probative value of the evidenceto be made after the evidence has been admitted”)).

In Savage, the Court considered when and how acondition could be “noted” in service. There the veteranhad presented postservice testimony regarding an in-service fall that had caused him to limp since service.Savage, 10 Vet.App. at 496-97. The Court held thatif the condition was one “as to which a lay person'sobservation is competent,” medical evidence of “noting”was not necessarily required. Id. at 497. Presuming Mr.Savage's testimony regarding his in-service fall credible,the Court held sworn testimony alone sufficient toestablish an in-service “noting,” and that no specific in-service medical notation, let alone diagnosis, was required.Id. (holding veteran's statements, “in and of themselves,sufficient to show continuity of symptomatology” forwell-groundedness purposes). The Savage Court wenton to hold, however, that notwithstanding the veteran'sshowing of postservice symptomatology, the questionof whether his arthritis was related to his in-servicefall was a question of etiology requiring medicalexpertise. Id. at 497-98; see also Clyburn, 12 Vet.App.at 301 (recognizing medical evidence is not required todemonstrate relationship between present disability andcontinuity of symptomatology if conditions are suchthat lay person's observations are competent, but findingMr. Clyburn “not competent to testify to the fact thatwhat he experienced in service and since service is thesame condition he is currently diagnosed with,” whenclaim was for service connection for knee condition andCourt was presented only with evidence of in-service kneeproblems, current diagnosis of chondromalacia patellae ordegenerative joint disease, and veteran's lay testimony ofnexus).

C. Analysis

The type of evidence that will suffice to demonstrateentitlement to service connection, and the determinationof whether lay evidence may be competent to satisfy anynecessary evidentiary hurdles, depends on the type ofdisability claimed. See Falzone, 8 Vet.App. at 406. Thus,to address the parties arguments here, the Court mustdetermine whether (1) varicose veins is a condition that alay person is competent to identify, and (2) if so, whetherthe Board erred in its adjudication and considerationof the evidence in support of Mr. Barr's claim. For the

following reasons, we hold that the answer to both of thesequestions is yes.

1. Lay Observations and Varicose Veins

[4] The Secretary argues, and the Board implicitlyheld, that the presence of varicose veins is a medicaldetermination that must be supported by competentevidence, beyond that which may be offered by laytestimony. Because of the unique nature of varicoseveins, we disagree. Varicose veins are “[e]longated,dilated, tortuous superficial veins (usually in the legs)whose valves have become incompetent, permittingreversed flow in the dependent position.” THE MERCKMANUAL 590 (16th ed.1992) [hereinafter MERCK];see also DORLAND'S ILLUSTRATED MEDICALDICTIONARY 2008 (30th ed.2003) [hereinafter *309DORLAND'S] (defining “varicose veins” as veinsthat are “unnaturally and permanently distended”);WEBSTER'S MEDICAL DESK DICTIONARY 751(1986) [hereinafter WEBSTER'S] (defining “varicose” as“abnormally swollen or dilated” and “varicose vein” as“an abnormal swelling or tortuosity ... of a superficialvein of the legs”). MERCK further states: “The patientusually makes the diagnosis of varicose veins, but theirextent is usually greater than can be determined bysimple inspection and can be judged accurately only bypalpitation with the patient standing.” MERCK at 590.As to symptoms, MERCK states: “Initially, superficialveins are tense and may be palpitated but are notvisible. Subsequently, they become visibly dilated andtortuous; the diagnosis is then obvious to the patient.” Id.“Varicose veins are incurable irrespective of the methodof treatment.” Id. at 592. Once service connected, varicoseveins are rated pursuant to Diagnostic Code (DC) 7120,which, inter alia, assigns a noncompensable rating for“asymptomatic palpable or visible varicose veins,” and a10% disability rating for “intermittent edema ... or achingand fatigue in leg after prolonged standing or walking,with symptoms relieved by elevation ... or compressionhosiery.” 38 C.F.R. § 4.104, DC 7120 (2006).

“As a general matter, in order for any testimony to beprobative of any fact, the witness must be competentto testify as to the facts under consideration.” Layno, 6Vet.App. at 469 (citing Espiritu, supra ). In Falzone, theCourt stated that the veteran's description of his flat feetwas not a determination that was “medical in nature”










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and, therefore, lay testimony may “suffice by itself” toshow the presence of such condition. 8 Vet.App. at 405-06;see Layno, supra (lay evidence is competent to establishfeatures or symptoms of injury or illness); see also Charlesv. Principi, 16 Vet.App. 370, 374 (2002) (appellant iscompetent to testify concerning symptoms capable of layobservation). But see Epps v. Brown, 9 Vet.App. 341,344 (1996), aff'd, 126 F.3d 1464 (Fed.Cir.1997) (requiringmedical evidence to show that skin condition causedblood clots that ultimately resulted in heart condition).Similarly, the Court has found a veteran competentto testify as to a condition within his knowledge andpersonal observation. See Bruce v. West, 11 Vet.App. 405,410-11 (1998) (finding veteran competent to describe dry,itchy, scaling skin). But see Layno, supra (cautioning thatlay testimony that veteran suffered a particular illness(bronchial asthma) was not competent evidence becausematter required medical expertise).

We conclude here that a lay person is competentto identify veins that are unnaturally distended orabnormally swollen and tortuous. See WEBSTER'S andDORLAND'S, both supra. Although the symptoms of theinitial stage of varicose veins (which MERCK identifiesas exhibiting tense superficial veins) do not appear to becapable of lay observation, we conclude that veins thathave become visibly tortuous or dilated are observableand identifiable by lay people. We further hold thatbecause varicose veins may be diagnosed by their uniqueand readily identifiable features, the presence of varicoseveins is not a determination “medical in nature” and iscapable of lay observation. See Falzone, supra; MERCKat 590 (“[T]he diagnosis [of varicose veins] is then obviousto the patient.”).

2. Board's Varicose-Veins-Merits Determination

[5] In concluding that the preponderance of the evidencewas against the claim, the Board stated that Mr. Barrhad submitted “no competent evidence” of in-serviceincurrence of his varicose veins. R. at *310 8-9. TheBoard repeatedly emphasized that the lack of medicalevidence and lack of support or confirmation of Mr.Barr's assertions was fatal to the claim. Id. In light of ourholding that a lay person may be competent to observevaricose veins, the Board's reasoning for denying the claimis flawed. See Buchanan v. Nicholson, 451 F.3d 1331, 1335

(Fed.Cir.2006) (stating “competent lay evidence can besufficient in and of itself” to obtain disability benefits).

Mr. Barr testified repeatedly during the adjudication ofhis claim that the onset of his varicose vein conditionoccurred in service and that he has suffered from thatcondition continuously since then. See R. at 75, 88-89,115-30. The Board determined that Mr. Barr was notcompetent to provide such evidence. See R. at 9 (veteran“has submitted no competent evidence” of continuityof symptomatology). Although the Board would havebeen within its province to have weighed that testimonyand to have made a credibility determination as towhether that evidence supported a finding of serviceincurrence and continuity of symptomatology sufficient toestablish service connection, the Board erred in outrightrefusing to consider it as competent. See Buchanan, 451F.3d at 1337 (“Board, as fact finder, is obligated to,and fully justified in, determining whether lay evidenceis credible in and of itself, i.e., because of possiblebias, conflicting statements, etc.”); see also McLendonv. Nicholson, 20 Vet.App. 79, 84 (2006) (when subjectis one to which lay person is “competent” to testify,such “testimony can be rejected only if found to bemistaken or otherwise deemed not credible”); Layno,supra. In essentially dismissing Mr. Barr's assertions asnot competent, the Board committed prejudicial error infailing to adequately consider material evidence favorableto the claim. See Caluza, 7 Vet.App. at 506 (Board mustprovide reasons for its rejection of any material evidencefavorable to claimant); see also Gutierrez v. Principi, 19Vet.App. 1, 9 (2004) (finding Board's reasoning flawedwhen it failed to discuss adequately evidence in supportof claim); 38 U.S.C. § 5103A(d)(2) (Secretary must takeinto consideration all lay or medical evidence of record,including statements of claimant); 38 C.F.R. § 3.303(a).

Accordingly, for this reason combined with the othererrors addressed below, the Board's decision will bevacated, and the matter remanded for readjudication. Onremand, the finder of fact must consider the credibility andweight of Mr. Barr's statements, and any other competentlay or medical evidence submitted, to determine whetherhe is entitled to service connection based on continuity ofsymptomatology. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R.§ 3.303(b). As emphasized in Buchanan, the Board maynot reject as not credible any uncorroborated statementsmerely because the contemporaneous medical evidenceis silent as to complaints or treatment for the relevant








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condition or symptoms. See Buchanan, 451 F.3d at1336-37; see also McLendon, 20 Vet.App. at 84 (statingthat competent testimony “can be rejected only if found tobe mistaken or otherwise deemed not credible, a findingthe Board did not make and the Court cannot make in thefirst instance”).

III. ADEQUACY OF MEDICAL EXAMINATION

[6] The Secretary has a duty to assist claimants and must“make reasonable efforts to assist a claimant in obtainingevidence necessary to substantiate the claimant's claim fora benefit.” 38 U.S.C. § 5103A(a)(1). As a part of his dutyto assist claimants, the Secretary must provide a medicalexamination or obtain a medical opinion “when such anexamination *311 or opinion is necessary to make adecision on the claim.” 38 U.S.C. § 5103A(d)(1). A medicalopinion is adequate when it is based upon consideration ofthe veteran's prior medical history and examinations andalso describes the disability in sufficient detail so that theBoard's “ ‘evaluation of the claimed disability will be afully informed one.’ ” Ardison v. Brown, 6 Vet.App. 405,407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121,124 (1991)).

[7] The record supports Mr. Barr's argument that theJanuary 1997 VA examination report upon which theBoard relied was inadequate because the VA examinerfailed to review Mr. Barr's prior medical records and didnot provide an opinion as to whether Mr. Barr's varicoseveins were related to service. The examiner explicitlystated that he did not have the claims file to review. R.at 75. It is well established in the Court's jurisprudencethat a thorough medical examination is one that “takesinto account the records of prior medical treatment, sothat the evaluation of the claimed disability will be a fullyinformed one.” Green, 1 Vet.App. at 124; see also Coxv. Nicholson, 20 Vet.App. 563, 568-69 (2007); 38 C.F.R.§ 4.1 (2006). Further, we note that the VA examiner didnot indicate whether he considered Mr. Barr's assertionsof continued symptomatology. Cf. Ardison, 6 Vet.App.at 407 (opinion is adequate when based on considerationof veteran's prior medical history and examinations andalso describes disability in sufficient detail so that Board'sevaluation will be fully informed). For these reasons, theBoard erred.

Further, the Secretary appears to argue that anyinadequacy in the January 1997 examination wasnonprejudicial because the Secretary had no duty toprovide the examination in the first instance when therewas no medical evidence showing varicose veins in service,and because the Board rejected Mr. Barr's claimed historyof continuity of symptomatology. For the reasons thatfollow, this argument is not persuasive.

First, the Board never rendered a finding that a medicalexamination was not warranted and the Secretary'sargument that it was not needed is rejected as posthoc rationalization. See Martin v. Occupational Safety& Health Review Comm'n, 499 U.S. 144, 156, 111 S.Ct.1171, 113 L.Ed.2d 117 (1991) ( “ ‘Litigating positions'are not entitled to deference when they are merelyappellate counsel's ‘post hoc rationalizations' for agencyaction, advanced for the first time in the reviewingcourt.”). Further, once the Secretary undertakes the effortto provide an examination when developing a service-connection claim, even if not statutorily obligated to doso, he must provide an adequate one or, at a minimum,notify the claimant why one will not or cannot beprovided. See Daves v. Nicholson, 21 Vet.App. 46, 52(2007) (“Due process requires the Secretary to notify theclaimant prior to the adjudication of the claim of hisinability to obtain evidence he has undertaken to obtain,so that the claimant has a fair and reasonable opportunityto try and secure it or procure alternative evidence at atime when such information will be most useful to theadjudicator.”); Sanders v. Principi, 17 Vet.App. 232 (2003)(highlighting veteran-friendly nature of VA adjudicationprocess, and stating that when hearing examiner promiseda medical examination but VA did not provide one, Boardmust explain in its decision why it “would not or neednot provide the promised examination”); see also Stegallv. West, 11 Vet.App. 268, 270-71 (1998) (remandingwhere VA examination was “inadequate for evaluationpurposes”); Hicks v. Brown, 8 Vet.App. 417, 422 (1995)(concluding that inadequate *312 medical evaluationfrustrates judicial review). Even assuming, arguendo, thata VA medical examination was not required by law in thiscase, because VA undertook to provide one, the Boarderred in failing to ensure it was adequate or to otherwisenotify Mr. Barr as discussed above.

IV. REMEDY




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[8] Although Mr. Barr argues for reversal, remand isthe appropriate remedy where the Board has incorrectlyapplied the law or failed to provide an adequate statementof reasons or bases for its determinations. Tucker v. West,11 Vet.App. 369, 374 (1998). This is not a situation wherethe only permissible view of the evidence is contrary tothe Board's decision. See Johnson v. Brown, 9 Vet.App.7, 10 (1996). Accordingly, because VA must make thecredibility determinations necessary to resolve Mr. Barr'sservice-connection claim, remand, as opposed to reversal,is the appropriate remedy. See Gutierrez, 19 Vet.App. at10. During remand, any issues surrounding notice and theapplication of the correct law may be raised. Therefore,we need not address here Mr. Barr's arguments concerningthe Secretary's compliance with his notification duties.Mahl v. Principi, 15 Vet.App. 37 (2001) (Court will rarelyaddress issues unnecessary to its decision). Further, onremand Mr. Barr may present additional evidence andargument in support of his claim, and the matter is to be

provided expeditious treatment. See 38 U.S.C. §§ 5109B,7112; Kay v. Principi, 16 Vet.App. 529, 534 (2002). Inadjudicating Mr. Barr's claim, VA must give considerationas to whether continuity of symptomatology is to bepresumed based on the unique nature of varicose veins.See MERCK at 592 (“Varicose veins are incurableirrespective of the method of treatment.”)

V. CONCLUSION

The Board's February 17, 2004, decision is VACATED,and the matter is REMANDED for further adjudicationconsistent with this opinion.

All Citations

21 Vet.App. 303









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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

RULES OF PRACTICE

Federal Rules of Appellate Procedure

Federal Circuit Rules Practice Notes

Federal Circuit Attorney Discipline Rules Federal Circuit Forms

December 1, 2018 Washington, DC

www.cafc.uscourts.gov

Incorporating amendments to the Federal Rules of Appellate Procedure Appellate Rules 8, 11, 25, 26, 28.1, 29, 31, 39, and 41 and Federal Circuit Rules 25, 28, 29, 30, 31, 32, and 44.

Federal Circuit Rules of Practice (December 1, 2018) Page i

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Circuit Justice The Chief Justice

Chief Judge Hon. Sharon Prost

Circuit and Senior Circuit Judges Hon. Pauline Newman

Hon. Haldane Robert Mayer

Hon. S. Jay Plager

Hon. Alan D. Lourie

Hon. Raymond C. Clevenger, III

Hon. Alvin A. Schall

Hon. William C. Bryson

Hon. Richard Linn

Hon. Timothy B. Dyk

Hon. Kimberly A. Moore

Hon. Kathleen M. O’Malley

Hon. Jimmie V. Reyna

Hon. Evan J. Wallach

Hon. Richard G. Taranto

Hon. Raymond T. Chen

Hon. Todd M. Hughes

Hon. Kara F. Stoll

Federal Circuit Rules of Practice (December 1, 2018) Page ii

Circuit Executive and Clerk of Court Peter R. Marksteiner

Officers of the Court and Senior Staff

J. Douglas Steere General Counsel and Senior Staff

Attorney

Jarrett B. Perlow Chief Deputy Clerk

Marilyn Wennes Senior Technical Assistant

Dale Bosley Operations and Administrative Services

John D. Moore Circuit Librarian

Riley Toussaint Acting Director of Information

Technology

Advisory Council Members Carter G. Phillips, Chair

Hon. Leonard Davis (Retired) Tara D. Elliott David Folsom

Michael R. Franzinger Martin F. Hockey, Jr.

Hon. James F. Holderman (Retired)

Matthias Kamber Deanna Tanner Okun

Kevin Parton Adam R. Shartzer

Robert L. Stoll David O. Taylor

ex officio

Peter R. Marksteiner J. Douglas Steere

James E. Brookshire Robert K. Huffman

George F. Hutchinson Scott M. McCaleb

Deborah Miron Michael J. Schaengold

Federal Circuit Rules of Practice (December 1, 2018) Page iii

Table of Contents (click to move to the section)

Table of Contents .......................................................................................................... iii

Foreword ...................................................................................................................... vii

Title I – Applicability of Rules ...................................................................................... 1

Federal Rule of Appellate Procedure 1 .............................................................. 1

Federal Circuit Rule 1 ........................................................................................ 1


Title II – Appeal from a Judgment or Order of a District Court ................................. 4


Federal Circuit Rule 3 ........................................................................................ 6


Federal Circuit Rule 4 ...................................................................................... 13

Federal Rule of Appellate Procedure 5 ............................................................ 15







Federal Rule of Appellate Procedure 10 .......................................................... 23

Federal Circuit Rule 10 .................................................................................... 26





Federal Rule of Appellate Procedure 12.1 ....................................................... 34

Title III – Appeals from the United States Tax Court ............................................... 35



Federal Circuit Rules of Practice (December 1, 2018) Page iv

Title IV – Review or Enforcement of an Order of an Administrative Agency, Board, Commission, or Officer ................................................................................................ 36



Federal Rules of Appellate Procedure 15.1 ...................................................... 44









Title V – Extraordinary Writs ..................................................................................... 55



Title VI – Habeas Corpus; Proceedings In Forma Pauperis ...................................... 59





Title VII – General Provisions .................................................................................... 63





Federal Rule of Appellate Procedure 26.1 ....................................................... 80

Federal Circuit Rule 26.1 ................................................................................. 81





Federal Rule of Appellate Procedure 28.1 ..................................................... 104

Federal Circuit Rules of Practice (December 1, 2018) Page v

Federal Circuit Rule 28.1 ............................................................................... 107

Federal Rule of Appellate Procedure 29 ........................................................ 109

Federal Circuit Rule 29 .................................................................................. 112







Federal Rule of Appellate Procedure 32.1 ..................................................... 137
























Federal Circuit Rules of Practice (December 1, 2018) Page vi









Federal Circuit Rule 47.6................................................................................ 186




Federal Circuit Rule 47.10.............................................................................. 190










Federal Circuit Attorney Discipline Rules ............................................................... 198

Federal Circuit Forms ............................................................................................... 207

Federal Circuit Rules of Practice (December 1, 2018) Page vii

Foreword

This document contains the rules for proceedings in the United States Court of Appeals for the Federal Circuit. These rules include the Federal Rules of Appellate Procedure and the corresponding Federal Circuit Rules. The Federal Rules of Appellate Procedure appear on a shaded blue background for ease in distinguishing them from the Federal Circuit Rules that are on a white background. Certain provisions within the Federal Rules of Appellate Procedure are inapplicable to this court or have been replaced with information in the corresponding Federal Circuit Rule. Those inapplicable provisions are indicated in this document in strikethrough text.

Practice Notes following the various rules are in boxed informational sections. These Practice Notes discuss matters that are often asked of the Clerk’s Office staff or provide additional explanatory information concerning the related. Counsel may rely on the Practice Notice but they may not be used to avoid controlling statutes or rules.

The Federal Circuit Attorney Discipline Rules are included in this document. Other documents are available on the court’s website at www.cafc.uscourts.gov, include the Internal Operating Procedures, Electronic Filing Procedures (CM/ECF User’s Guide), Guide for Pro Se Petitioners and Appellants, Appellate Mediation Program Guidelines, Courtroom Decorum Policy, and downloadable Federal Circuit Forms.

Inquiries about the Rules of Practice may be made to the Clerk’s Office at 202-275-8000. Public access, e-mail and telephone hours for the Clerk’s Office are 8:30 a.m. to 4:30 p.m. (Eastern), Monday through Friday. Please refer to the court’s website for additional contact information for the Clerk’s Office and various filing resources, argument resources, electronic filing resources, and unrepresented filer resources developed by the Clerk’s Office that may be of assistance to you.

Comments on the Rules of Practice are welcome at any time. Please send comments to [email protected] or Clerk of Court, United States Court of Appeals for the Federal Circuit, 717 Madison Place, NW, Washington, DC 20439.

http://www.cafc.uscourts.gov/

http://www.cafc.uscourts.gov/rules-of-practice/internal-operating-procedures

http://www.cafc.uscourts.gov/sites/default/files/cmecf/ElectronicFilingProcedures.pdf


http://www.cafc.uscourts.gov/pro-se

http://www.cafc.uscourts.gov/mediation/mediation

http://www.cafc.uscourts.gov/mediation/mediation

http://www.cafc.uscourts.gov/argument/court-decorum

http://www.cafc.uscourts.gov/rules-of-practice/forms

http://www.cafc.uscourts.gov/contact/clerks-office

http://www.cafc.uscourts.gov/contact/clerks-office/filing-resources

http://www.cafc.uscourts.gov/argument/argument-resources

http://www.cafc.uscourts.gov/cm/ecf/case-management/electronic-case-files



(Return to Table of Contents)

Federal Circuit Rules of Practice (December 1, 2018) Page 1

Title I – Applicability of Rules

FEDERAL RULE OF APPELLATE PROCEDURE 1

Rule 1. Scope of Rules; Definition; Title

(a) Scope of Rules.

(1) These rules govern procedure in the United States courts of appeals.

(2) When these rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court.

(b) Definition.

In these rules, ‘state’ includes the District of Columbia and any United States commonwealth or territory.

(c) Title.

These rules are to be known as the Federal Rules of Appellate Procedure.

FEDERAL CIRCUIT RULE 1

Rule 1. Scope of Rules; Title

(a) Reference to District and Trial Courts and Agencies.

(1) The terms “district court” and “trial court” include:

(A) the United States district courts;

(B) the United States Court of International Trade;

(C) the United States Court of Federal Claims; and

(D) if applicable, the United States Court of Appeals for Veterans Claims.




(2) The term “agency” includes an administrative agency, board, commission, bureau, or officer of the United States, including each of the following:

(A) the Patent Trial and Appeal Board;

(B) the Director of the United States Patent and Trademark Office;

(C) the Trademark Trial and Appeal Board;

(D) the United States International Trade Commission;

(E) the Secretary of Commerce acting under U.S. note 6 to subchapter X of chapter 98 of the Harmonized Tariff Schedule of the United States (relating to importation of instruments or apparatus);

(F) the Secretary of Agriculture acting under 7 U.S.C. § 2461;

(G) the Merit Systems Protection Board;

(H) certain arbitrators;

(I) the Boards of Contract Appeals in federal agencies;

(J) the Secretary of Veterans Affairs acting under 38 U.S.C. § 502;

(K) the Equal Employment Opportunity Commission acting under 3 U.S.C. § 454;

(L) the Federal Labor Relations Authority acting under part D of subchapter II of chapter 5 of title 3;

(M) the Secretary of Labor or the Occupational Safety and Health Review Commission, under part C of subchapter II of chapter 5 of title 3;

(N) the Office of Compliance acting under 2 U.S.C. § 1407(a)(1);

(O) the Government Accountability Office Personnel Appeals Board; or

(P) the Bureau of Justice Assistance.




(b) Rules of the Court of International Trade, Court of Federal Claims, and Court of Appeals for Veterans Claims.

(1) Reference in these rules to the Federal Rules of Civil Procedure includes analogous rules of the Court of International Trade and the Court of Federal Claims.

(2) Reference in these rules to the Federal Rules of Civil Procedure includes rules of the Court of Appeals for Veterans Claims only where applicable, because that court’s rules are derived from the Federal Rules of Appellate Procedure.

(c) Title.

These rules are to be known as the Federal Circuit Rules.


Rule 2. Suspension of Rules

On its own or a party’s motion, a court of appeals may—to expedite its decision or for other good cause—suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).



Title II – Appeal from a Judgment or Order of a District Court


Rule 3. Appeal as of Right—How Taken

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).

(2) An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.

(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.

(4) An appeal by permission under 28 U.S.C. §1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.

(b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.




(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment, order, or part thereof being appealed; and

(C) name the court to which the appeal is taken.

(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.

(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.

(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party’s counsel of record—excluding the appellant’s—or, if a party is proceeding pro se, to the party’s last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries—and any later docket entries—to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.




(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.

(3) The district clerk’s failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party’s counsel.

(e) Payment of Fees.

Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.


Rule 3. Appeal as of Right – How Taken

(a) Opinion; Certified Copy of Docket Entries.

When a notice of appeal is filed, the trial court clerk of court must promptly send to this court’s clerk of court a copy of the opinion, if any, that accompanied the judgment or order being appealed. The trial court clerk of court must certify the copy of the docket entries and send it with the notice of appeal.

(b) Petition for Certification of Judgment of the High Court of the Trust Territory of the Pacific Islands.

A petition for certification of a judgment of the High Court of the Trust Territory of the Pacific Islands under the Compact of Free Association: Federated States of Micronesia, Republic of Marshall Islands, Title II, Title One, Article VII, § 174(c), and the Compact of Free Association: Palau, Title II, Title One, Article VII, § 174(c), in 48 U.S.C. § 1901 note and § 1931 note, must be filed with this court’s clerk of court, but otherwise is deemed to be an appeal from the judgment of a district court for purposes of these rules.



Practice Notes to Rule 3

FAILURE TO FILE A NOTICE OF APPEAL. Only a party that has filed a notice of appeal may attack all or any part of the trial court judgment. Any other party in the trial court not filing a notice of appeal may participate in the appeal as an appellee but may not seek to overturn or modify the judgment.

FEES. The fee schedule is set forth in Federal Circuit Rule 52. See also 28 U.S.C. § 1913, note 1 [Judicial Conference Schedule of Fees].

FILING AND DOCKETING AN APPEAL. An appeal is filed when the notice of appeal is received by the trial court. An appeal sent to this court by the trial court clerk of court is docketed when it is listed on the docket and assigned a docket number.

FILING AND DOCKETING APPEALS UNDER 15 U.S.C. § 3416(c) AND PETITIONS UNDER 42 U.S.C. § 300aa-12(f). Appeals under 15 U.S.C. § 3416(c) from the district courts and petitions under 42 U.S.C. § 300aa-12(f) from the Court of Federal Claims are filed in this court, unlike other appeals from those courts in which the notice of appeal is filed with the Clerks of those courts. However, once these appeals or petitions are filed in this court, they are forwarded to the Clerks of those courts with instructions to comply with Federal Rule of Appellate Procedure 3(d).




Rule 4. Appeal as of Right—When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf—including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.




(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

(B) (i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.




(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a




separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(c) Appeal by an Inmate Confined in an Institution.

(1) If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:

(A) it is accompanied by:

(i) a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or

(ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or




(B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court’s docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals.

If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.




Rule 4. Appeal as of Right – Untimely Notice

The United States Court of Appeals for the Federal Circuit cannot waive the untimely filing of a notice of appeal. The clerk may return a notice of appeal that is untimely on its face.


TIME TO APPEAL. The table below is provided only as a convenience for counsel, who should refer to the statutes and case law before determining the period available for taking an appeal. Counsel should also be aware of the district court’s authority under Federal Rule of Appellate Procedure 4 to extend or reopen the time for appeal.

COURT STATUTE TIME

District Courts 28 U.S.C. § 2107 30 days (60 days if U.S. is a party)

15 U.S.C. § 3416(c) 30 days

Court of International Trade

28 U.S.C. § 2645(c) 60 days

Court of Federal Claims Appeals 28 U.S.C. § 2522 60 days

Petitions 42 U.S.C. § 300aa-12(f)

60 days

Court of Appeals for Veterans Claims

38 U.S.C. § 7292 60 days




DUTY TO NOTIFY THE CLERK OF POSTJUDGMENT MOTIONS PENDING IN THE TRIAL COURT. Even though the district court clerk must forward copies of later docket entries under Federal Rule of Appellate Procedure 3(d), the appellant should promptly notify this court’s clerk if any party in the case files a motion listed in Federal Rule of Appellate Procedure 4(a)(4). Any other party may also notify the clerk in such a case. Upon receiving the appropriate docket entries from the district court, the clerk will deactivate the appeal. Deactivation of the appeal suspends all further action in the court of appeals. Upon reactivation of the appeal, the clerk will reschedule the next required filing and notify counsel.

EXPEDITED PROCEEDINGS. The overall time for an appeal can be accelerated by the expeditious filing of a notice of appeal shortly after entry of final judgment in the trial forum. When a party is considering seeking expedited proceedings on appeal, the party should consider filing its notice of appeal and initial brief well before the applicable deadlines. For further information on expedition procedures, see the Practice Note to Rule 27.




Rule 5. Appeal by Permission

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of appeals’ discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.

(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(C) the relief sought;

(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or memorandum, and

(ii) any order stating the district court’s permission to appeal or finding that the necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.




(3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.

(c) Form of Papers; Number of Copies; Length Limits.

All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case. Except by the court’s permission, and excluding the accompanying documents required by Rule 5(b)(1)(E):

(1) a paper produced using a computer must not exceed 5,200 words; and

(2) a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 14 days after the entry of the order granting permission to appeal, the appellant must:

(A) pay the district clerk all required fees; and

(B) file a cost bond if required under Rule 7.

(2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.

(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).




Rule 5. Appeal by Permission

(a) Petition.

A petition for permission to appeal must be accompanied by a copy of the docket entries in the trial court.

(b) Record; Certified Copy of Docket Entries.

In an allowed appeal, the trial court must retain the record as provided in Federal Rule of Appellate Procedure 11(e) and in Federal Circuit Rule 11(a). The trial court clerk of court must send a certified copy of the docket entries instead of the record.

(c) Filing.

For information concerning how to file a petition for permission to appeal, which is a case-initiating document, see Federal Circuit Rule 25.

Practice Note to Rule 5

CASE INITIATION. The court’s case management/electronic case filing system (CM/ECF) provides for submission of case opening materials in cases in which parties are represented by counsel and requires payment of fees using pay.gov. Requirements are included in the court’s electronic case filing User Guide (www.cafc.uscourts.gov).





Rule 6. Appeal in a Bankruptcy Case from a Final Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel


Rule 7. Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.


Rule 8. Stay or Injunction Pending Appeal

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a bond or other security provided to obtain a stay of judgment; or

(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.

(A) The motion must:




(i) show that moving first in the district court would be impracticable; or

(ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and

(iii) relevant parts of the record.

(C) The moving party must give reasonable notice of the motion to all parties.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other security in the district court.

(b) Proceeding Against a Security Provider.

If a party gives security with one or more security providers, each provider submits to the jurisdiction of the district court and irrevocably appoints the district clerk as its agent on whom any papers affecting its liability on the security may be served. On motion, a security provider’s liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district clerk, who must promptly send a copy to each security provider whose address is known.




(c) Stay in a Criminal Case.

Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case.


Rule 8. Stay or Injunction Pending Appeal

(a) Notice of Appeal; Trial Court’s Judgment or Order.

A motion for a stay or injunction pending appeal must be accompanied by:

(1) a copy of the notice of appeal that has been filed with the trial court clerk of court;

(2) a copy of the trial court’s judgment or order on the merits;

(3) a copy of any order on the motion for a stay or injunction pending appeal; and

(4) a certificate of interest.

(b) Length of Motion, Response, and Reply; Copies; Brief; Filing.

(1) A motion or a response to a motion for a stay or injunction pending appeal may not exceed 5,200 words if produced using a computer or 20 pages if handwritten or typewritten. A reply may not exceed 2,600 words if produced using a computer or 10 pages if handwritten or typewritten.

(2) No paper copies are required if the motion is filed by counsel through Electronic Case Filing (ECF). If the motion is filed by a pro se party, then one paper copy must be filed.

(3) A separate brief supporting a motion, response, or reply is not permitted.




(4) For information on filing a motion under this rule, when an appeal has been filed by the trial court but not yet docketed in this court, see the information in Federal Circuit Rule 25 and instructions on the court’s website for how to file a case-initiating document.

(c) Notice and Service When Requesting Immediate Action; Facsimile or Email.

(1) A party moving for a stay or injunction pending appeal who requests immediate action by the court must—before filing—notify all parties that a motion will be filed and must utilize an expedited method of service.

(2) If a motion for a stay or injunction pending appeal is sent to the court by facsimile or email transmission, which is only permitted under Federal Circuit Rule 25 for pro se parties who cannot file electronically through CM/ECF, opposing counsel must be served in the same manner. The filing must state the name, address, and, if applicable, the facsimile numbers or email addresses of the persons served.

(d) Statement.

If an initial motion for a stay or injunction pending appeal was not made in the district court under Federal Rule of Appellate Procedure 8(a)(1), movant must include in its motion in this court a statement explaining why it was not practicable to do so. If an initial motion for a stay or injunction pending appeal was made in the district court under Federal Rule of Appellate Procedure 8(a)(1) and remains pending, the movant must include in its motion in this court a statement specifically identifying when it filed the motion in the district court and why it is not practicable to await a ruling by the district court on that motion.





FORM REQUIREMENTS. See Federal Rule of Appellate Procedure 27(d) for form requirements concerning motions.

CERTIFICATE OF INTEREST. The format is found in Form 9.

CLERK’S OFFICE EMAIL. Email address ([email protected]) may only be used by pro se filers and only for submission under this Rule or Federal Rule of Appellate Procedure 8.


Rule 9. Release in a Criminal Case






Rule 10. The Record on Appeal

(a) Composition of the Record on Appeal.

The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.




(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 14 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and

(C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable.

If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal.

In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, it—together with any additions that the




district court may consider necessary to a full presentation of the issues on appeal—must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(C) by the court of appeals.

(3) All other questions as to the form and content of the record must be presented to the court of appeals.




Rule 10. The Record on Appeal

Delay in Preparing the Transcript. When a trial transcript is not filed in the trial court within 60 days after it was ordered, the clerk of court may direct the parties to proceed under Rule 10(c) or (d) of the Federal Rules of Appellate Procedure.


DAILY COPY. Using daily transcript copy in lengthy trial proceedings can reduce or eliminate appellate delay in awaiting transcription after trial.

PROCEDURES TO EXPEDITE DELIVERY OF TRANSCRIPTS. District courts and regional circuit councils have procedures to expedite transcripts that may be available to counsel experiencing difficulty with late delivery of transcripts by court reporters.




Rule 11. Forwarding the Record

(a) Appellant’s Duty.

An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk.

(B) If the transcript cannot be completed within 30 days of the reporter’s receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties.

(C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs.

(2) District Clerk’s Duty to Forward. When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.




(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal.

The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record.

(d) [Abrogated.]

(e) Retaining the Record by Court Order.

(1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.

(2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals.

(3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties.

(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties.

The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal.




(g) Record for a Preliminary Motion in the Court of Appeals.

If, before the record is forwarded, a party makes any of the following motions in the court of appeals:

• for dismissal;

• for release;

• for a stay pending appeal;

• for additional security on the bond on appeal or on a bond or other security provided to obtain a stay of judgment; or

• for any other intermediate order—

the district clerk must send the court of appeals any parts of the record designated by any party




Rule 11. Forwarding the Record

(a) Retaining the Record; Certified Copy of the Docket Entries; Physical Exhibits; Archival Storage.

(1) The district court clerk must:

(A) retain the assembled record unless this court, on motion or sua sponte, orders otherwise; and

(B) send to this court a certified copy of the docket entries instead of the record.

(2) Archival Storage. The district court clerk of court must not send the record to archival storage until this court issues its mandate.

(b) Access of Parties and Counsel to the Original Record.

(1) Material Not Subject to a Protective Order; Inspection and Copying. When a notice of appeal is filed, the trial court clerk of court must permit a party or counsel for a party to inspect and copy the nonconfidential original papers, transcripts, and exhibits to prepare the appendix. This inspection and copying is subject to reasonable regulation by the trial court.

(2) Material Subject to a Protective Order; Inspection and Copying. A party or counsel for a party must be permitted to inspect and copy material in the record governed by a protective order of the trial court in accordance with that order. If this court modifies or annuls the protective order, the access of a party or counsel is governed by the order of this court.




(c) Status of a Protective Order on Appeal.

In general, any portion of the record that was subject to a protective order in the trial court shall remain subject to that order on appeal. Material shall lose its status as subject to a protective order, however, if and when it has been removed from protected status under Federal Circuit Rule 30(h)(1)(B) or has appeared, without being marked confidential, in motion papers under Federal Circuit Rule 27 or a brief under Federal Circuit Rule 28 in this court. Federal Circuit Rules 27(m)(1) and 28(d)(1) tightly limit confidentiality markings in a motion, response, or reply and in a brief.

(d) Agreement by Parties to Modify a Protective Order; Certificate of Compliance.

If any portion of the record in the trial court is subject to a protective order and a notice of appeal has been filed, each party must promptly review the record to determine whether protected portions need to remain protected on appeal. If a party determines that some portions no longer need to be protected, that party must seek an agreement with the other party. Any agreement that is reached must be promptly presented to the trial court, which may issue an appropriate order. Whether or not an agreement is reached, each party must file a certificate of compliance no later than the time for filing the joint appendix stating it complied with this rule. This Federal Circuit Rule 11(d) does not apply in a case arising under 19 U.S.C. § 1516a, or to third-party information marked as confidential.

(e) Motion to Modify the Protective Order.

A party may move at any time in this court to modify a protective order to remove protection from some material or to include another person within its terms. This court may decide the motion or may remand the case to the trial court. This court, sua sponte, may direct the parties to show cause why a protective order should not be modified.




Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record

(a) Docketing the Appeal.

Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant, adding the appellant’s name if necessary.

(b) Filing a Representation Statement.

Unless the court of appeals designates another time, the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.

(c) Filing the Record, Partial Record, or Certificate.

Upon receiving the record, partial record, or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date.




Rule 12. Notice of Docketing.

The clerk of court must notify all parties of the date the appeal is docketed.


FILING AND DOCKETING AN APPEAL. An appeal is filed when the notice of appeal is received by the trial court. An appeal sent to this court by the trial court clerk of court is docketed when it is listed on the docket and assigned a docket number.

DATE OF DOCKETING. The date of docketing starts the time running for filing briefs. See Federal Circuit Rule 31(a).

REPRESENTATION STATEMENT. The requirements of Federal Rule of Appellate Procedure 12(b) are met by filing the entry of appearance and certificate of interest required under Federal Circuit Rules 47.3 and 47.4.

OFFICIAL CAPTION; PARTICIPATION IN THE APPEAL BY APPELLEES; CONSOLIDATION OF PREVIOUSLY CONSOLIDATED CASES AND CROSS-APPEALS. The clerk will provide the parties with the official caption in the case at the time of docketing. Any objection to the official caption should be made promptly. It is the court’s usual practice to include in the caption all parties that participated in the court below, even if they are no longer participating in the case on appeal. Parties included in the trial court title who have an adverse interest to the appellant but who are not cross-appealing will be deemed appellees. Parties permitted to intervene in the trial court as plaintiffs or defendants will be identified only as plaintiff or defendant to avoid confusion with any third party permitted to intervene in the appeal. An appellee desiring not to file a brief or join in another party’s brief must notify the clerk of court who will strike the party’s designation as an appellee from the official caption. An appeal in a case that was consolidated in the trial court will be docketed under the title used for the consolidated case. When more than one




party appeals from the same trial court case, the appeals or cross-appeals will be consolidated by the clerk of court. Other appeals may be consolidated on motion or by the court sua sponte.

TRANSFERRED APPEAL. An appeal transferred from another court will be given a new docket number and will be consolidated by the clerk of court with any previously docketed appeal from the same judgment or order.

FEDERAL RULE OF APPELLATE PROCEDURE 12.1

Rule 12.1 Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal

(a) Notice to the Court of Appeals.

If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue.

(b) Remand After an Indicative Ruling.

If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand.



Title III – Appeals from the United States Tax Court


Rule 13. Review of a Decision of the Tax Court


Rule 14. Applicability of Other Rules to the Review of a Tax Court Decision



Title IV – Review or Enforcement of an Order of an Administrative Agency, Board, Commission, or Officer


Rule 15. Review or Enforcement of an Agency Order

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order. If their interests make joinder practicable, two or more persons may join in a petition to the same court to review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the petition—using such terms as “et al.,” “petitioners,” or “respondents” does not effectively name the parties;

(B) name the agency as a respondent (even though not named in the petition, the United States is a respondent if required by statute); and

(C) specify the order or part thereof to be reviewed.

(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.

(4) In this rule “agency” includes an agency, board, commission, or officer; “petition for review” includes a petition to enjoin, suspend, modify, or otherwise review, or a notice of appeal, whichever form is indicated by the applicable statute.

(b) Application or Cross-Application to Enforce an Order; Answer; Default.

(1) An application to enforce an agency order must be filed with the clerk of a court of appeals authorized to enforce the order. If a petition is filed to review an agency order that the court may enforce, a party opposing the petition may file a cross-application for enforcement.




(2) Within 21 days after the application for enforcement is filed, the respondent must serve on the applicant an answer to the application and file it with the clerk. If the respondent fails to answer in time, the court will enter judgment for the relief requested.

(3) The application must contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief requested.

(c) Service of the Petition or Application.

The circuit clerk must serve a copy of the petition for review, or an application or cross-application to enforce an agency order, on each respondent as prescribed by Rule 3(d), unless a different manner of service is prescribed by statute. At the time of filing, the petitioner must:

(1) serve, or have served, a copy on each party admitted to participate in the agency proceedings, except for the respondents;

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or application to serve each respondent.

(d) Intervention.

Unless a statute provides another method, a person who wants to intervene in a proceeding under this rule must file a motion for leave to intervene with the circuit clerk and serve a copy on all parties. The motion—or other notice of intervention authorized by statute—must be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention.

(e) Payment of Fees.

When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the circuit clerk all required fee.




Rule 15. Review of an Agency Order – How Obtained

(a) Petition for Review or Notice of Appeal; Payment of Fees; Address and Telephone Number of Counsel or Pro Se Petitioner or Appellant; Number of Copies.

(1) From the Patent and Trademark Office. To appeal a decision of the Patent Trial and Appeal Board, the Trademark Trial and Appeal Board, or the Director under 15 U.S.C. § 1071(a), the appellant must file in the Patent and Trademark Office a notice of appeal within the time prescribed by law. Notwithstanding Rule 25(b)(1), the appellant must simultaneously send to the clerk of court one paper copy of the notice and pay the fee set forth in Federal Circuit Rule 52. The Director must promptly advise the clerk of court that the notice is or is not timely.

(2) From Another Agency.

(A) Except as provided in Federal Circuit Rule 15(a)(1), to petition or appeal from a decision or order of an agency, the petitioner must file a petition for review or notice of appeal with this court’s clerk of court within the time prescribed by law. Within 14 days of filing, the petitioner must pay the clerk of court the fee set forth in Federal Circuit Rule 52.

(B) A petition filed by the Director of the Office of Personnel Management must be filed as prescribed in Federal Circuit Rule 47.9.

(3) Address and Telephone Number of Counsel or Pro Se Petitioner or Appellant. Each petition for review or notice of appeal must contain the counsel’s—or the pro se petitioner’s or appellant’s—name, current address, email address, and telephone number.

(4) Copies. No additional paper copies are required to be filed with the court.

(b) Docketing Petition or Appeal; Notice of Docketing.

(1) Docketing Upon Receipt. In a petition for review or appeal from an administrative agency, the clerk of court will docket a timely appeal or petition upon receipt. Parties represented by counsel must file the




petition or appeal and pay any required fees through CM/ECF and pay.gov. Parties not represented by counsel must submit the petition or appeal in paper and pay the required fees by check within 14 days of docketing. Facsimile or email transmission is not permitted. Instructions for electronically filing case-initiating documents such as a petition or appeal are posted on the court’s website.

(2) Untimeliness. The agency may advise the clerk of court concerning the untimeliness of an appeal and the clerk may order the appellant to show cause why the appeal should not be dismissed and refer the appellant’s response to the court.

(3) Notice of Docketing. The clerk must notify all parties through CM/ECF of the date the appeal or petition for review is docketed.

(c) Statement Concerning Discrimination.

(1) Petitioner’s Statement. Within 14 days after a petition for review of a decision of the Merit Systems Protection Board or a decision of an arbitrator under 5 U.S.C. § 7121 is docketed, the petitioner must serve on the respondent and file with the clerk of court a statement whether or not a claim of discrimination by reason of race, sex, age, national origin, or handicapped condition has been or will be made in the case. See Form 10.

(2) Response When a Claim of Discrimination is Raised in a Motion or Brief. If the petitioner in a case described in Federal Circuit Rule 15(c)(1) files a motion or brief involving a claim of discrimination as to the case before the court, the respondent must state, in a responsive motion or brief, whether the respondent concurs or disagrees with the petitioner’s statement concerning discrimination and indicate whether or not the respondent believes that the court has jurisdiction over the petition for review, with reasons provided as necessary.

(d) Untimely Petition for Review or Notice of Appeal.

The clerk of court may return a petition for review or notice of appeal that is untimely on its face.






(e) Notice of Election Under 35 U.S.C. § 141 or 15 U.S.C. § 1071(a)(1).

A party filing a notice of election under 35 U.S.C. § 141 or 15 U.S.C. § 1071(a)(1) with the Director of Patents and Trademarks must file a copy of the notice with the clerk of court, and the clerk of court must dismiss the appeal.

(f) Judicial Review of Department of Veterans Affairs Rules and Regulations.

See Federal Circuit Rule 47.12.


TIME TO APPEAL OR PETITION. The table below is provided only as a convenience to counsel, who should refer to the statutes, rules, and case law before determining the period available for taking an appeal or filing a petition for review. Counsel should also note that the event that causes the period to run varies in each case.

AGENCY STATUTE TIME

Arbitrator 5 U.S.C. §§ 7121, 7703 60 days Merit Systems Protection

Board 5 U.S.C. § 7703 60 days

Government Accountability Office Personnel Appeals

Board

31 U.S.C. § 755 30 days

Patent Trial and Appeal Board; Trademark Trial

and Appeal Board; Director of Patents and Trademarks

35 U.S.C. § 142 15 U.S.C. § 1071

37 C.F.R. §§ 1.304, 2.145

2 months or 63 days

International Trade Commission

19 U.S.C. § 1337 60 days

Board of Contract Appeals 41 U.S.C. § 7107 120 days




AGENCY STATUTE TIME

Secretary of Agriculture 7 U.S.C. § 2461 60 days

Secretary of Veterans Affairs

38 U.S.C. § 502 Fed. Cir. R. 47.12(a)

60 days

Secretary of Labor; Occupational Safety and

Health Review Commission; Federal

Labor Relations Authority; certain Merit Systems

Protection Board cases and Equal Employment

Opportunity Commission cases

28 U.S.C. § 1296 30 days

Board of Directors, Office of Compliance

2 U.S.C. § 1407(c)(3) 90 days

Bureau of Justice Assistance

42 U.S.C. § 3796c-2 90 days

FILING IN THE PATENT AND TRADEMARK OFFICE. A notice of appeal mailed to the Patent and Trademark Office should be addressed:

Office of the Solicitor United States Patent and Trademark Office Mail Stop 8

Post Office Box 1450 Alexandria, Virginia 22313-1450

The general counsel requests that hand delivery, if any, be made between the hours of 8:30 a.m. and 5:00 p.m. to:

Office of the General Counsel Patent and Trademark Office

Madison East 10B20 600 Dulany Street

Alexandria, Virginia 22314

COPY OF DECISION OR ORDER. A party filing a petition for review or notice of appeal is urged to attach a copy of the decision or order of the agency for which review is sought.




INTERVENTION. A party with the right to appeal or to petition for review may not, instead of exercising that right, intervene in another appeal or petition to seek relief in its own cause. Because the United States or an agency of the United States is often the only appellee or respondent in cases under this rule, any other party seeking to intervene on the side of the appellee or respondent must move for leave to intervene within 30 days of the date when the petition for review or notice of appeal is filed. A motion for leave to intervene out of time will be granted only in extraordinary circumstances.

DISCRIMINATION STATEMENT. A discrimination statement form will be included in the docketing package provided to any petitioner seeking review of a decision of the Merit Systems Protection Board or an arbitrator. Failure to complete the discrimination statement will result in dismissal of the petition for review. See Form 10.

TIMELINESS. Except in inter partes appeals from decisions of the Patent Trial and Appeal Board or the Trademark Trial and Appeal Board, parties in agency proceedings do not have the 14-day “cross-appeal” period that Federal Rule of Appellate Procedure 4(a)(3) grants to parties appealing from trial courts. The court cannot waive the statutory time requirements for filing a petition for review or notice of appeal.

CONSOLIDATION. When more than one party files a petition for review or notice of appeal from the same decision or order, the parties should inform the clerk of court and the petitions or appeals may be consolidated and an adjusted briefing schedule may be issued.

ARBITRATION AWARDS IN THE UNITED STATES POSTAL SERVICE. These arbitration awards may not be appealed to this court.





PROPER GOVERNMENTAL PARTY IN APPEALS FROM BOARDS OF CONTRACT APPEALS. In appeals from the boards of contract appeals, the title of the head of the federal agency is listed in the caption along with the name of the agency he or she heads.

FILING AND DOCKETING A PETITION FOR REVIEW OR APPEAL. A petition for review or appeal is filed when the petition for review or notice of appeal is received by the court or, in the case of an appeal from the Patent and Trademark Office, when the notice of appeal is received by the Director of the United States Patent and Trademark Office. A petition for review or appeal is docketed when it is listed on the docket and assigned a docket number in CM/ECF.

JUDICIAL REVIEW OF DEPARTMENT OF VETERANS AFFAIRS RULES AND REGULATIONS. Federal Circuit Rule 47.12 governs actions for judicial review of Department of Veterans Affairs rules and regulations under 38 U.S.C. § 502. The procedures to be followed in such actions are the same as provided in this rule, except as provided in Federal Circuit Rule 47.12.

CHANGE OF HEAD OF AGENCY. In appeals in which the proper governmental party is the head of the agency, counsel for the government should promptly notify the clerk of court of any change that would affect the accuracy of the caption.

AGENCY. The term agency in these rules includes a board, commission, bureau, or arbitrator.




EXPEDITED PROCEEDINGS. The overall time for a review of an agency decision can be accelerated by the expeditious filing of a notice of appeal or petition for review shortly after entry of the reviewable agency order. When the appellant or petitioner is considering seeking expedited proceedings on appeal, the party should consider filing its notice of appeal or petition for review and initial brief well before the deadline for such actions. For further information on expedition procedures, see the Practice Notes to Rule 27.

FEDERAL RULES OF APPELLATE PROCEDURE 15.1

Rule 15.1 Briefs and Oral Argument in a National Labor Relations Board Proceeding




Rule 16. The Record on Review or Enforcement

(a) Composition of the Record.

The record on review or enforcement of an agency order consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the agency.

(b) Omissions From or Misstatements in the Record.

The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed.




Rule 17. Filing the Record

(a) Agency to File; Time for Filing; Notice of Filing.

The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed.

(b) Filing – What Constitutes.

(1) The agency must file:

(A) the original or a certified copy of the entire record or parts designated by the parties; or

(B) a certified list adequately describing all documents, transcripts of testimony, exhibits, and other material constituting the record, or describing those parts designated by the parties.

(2) The parties may stipulate in writing that no record or certified list be filed. The date when the stipulation is filed with the circuit clerk is treated as the date when the record is filed.

(3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.




Rule 17. Filing the Record

(a) Retaining the Record; Sending the Certified List.

The agency must retain the record and send to this court a certified list or index unless this court, on motion or sua sponte, orders otherwise.

(b) Certified List or Index.

(1) From the United States Patent and Trademark Office. No later than 40 days after receiving the notice of appeal, the Director must send to the clerk of court the certified list and a copy of the decision or order appealed. This constitutes compliance with the requirement of 35 U.S.C. § 143 and 15 U.S.C. § 1071(a)(3) for sending a certified record to the court.

(2) From Another Agency. No later than 40 days after the court serves a petition for review or notice of appeal on an agency, the agency must send to the clerk of court the certified list or index and a copy of the decision or order being appealed.

(3) Index of VA Rulemaking Record. In petitions for review under 38 U.S.C. § 502, if a petitioner has not adequately identified the rulemaking proceeding complained of, so that the Secretary of Veterans Affairs cannot send the certified list or index within the time provided in Federal Circuit Rule 17(b)(2), the Secretary must promptly move to waive or extend the time for filing the certified list or index.




(c) Service of Certified List or Index by Agency.

When an agency sends a certified list or index to the clerk of court, it must simultaneously serve a copy on the parties and provide a certificate of service to the clerk of court. Service must be made on counsel for the appellant or petitioner who has served the agency with a copy of an entry of appearance in this court; otherwise, service must be made on counsel who appeared before the agency or, if none, on the party. This service constitutes notice to the parties of the date the record was filed.

(d) Access of Parties and Counsel to Original Record.

(1) Material Not Subject to a Protective Order; Inspection and Copying. When a petition for review or notice of appeal is filed, the agency must permit a party or counsel for a party to inspect and copy the nonconfidential original papers, transcripts, and exhibits to prepare the appendix. This inspection and copying is subject to reasonable regulation by the agency.

(2) Material Subject to a Protective Order; Inspection and Copying. A party or counsel for a party must be permitted to inspect and copy material contained in the record governed by a protective order of an agency in accordance with that order. If this court modifies or annuls the protective order, the access of a party or counsel is governed by the order of this court.

(e) Status of a Protective Order on Appeal.

In general, any portion of the record that was subject to a protective order in an agency shall remain subject to that order on appeal. Material shall lose its status as subject to a protective order, however, if and when it has been removed from protected status under Federal Circuit Rule 30(h)(1)(B) or has appeared, without being marked confidential, in motion papers under Federal Circuit Rule 27 or a brief under Federal Circuit Rule 28 in this court. Federal Circuit Rules 27(m)(1) and 28(d)(1) tightly limit confidentiality markings in a motion, response, or reply and in a brief.




(f) Agreement by Parties to Modify Protective Order; Certificate of Compliance.

If any portion of the record in an agency is subject to a protective order and a petition for review or notice of appeal has been filed, each party must promptly review the record to determine whether protected portions need to remain protected on appeal. If a party determines that some portions no longer need to be protected, that party must seek an agreement with the other party. Any agreement that is reached must be promptly presented to the agency, which may issue an appropriate order. Whether or not an agreement is reached, each party must file a certificate of compliance no later than the time for filing the joint appendix stating it complied with this rule.

(g) Motion to Modify the Protective Order.

A party may move at any time in this court to modify a protective order to remove protection from some material or to include another person within its terms. This court may decide the motion or may remand the case to the agency. This court, sua sponte, may direct the parties to show cause why a protective order should not be modified.


TRANSCRIPT OF AGENCY PROCEEDING AT GOVERNMENT EXPENSE. These rules do not require an agency to provide a party with a written transcript at the agency’s expense. Any party seeking a written transcript of a hearing should direct the request to the agency, not the court.





Rule 18. Stay Pending Review

(a) Motion for a Stay.

(1) Initial Motion Before the Agency. A petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.

(2) Motion in the Court of Appeals. A motion for a stay may be made to the court of appeals or one of its judges.

(A) The motion must:

(i) show that moving first before the agency would be impracticable; or

(ii) state that, a motion having been made, the agency denied the motion or failed to afford the relief requested and state any reasons given by the agency for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and

(iii) relevant parts of the record.

(C) The moving party must give reasonable notice of the motion to all parties.

(D) The motion must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

(b) Bond.

The court may condition relief on the filing of a bond or other appropriate security.




Rule 18. Stay Pending Review

(a) Petition for Review or Notice of Appeal; Agency Order.

A petition for review or notice of appeal must be filed with this court before it will entertain a motion for a stay pending review. A motion for stay pending review must be accompanied by a copy of the agency decision on the merits and a copy of any agency order on the motion for a stay pending review.

(b) Length of Motion, Response, and Reply; Copies; Brief.

(1) A motion or a response to a motion for a stay pending review may not exceed 5,200 words if produced using a computer or 20 pages if handwritten or typewritten. A reply may not exceed 2,600 words if produced using a computer or 10 pages if handwritten or typewritten.

(2) No paper copies are required if the motion is filed by counsel through CM/ECF. If the motion is filed by a pro se party, then one paper copy must be filed.

(3) A separate brief supporting a motion, response, or reply is not permitted.

(4) For information on filing a motion along with a petition or appeal under this rule, see the information in Federal Circuit Rule 25 and instructions in the User’s Guide on the court’s website (www.cafc.uscourts.gov) for how to file a case-initiating document through CM/ECF.





(c) Notice and Service When Requesting Immediate Action; Facsimile or Email.

(1) A party moving for a stay pending review who requests immediate action by the court must – before filing – notify all parties that a motion will be filed and must utilize an expedited method of service.

(2) If a motion for stay pending review is sent to the court by facsimile or email transmission, which is only permitted under Federal Circuit Rule 25 for pro se parties who cannot file electronically through CM/ECF, a certificate of interest must be included and opposing counsel must be served in the same manner. The filing must state the name, address, and, if applicable, the facsimile numbers of the persons served.

(d) Statement.

If an initial motion for a stay pending review was not made in the agency under Federal Rule of Appellate Procedure 18(a), movant must include in its motion in this court a statement explaining why it was not practicable to do so. If an initial motion for a stay pending review was made in the agency under Federal Rule of Appellate Procedure 18(a) and remains pending, the movant must include in its motion in this court a statement specifically identifying when it filed the motion in the agency and why it is not practicable to await a ruling by the agency.


FORM REQUIREMENTS. See Federal Rule of Appellate Procedure 27(d) for form requirements concerning motions.

CERTIFICATE OF INTEREST. The form for the certificate of interest is found in Form 9.






CLERK’S OFFICE EMAIL. Email address ([email protected]) may only be used by pro se filers.


Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part

When the court files an opinion directing entry of judgment enforcing the agency’s order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment must within 10 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument.





Rule 20. Applicability of Rules to the Review or Enforcement of an Agency Order

All provisions of these rules, except Rules 3–14 and 22–23, apply to the review or enforcement of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee” includes a respondent.


Rule 20. Applicability of Rules to the Review of an Agency Order

All provisions of these Federal Circuit Rules, except Federal Circuit Rules 3-12, apply to the review of an agency order. In these Federal Circuit Rules, “appellant” includes a petitioner or applicant, and “appellee” includes a respondent.



Title V – Extraordinary Writs


Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

(2) (A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.



(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge.

(c) Other Extraordinary Writs.

An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b).

(d) Form of Papers; Number of Copies; Length Limits.

All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case. Except by the court’s permission, and excluding the accompanying documents required by Rule 21(a)(2)(C):

(1) a paper produced using a computer must not exceed 7,800 words; and

(2) a handwritten or typewritten paper must not exceed 30 pages.




Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

(a) Title; Fee; Answer.

(1) A petition for writ of mandamus or prohibition directed to a court or an agency must be entitled: “In Re [name of petitioner], Petitioner.”

(2) The petition must include a certificate of interest. An entry of appearance must accompany the petition, unless the petitioner is pro se.

(3) The petition must state the name, address, telephone number and, if applicable, facsimile number of each person served.

(4) The fee set forth in Federal Circuit Rule 52 must accompany the petition. For counsel who must file the petition through CM/ECF, see the information in Federal Circuit Rule 25 and instructions in the User’s Guide on the court’s website (www.cafc.uscourts.gov) for how to file a case-initiating document through CM/ECF and pay the fees through pay.gov.

(5) No answer may be filed by any respondent unless ordered by the court.

(b) Copies; Brief.

(1) If the petition is filed by a pro se party, then one paper copy is required. No paper copies are required if counsel files the petition through CM/ECF as a case-initiating document.

(2) A separate brief supporting or answering a petition is not permitted.

(3) No paper copies of a response or reply are required, if the response or reply is submitted through CM/ECF. If the respondent is pro se, then one paper copy of the response is required. If the petitioner is pro se, then one copy of the reply is required.





(c) Reply.

If the court directs the filing of a response to a petition, then the petitioner may file a reply. Unless otherwise ordered, the petitioner may file a reply within 7 days of the date of the filing of the response. The court may act on the petition before receipt of any reply, and thus the filing of a reply should be expedited if appropriate. The reply may not exceed 3,900 words if produced using a computer or 15 pages if handwritten or typewritten.

(d) Service of Order Denying Petition.

If the petition is denied, the petitioner must serve a copy of the order denying the petition on all persons served with the petition unless such a person has entered an appearance in the proceeding or has been sent a copy of the order by the clerk of court.



Title VI – Habeas Corpus; Proceedings In Forma Pauperis


Rule 22. Habeas Corpus and Section 2255 Proceedings


Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding


Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on appeal.

(2) Action on the Motion. If the district court grants the motion, the party may proceed on appeal without prepaying or giving security for fees and costs, unless a statute provides otherwise. If the district court denies the motion, it must state its reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case,




may proceed on appeal in forma pauperis without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or

(B) a statute provides otherwise.

(4) Notice of District Court’s Denial. The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(C) finds that the party is not otherwise entitled to proceed in forma pauperis.

(5) Motion in the Court of Appeals. A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule 24(a)(4). The motion must include a copy of the affidavit filed in the district court and the district court’s statement of reasons for its action. If no affidavit was filed in the district court, the party must include the affidavit prescribed by Rule 24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding.

A party may file in the court of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1):

(1) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency, board, commission, or officer proceeds directly in the court of appeals.




(c) Leave to Use Original Record.

A party allowed to proceed on appeal in forma pauperis may request that the appeal be heard on the original record without reproducing any part.


Rule 24. Proceeding in Forma Pauperis

(a) Form.

If an appeal or petition for review is docketed without payment of the docketing fee, the clerk of court in providing notice of docketing will forward to the appellant or petitioner the form prescribed by this court for the motion to proceed on appeal in forma pauperis. (See Form 6.) Except as provided in Federal Rule of Appellate Procedure 24(a), if the clerk of court does not receive a completed motion, the docketing fee, or a completed Form 6B within 14 days of the date of docketing of the appeal or petition, the clerk of court is authorized to dismiss the appeal or petition. See also Federal Circuit Rule 52(d).

The motion and affidavit may be made on the form provided in the Federal Rules of Appellate Procedure, but the court may request additional information from the movant.

(b) Supplemental Form.

If movant is incarcerated, in addition to Form 6 movant must file a supplemental form for prisoners, Form 6A.








DOCKETING FEE; TRANSCRIPT REQUEST. A party permitted to proceed in forma pauperis on appeal is not required to pay the docketing fee. Any request for a transcript of an agency proceeding at government expense is governed by agency regulations and must be directed to the agency.

PROCEEDING ON ORIGINAL RECORD. A request under Federal Rule of Appellate Procedure 24(c) that an appeal be heard on the original record is rarely granted because the available informal brief procedure permits an appendix consisting only of a copy of the decision or order sought to be reviewed. See Federal Circuit Rules 28(g); 30(i); 31(e); and 32(c). See Forms 11-16.

EFFECT OF PRISON LITIGATION REFORM ACT. Under the Prison Litigation Reform Act of 1995, a prisoner granted pauper status before the district court is not automatically entitled to pauper status on appeal. See 28 U.S.C. § 1915. A prisoner seeking to proceed in forma pauperis is directed to the Guide for Pro Se Petitioners and Appellants for further information.

USERRA CASES. In a petition for review of a Merit Systems Protection Board decision, a petitioner is not required to pay the docketing fee or costs if the case involved a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). 38 U.S.C. § 4323, 4324. A petitioner claiming exemption from the fee pursuant to USERRA should submit Form 6B within 14 days of the date of docketing of the petition and may be required to submit documentation that his or her case before the Board involved a USERRA claim.






Title VII – General Provisions



(a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals must be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) Nonelectronic Filing

(i) In General. For a paper not filed electronically, filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.

(ii) A Brief or Appendix. A brief or appendix not filed electronically is timely filed, however, if on or before the last day for filing, it is:

• mailed to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage prepaid; or

• dispatched to a third-party commercial carrier for delivery to the clerk within 3 days.

(iii) Inmate Filing. If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 25(a)(2)(A)(iii). A paper not filed electronically by an inmate is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:

• it is accompanied by: a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the




paper was so deposited and that postage was prepaid; or

• the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii).

(B) Electronic Filing and Signing.

(i) By a Represented Person – Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.

(ii) By an Unrepresented Person – When Allowed or Required. A person not represented by an attorney:

• may file electronically only if allowed by court order or by local rule; and

• may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.

(iii) Signing. A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.

(iv) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.

(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by a single judge, the judge may permit the motion to be filed with the judge; the judge must note the filing date on the motion and give it to the clerk.

(4) Clerk’s Refusal of Documents. The clerk must not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice.




(5) Privacy Protection. An appeal in a case whose privacy protection was governed by Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, or Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. In all other proceedings, privacy protection is governed by Federal Rule of Civil Procedure 5.2, except that Federal Rule of Criminal Procedure 49.1 governs when an extraordinary writ is sought in a criminal case.

(b) Service of All Papers Required.

Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party’s counsel.

(c) Manner of Service.

(1) Nonelectronic service may be any of the following:

(A) personal, including delivery to a responsible person at the office of counsel;

(B) by mail;

(C) by third-party commercial carrier for delivery within 3 days; or

(2) Electronic service of a paper may be made (A) by sending it to a registered user by filing it with the court’s electronic-filing system or (B) by sending it by other electronic means that the person to be served consented to in writing.

(3) When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete on filing or sending, unless the party making service is notified that the paper was not received by the party served.




(d) Proof of Service.

(1) A paper presented for filing must contain either of the following:

(A) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made service certifying:

(i) the date and manner of service;

(ii) the names of the persons served; and

(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk.

(3) Proof of service may appear on or be affixed to the papers filed.

(e) Number of Copies.

When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.





(a) Filing in General; Payment of Fees; Registration; Admission to Bar.

(1) Filing in General; Payment of Fees. Except as noted below, parties represented by counsel must submit all documents, including appeals and petitions when applicable, through Case Management/Electronic Case Filing (CM/ECF). Pro se parties must submit any documents in paper form, providing one copy to the court. Payment of any required fees must be made by counsel through pay.gov. Instructions are available on the court’s website concerning use of pay.gov. Payment of any required fees must be made by pro se parties through check or money order. See also Federal Circuit Rule 52. A User’s Guide for CM/ECF and instructions for the use of pay.gov are posted on the court’s website.

(2) Registration; Admission to Bar. Attorneys who appear before this court must register for the court’s CM/ECF system. Registration requirements are posted on the court’s website. Registration for CM/ECF is not a substitute for counsel’s application for admission to the bar or entry of appearance in a case. Applications for admission to the bar must be filed using the CM/ECF system by following the instructions posted on the court’s website.

(b) Case-initiating Documents.

Documents such as appeals filed directly with this court, petitions for review, petitions for writs of mandamus, and motions for stays or injunctions under Fed. R. App. P. 8 or 18, are considered case-initiating documents if the appeal or petition has not otherwise been opened.

(1) Submissions by Counsel. Case-initiating documents must be filed in Portable Document Format (PDF) by parties represented by counsel through CM/ECF and pay.gov. See the instructions on the court’s website for how to file a case-initiating document through CM/ECF and pay the fees through pay.gov. A case-initiating document is considered filed at the time and date registered by CM/ECF. No paper copy is required.

(2) Submissions by Pro Se Parties. Case-initiating documents submitted by pro se parties must be provided to the court in paper. Only one copy is required. The paper document must be served on











opposing counsel at the same time it is mailed or delivered to the court.

(c) All Other Documents.

(1) Submissions by Counsel. All other documents must be submitted in PDF through the court’s electronic filing system. A document filed electronically is deemed filed on the date and time stated on the Notice of Docket Activity from the court. Unless a time for filing is specified by the court, filing must be completed before midnight Eastern Time to be considered timely filed on that day.

For documents covered by this subsection (c)(1), counsel must not submit paper copies except as required by court order or by the following provisions.

(A) Briefs. In cases to be heard by a three-judge panel, six paper copies are required to be provided to the court within five business days of the court’s issuance of a notice requesting paper copies.

(B) Appendices. In cases to be heard by a three-judge panel, six paper copies are required to be provided to the court within five business days of the court’s issuance of a notice requesting paper copies.

(C) Petitions for Panel Rehearing. Three paper copies are required to be provided to the court within two business days of filing the petition through CM/ECF, unless otherwise ordered.

(D) Petitions for En Banc Hearing or Rehearing. Eighteen paper copies are required to be provided to the court within two business days of the filing of the petition through CM/ECF, unless otherwise ordered.

(E) Combined Petition for Panel Rehearing and Rehearing En Banc. Unless otherwise ordered, 18 paper copies are required to be provided to the court within two business days of the filing of the petition through CM/ECF.

(F) Briefs in En Banc Cases. If the court grants a petition for hearing en banc, unless otherwise ordered, 28 paper copies of all briefs and appendices shall be filed within five business days of




the court’s acceptance of the electronic brief. If the court grants a petition for rehearing en banc, unless otherwise ordered, 28 paper copies of the original briefs and appendices (in cases where briefs were filed in CM/ECF prior to the court’s order granting an en banc rehearing) shall be filed within seven business days of the court’s order granting en banc rehearing. Additionally, if the court grants a petition for rehearing en banc, 28 paper copies of any ordered supplemental briefs, appendices, and amicus briefs must be filed within five business days of the court’s acceptance of the electronic brief or appendices. If a brief is accompanied by a motion for leave, paper copies of the motion shall also be submitted in the quantity required of the brief by this subsection.

(G) Confidential Versions. If confidential and nonconfidential versions of the briefs, appendices, or petitions were filed through CM/ECF, paper copies of only the confidential version(s) are required to be submitted to the court. One paper copy of the confidential version of any document submitted to the court through CM/ECF must be served on any party, whether that party is or is not represented by counsel, except if that party or its counsel has not been authorized access to the confidential information under a governing protective order. Electronic access to confidential versions of documents is restricted to the court only.

(H) Other Documents. Exhibits, attachments, or appendices that are not in a format that readily permits electronic filing—such as those which are illegible when scanned or which, because of their odd shape, are unable to be scanned—may be filed in paper form without leave of court. Counsel must then file electronically a Notice of Paper Filing. The party must serve documents filed pursuant to this subsection by providing two paper copies to all other parties. If such documents are submitted with a brief or appendix, then an original and six copies must be filed within five business days of electronic submission of the Notice of Paper Filing. For all other filings of documents that may not be scanned, an original and three copies must be filed.

(I) Motion for Exemption. A motion for exemption from the court’s CM/ECF requirements may be submitted in paper form. Only one paper copy is required. Upon a showing of good cause,




the court may exempt a party from CM/ECF requirements and authorize filing by means other than use of CM/ECF.

(J) Technical or System Failures. A CM/ECF filer whose filing is made untimely as the result of a technical or system failure may seek appropriate relief from the court, and must include in that submission a declaration or affidavit attesting to the filer’s failed attempts to file electronically.

(K) Corrected Versions. If a party has not yet filed paper copies of a document and that party has electronically filed a corrected version of that document, only paper copies of the corrected version must be provided to the court.

(L) Sanctions for Failure to Comply. Failure to comply with the court’s rules may result in dismissal of the appeal or other action as deemed appropriate by the court. For example, failure to timely provide the required paper copies of a brief or appendix may result in dismissal of the appeal or in the case proceeding solely on the appellant’s opening brief.

(2) Submissions by Pro Se Parties. All documents from pro se parties must be provided to the court in paper form. The court will scan the documents provided by the pro se parties and place them on the electronic docket. The court will discard other paper documents once they have been scanned and made a part of the official record unless the electronic file thereby produced is incomplete or of questionable quality in accordance with judiciary records management policies.

(A) Facsimile and Email Transmission. A motion, response to a motion, reply to a response, or letter may be filed by email or facsimile transmission if submitted by a pro se party. The certificate of service must state whether a copy has been served on all parties by email or facsimile transmission. No other document, including for example an appeal or petition, may be filed or served by email or facsimile. A petition or appeal submitted by a pro se party must be filed with the court by mail or delivery, and the court must receive the document by the due date.

(B) Copies. Unless otherwise ordered in a particular case, three paper copies of any briefs, appendices, or petition for rehearing must be submitted to the court by a pro se party on or before the




due dates provided in these rules. For all other documents, including for example motions or letters, only one paper copy is required.

(3) Entries by the Court. Unless otherwise provided, all orders, opinions, judgments, and other court-issued documents in cases maintained in the CM/ECF system will be issued electronically. Such issuance constitutes entry on the docket kept by the clerk of court. Electronic transmission of the Notice of Docket Activity constitutes any notice and service required by the court’s rules. Any document released electronically by the court without the original signature of a judge, clerk of court, or authorized court representative shall have the same force and effect as if signed. The clerk of court shall give notice in paper form to a person who is not an electronic filer.

(4) Review and Correction by the Clerk of Court. The clerk of court may require the filing of a corrected copy of any submission that fails to comply with the court’s rules or the Electronic Filing Procedures. If a party fails to file a timely corrected copy in response to a notice requiring correction from the clerk of court, the clerk of court may strike the non-compliant document from the docket. The clerk of court may also edit docket entries to correct or add text or attachments and any such revision will be identified on the docket.

(d) Format of Documents; Signatures.

Documents filed electronically and in paper must comply with the format requirements set forth in the Federal Rules of Appellate Procedure, the Federal Circuit Rules, and any other requirements established by the court or by the CM/ECF User Manual. Where the court’s rules require a signature on a document, the name of the filer whose log-in and password is used to submit a document may be preceded by “/s/” and typed in the space where the signature would otherwise appear.

(e) Service.

(1) Documents Submitted by Counsel. Registration as a CM/ECF filer constitutes consent to electronic service of all documents. If a document is filed by counsel through CM/ECF, the Notice of Docketing Activity generated by that filing constitutes service on opposing counsel. A certificate of service should indicate that the document was




served through CM/ECF. Service of a filing to an invalid email address constitutes valid service if the individual has failed to timely provide a current email address. If one of the other parties is proceeding pro se, then counsel must serve a paper copy of any document as provided in Federal Rules of Appellate Procedure 25(c), (d), and a certificate of service must be included to explain how service was achieved on the pro se party. If a document is filed and served electronically on a non-business day, timeliness and calculation of any responsive deadlines will begin on the next business day. Three additional days are NOT added to the time to file a responsive document because the court considers service by email through CM/ECF to be delivered when transmitted.

(2) Documents Submitted by Pro Se Parties. A copy of any document submitted to the court by a pro se party must be mailed, delivered or transmitted by the pro se party to all other parties as provided in Federal Rules of Appellate Procedure 25(c), (d). A certificate of service is required to be included with the document to explain how the document was provided to the other parties in the case. See Form 30.

(f) Privacy.

Unless ordered otherwise, all parties (including pro se parties) must refrain from including or must redact the following personal data identifiers from documents filed with the court: Social Security numbers; financial account numbers; names of minors (use instead the minor’s initials); dates of birth (use the year only); home addresses (use the city and state only). If a party refers to materials in appendices that a party determines for good reason and in compliance with court rules should not be made available to the public on the Internet through PACER, then two versions of the appendices must be filed: a nonconfidential public version with the sensitive materials redacted, and an unredacted confidential version of the full document. The responsibility for redacting restricted or sensitive materials from documents and assuring that all materials contained in the public version of documents rests solely with the parties and counsel. The clerk of court will not review documents filed for compliance with this requirement.





(g) Retention of Documents.

Documents that are electronically filed and require original signatures other than that of the CM/ECF filer (such as an affidavit signed by a person other than the CM/ECF filer) must be maintained in paper form by the CM/ECF filer until the case is terminated with finality and with no right of appeal or until such later date as the court prescribes. On request of the court, the CM/ECF filer must provide original documents for review.


LOCATION OF CLERK’S OFFICE; HOURS OF OPERATION; NIGHT BOX. The clerk’s office is in Room 401 of the National Courts Building, 717 Madison Place, NW, Washington, DC 20439, and is open from 8:30 a.m. to 4:30 p.m. on workdays. After the office closes on workdays, papers may be deposited until midnight in a night box at the garage entrance on H Street NW, between 15th Street and Madison Place.

CLERK’S MAILING ADDRESS. Address mail as follows:

Clerk of Court United States Court of Appeals for the Federal Circuit

717 Madison Place NW Washington, DC 20439

The clerk of court will not pay postage due.

CLERK’S FACSIMILE NUMBER. Documents which Federal Circuit Rule 25 permits to be sent by facsimile to the clerk of court by pro se parties should be sent to: 202-275-9678. Note that appeals and petitions for review may NOT be filed by facsimile.

CLERK’S OFFICE EMAIL. Email address ([email protected]) may only be used by pro se filers.





PROOF OF SERVICE. Each brief, petition, motion, response, or reply must contain proof of service. If filed by counsel through CM/ECF, the certificate of service may state that the brief or other document was filed through CM/ECF and thereby served electronically. If filed by or to a pro se party, the certificate must state how the document was mailed or delivered. The original filed pro se with the court must be signed.

RETURN COPY MARKED RECEIVED. When a brief or other paper is presented for filing and the filer provides a copy to be marked “received,” the clerk of court will mark it received and return it. If the filing is by mail or if the night box is used, a self-addressed, postage-paid (first class) return envelope must accompany the request.

FILING REVIEW AND CORRECTION BY THE CLERK. The clerk of court may review material submitted for filing and require correction to conform with the Federal Rules of Appellate Procedure and the Federal Circuit Rules. The clerk of court will issue a notice advising of the nature of the nonconformity and guidelines for resubmission. Opposing counsel will be notified of the required correction. The timeliness of a response is computed from date of service of the original material. Because of occasional delays with some mail transmitted by the United States Postal Service, due to screening or other issues, if a document such as a notice of appeal, petition for review, motion, or other document must be received by the court on a particular date, then the pro se filer might consider using an alternative method of delivering the document to the court, such as a commercial carrier or hand-delivery. The court cannot waive the deadlines for filing a notice of appeal or petition for review, even if the document was deposited in the mail in a timely fashion. Federal Rule of Appellate Procedure 26(b).

PRO SE PARTIES WHO ARE ATTORNEYS. If a pro se party is also an attorney, that individual may use CM/ECF only if the attorney is registered as a member of the court’s bar and if the attorney enters an appearance. If the pro se party who also happens to be an attorney is not registered as a member of the bar, that pro se party must proceed by following the rules applicable to pro se parties and thus may not use CM/ECF.




PAPER COPIES OF BRIEFS AND APPENDICES. Counsel should not submit paper copies of any briefs or appendices required under Federal Circuit Rule 25(c)(1)(A)-(B) until after the court issues a notice indicating that the copies are due and the deadline for filing these copies. In typical, non-expedited cases, the clerk of court issues this notice shortly after briefing concludes. Paper copies for petitions and briefs related to panel rehearing, en banc hearing, or en banc rehearing are due after the filing of the electronic version as required by Federal Circuit Rule 25(c)(1)(C)-(F). Unrepresented parties must provide paper copies at the time for filing of the original brief.


Rule 26. Computing and Extending Time

(a) Computing Time.

The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate




Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible:

(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 26(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) ‘‘Last Day’’ Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing in the district court, at midnight in the court’s time zone;

(B) for electronic filing in the court of appeals, at midnight in the time zone of the circuit clerk’s principal office;

(C) for filing under Rules 4(c)(1), 25(a)(2)(A)(ii), and 25(a)(2)(A)(iii)—and filing by mail under Rule 13(a)(2)—at the latest time for the method chosen for delivery to the post office, third-party commercial carrier, or prison mailing system; and

(D) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,




Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state where either of the following is located: the district court that rendered the challenged judgment or order, or the circuit clerk’s principal office.

(b) Extending Time.

For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.




(c) Additional Time after Certain Kinds of Service.

When a party may or must act within a specified time after being served, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is treated as delivered on the date of service stated in the proof of service.


Rule 26. Computing and Extending Time

(a) Computation of Time; Closing the Clerk’s Office.

“Legal holiday” also means a day on which the clerk’s office is closed by order of the court or the chief judge. Such an order will be posted publicly.

(b) Motion to Extend Time.

(1) A motion to extend the time prescribed by the Federal Rules of Appellate Procedure, the Federal Circuit Rules, or an order of this court must be made at least 7 days before the date sought to be extended, except that in extraordinary circumstances a motion may be made later than that deadline if accompanied by an affidavit or unsworn declaration under penalty of perjury under 28 U.S.C. § 1746 that describes the extraordinary circumstances.

(2) Before filing the motion, the movant must inform all other parties that it will seek an extension.

(3) The movant must state in the motion whether any other parties object and, if so, whether a response in opposition will be filed.

(4) In addition to showing good cause, the motion must state:

(A) the date to be extended;

(B) the revised date sought;




(C) the number of days of extension sought; and

(D) the total number of days of extension previously granted to the movant.

(5) A request for an extension of more than 14 days must be accompanied by an affidavit or unsworn declaration of counsel or a pro se party under penalty of perjury under 28 U.S.C. §1746 showing good cause for the extension.

(c) Electronic Service of Documents by Counsel Through CM/ECF.

Three additional days are NOT added to the time to file a responsive document, when the original document was filed through CM/ECF, because the court considers service by email through CM/ECF to be delivered when transmitted.


OPPOSITION TO EXTENSION. If a party opposes a motion for extension of time, that party should file its response promptly. The court will not necessarily wait for an opposition before ruling on a motion.

BENEFIT OF TIMELY EXTENSION REQUEST. Unless the court has previously ordered that there will be no further extensions, an appeal will not be dismissed for failure to file appellant’s brief if appellant’s motion to extend the time for filing was filed and served at least seven days before the due date for the brief, but the motion has not been acted on by the due date.

EXTENSION DURING SETTLEMENT NEGOTIATIONS. Parties jointly stipulating that they are actively pursuing settlement of the case will be granted a reasonable extension of time to accomplish settlement.




COURT ORDER. Federal Rule of Appellate Procedure 26(c) does not apply when a court order requires action within a specified time; the due date is as specified in the order.

EXTENSION TO RESOLVE CONFIDENTIALITY ISSUES. The Court will grant a 5-day extension of time to file any brief, motion, response, or reply upon certification by counsel for the filer that additional time is needed to resolve confidentiality issues.


Rule 26.1 Corporate Disclosure Statement

(a) Who Must File.

Any nongovernmental corporate party to a proceeding in a court of appeals must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.

(b) Time for Filing; Supplemental Filing.

A party must file the Rule 26.1(a) statement with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing. Even if the statement has already been filed, the party’s principal brief must include the statement before the table of contents. A party must supplement its statement whenever the information that must be disclosed under Rule 26.1(a) changes.




(c) Number of Copies.

If the Rule 26.1(a) statement is filed before the principal brief, or if a supplemental statement is filed, the party must file an original and 3 copies unless the court requires a different number by local rule or by order in a particular case.

FEDERAL CIRCUIT RULE 26.1

Rule 26.1. Corporate Disclosure Statement

The corporate disclosure statement must be included in the certificate of interest prescribed in Federal Circuit Rule 47.4. A certificate of interest must be filed by any party represented by counsel within 14 days of the date of docketing of the appeal or petition. See Federal Circuit Rule 47.4 for additional requirements. Each brief, petition or motion filed by counsel must also include a certificate of interest. A party represented by counsel must file an amended certificate of interest promptly when any of the information required by the certificate changes.

Practice Notes to Rule 26.1

CERTIFICATE OF INTEREST. The requirements of Federal Rule of Appellate Procedure 26.1 are satisfied by filing a certificate of interest under Federal Circuit Rule 47.4. See Form 9.

TIMELY UPDATES. The court uses the Certificate of Interest to determine when recusal of a judge may be appropriate. Thus, timely correction and updating of the certificate is required to identify potential conflicts.





Rule 27. Motions

(a) In General.

(1) Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise.

(2) Contents of a Motion.

(A) Grounds and Relief Sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.

(B) Accompanying Documents.

(i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion.

(ii) An affidavit must contain only factual information, not legal argument.

(iii) A motion seeking substantive relief must include a copy of the trial court’s opinion or agency’s decision as a separate exhibit.

(C) Documents Barred or Not Required.

(i) A separate brief supporting or responding to a motion must not be filed.

(ii) A notice of motion is not required.

(iii) A proposed order is not required.




(3) Response.

(A) Time to File. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner.

(B) Request for Affirmative Relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.

(4) Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response.

(b) Disposition of a Motion for a Procedural Order.

The court may act on a motion for a procedural order—including a motion under Rule 26(b)—at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court’s, or the clerk’s, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed.

(c) Power of a Single Judge to Entertain a Motion.

A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.




(d) Form of Papers; Page Limits; and Number of Copies.

(1) Format.

(A) Reproduction. A motion, response, or reply may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.

(B) Cover. A cover is not required, but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. If a cover is used, it must be white.

(C) Binding. The document must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open.

(D) Paper Size, Line Spacing, and Margins. The document must be on 8 1/2 by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.

(E) Typeface and Type Styles. The document must comply with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).

(2) Length Limits. Except by the court’s permission, and excluding the accompanying documents authorized by Rule 27(a)(2)(B):

(A) a motion or response to a motion produced using a computer must not exceed 5,200 words;

(B) a handwritten or typewritten motion or response to a motion must not exceed 20 pages;

(C) a reply produced using a computer must not exceed 2,600 words; and




(D) a handwritten or typewritten reply to a response must not exceed 10 pages.

(3) Number of Copies. An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.

(e) Oral Argument.

A motion will be decided without oral argument unless the court orders otherwise.


Rule 27. Motions

(a) Content of Motion.

The preferred content and organization of a motion are:

(1) the name of this court;

(2) the caption. If the motion is for a procedural order on consent, the short caption may be used. For any other motion, the official caption must be used;

(3) the title of the motion;

(4) the grounds for the motion, the relief sought, and the legal argument to support the motion;

(5) the movant’s statement of consent or opposition to the motion. The movant must state in the motion that the movant has discussed the motion with the other parties, whether any party will object, and whether any party will file a response;

(6) counsel’s or pro se party’s signature;

(7) the certificate of interest. The certificate of interest (see Federal




Circuit Rule 47.4) must be included in each motion;

(8) supporting affidavit. If the facts relied on in the motion are subject to dispute, an affidavit or unsworn declaration under penalty of perjury under 28 U.S.C. § 1746 must be attached to the motion;

(9) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(b) Response; When Filed; Content.

If a motion states that it is consented to or unopposed, a response is not required. If a motion does not state whether—or incorrectly states that—it is consented to or unopposed, a response should be filed as soon as the omission or error becomes known. The preferred organization of a response is comparable to the organization of a motion provided in (a) of this rule and the preferred content of a response is:

(1) as provided in (a)(1), (2), (6), (7), (8), and (9) of this rule; and

(2) the grounds for denying the motion, limiting the relief granted, or modifying the order sought, and the legal argument to support the response; or the responding party’s statement of consent or lack of opposition.

(c) Content of Reply.

The preferred organization of a reply is comparable to the organization of a motion as provided in (a) of this rule and the preferred content of the reply is:

(1) as provided in (a)(1), (2), (6), (7), (8), and (9) of this rule; and

(2) the reply to the response and the legal argument to support it.

(d) Length of Motion, Response, or Reply; Cover and Backing; Attachments.

Items listed in Federal Circuit Rule 27(a)(7)-(9) do not count toward the word limitation in Federal Rule of Appellate Procedure 27(d)(2). Cover and backing for a motion, response, or reply are not required. If a motion includes several attachments or exhibits, the court prefers that the attachments or exhibits be separately tabbed for ease of reference.




(e) Motion to Strike; Response.

A motion to strike all or part of a brief, except to strike scandalous matter, is prohibited as long as the party seeking to strike has the right to file a responsive brief in which the objection could be made. A response, if any, in opposition to a motion to strike must be included in the responsive brief if one is authorized, or may be filed if leave is sought and obtained, or may be made at oral argument.

(f) Motion to Dismiss or to Remand; Response.

A motion to dismiss for lack of jurisdiction or to remand should be made as soon after docketing as the grounds for the motion are known. After the appellant or petitioner has filed the principal brief, the argument supporting dismissal for lack of jurisdiction or remand should be made in the brief of the appellee or respondent. A response in opposition, if any, should be included in the responsive brief. Joint or unopposed motions or stipulations to dismiss or to remand may be made at any time.

(g) Motion Incorporated in a Brief.

Except as provided in Federal Circuit Rule 27(e) and (f), a motion must not be incorporated in a brief.

(h) Delegation of Authority to the Clerk of Court.

The clerk of court is authorized to act on any procedural motion or unopposed nonprocedural motion, but may not act on an opposed nonprocedural motion or any motion that requires action by a judge or panel of judges. The clerk of court may also direct an expedited response to a motion or petition and may direct the parties to show cause why an appeal or petition should not be dismissed. Even if the clerk of court is authorized to act on a particular motion, the clerk of court may nonetheless refer the matter to a judge or panel, or may defer the matter to the merits panel, when appropriate.




(i) Ex Parte Application.

Neither the court nor any judge of the court will conduct an ex parte hearing on an application for relief.

(j) Copies.

No paper copies are required to be provided to the court for any motion, response, or reply that is submitted by counsel through CM/ECF. If a motion, response or reply is filed by a pro se party, then one paper copy must be provided by the court.

(k) Application for Consideration, Vacation, or Modification of Procedural Order.

A party adversely affected by a procedural order entered on a motion without awaiting the response time or by an order of the clerk of court may move for relief within 14 days of the order or action. The application must be made by motion.

(l) Review or Reconsideration of the Order of a Single Judge or Panel of Judges.

Except for a dispositive order issued by a panel, which time will be governed by Federal Rule of Appellate Procedure 40(a)(1), a party seeking review by the court of the action of a single judge or reconsideration of the action of a panel of judges must file a motion for reconsideration within 14 days of the entry of the order.

(m) Motions Containing Material Subject to a Protective Order.

(1) Confidentiality.

(A) Except as provided herein, no material in a motion, response, or reply shall be marked confidential, including references to information previously treated as confidential pursuant to a protective order. The exceptions are as follows: In cases other than those arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each motion, response, or reply may mark confidential up to fifteen (15) words (including numbers) if the information (1) was treated in the matter under review as confidential




pursuant to a judicial or administrative protective order and (2) such marking is authorized by statute, administrative regulation, or court rule (such as Federal Rule of Civil Procedure 26(c)(1)). When words are marked confidential in a motion, response, or reply, repeating the marked words in the same motion, response, or reply shall not add to the count toward the fifteen-word allotment. A response need not count toward its allotment any words that were already marked confidential in the motion to which it responds; a reply need not count words that were marked confidential in the response but not in the motion. A party seeking to mark confidential more than fifteen words must file a motion with this court establishing that the additional confidentiality markings are appropriate and necessary pursuant to a statute, administrative regulation, or court rule. For example, a party may establish that an argument cannot be properly developed without additional disclosure of confidential information in the motion, response, or reply, and public disclosure will risk causing competitive injury. Such a motion shall be made contemporaneously with the filing of the underlying motion, response, or reply, and the marked material shall be treated as confidential until the court acts on the motion. If the motion to mark additional material confidential is denied in whole or in part, an amended motion, response or reply shall be filed within ten (10) days of the action on the motion. In cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each motion, response, or reply may mark confidential up to fifty (50) words (including numbers).

(B) Attachments and exhibits to a motion, response, or reply may be marked confidential to the extent permitted for appendix material under Federal Circuit Rule 30(h).

(2) Two Versions of the Motions Documents. If a party refers in a motion to material subject to confidentiality as permitted by Federal Circuit Rule 27(m)(1) two versions of motions documents must be filed.

(A) Confidential Version; One version of motion documents must be labeled “confidential” and filed with the court. If confidentiality will end on a date certain or upon the happening of an event, this must be stated on the cover, e.g., “CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL DURING JUDICIAL REVIEW.” Each page containing confidential material must enclose this material in brackets or




indicate this material by highlighting.

(B) Nonconfidential Version; The second version of motion documents from which confidential matter has been deleted, must be labeled “nonconfidential” and filed with the court. Each page from which material subject to a protective order has been deleted must bear a legend so stating. The introductory paragraph of the nonconfidential motion or response must describe the general nature of the confidential material that has been deleted.

(3) Service. Each party to the appeal must be served two copies of the confidential motion documents if otherwise permitted by the applicable protective order.

(4) Availability to the Public. The confidential motion documents will be made available only to authorized court personnel and must not be made available to the public. After five years following the end of all proceedings in the court, the parties may be directed to show cause why confidential motion papers (except those protected by statute) should not be made available to the public.


CONTENT OF A MOTION, RESPONSE, OR REPLY. Using Federal Circuit Rule 27’s preferred content and organization for a motion, response, or reply will help avoid delays caused by the need for additional information. Although motions, responses, and replies need not have the formality of briefs, a motion, response, or reply may be rejected if it is not substantially complete.

MOOT RESPONSE. A response to a motion for a procedural order that is received after the motion has been acted on is considered moot.




AUTHORITY TO ACT ON MOTIONS; MOTIONS REFERRED TO PANEL. Neither the clerk of court nor the court is required to grant relief just because the parties agree it should be granted. The clerk of court’s authority to act on procedural or unopposed nonprocedural motions includes the authority to grant or deny the requested relief in whole or in part or to refer the motion to a judge or a panel.

Examples of procedural motions include motions for extensions of time, motions to reform the caption, motions for leave to file various documents, motions for leave to proceed in forma pauperis, etc.

Examples of nonprocedural motions include motions to dismiss, motions to remand, motions to transfer, motions to summarily affirm judgments, motions for stays of injunctions, motions to strike portions of briefs or appendices, motions for leave to intervene, motions for leave to file briefs as amici curiae, etc. Motions to exceed the permitted word or page limitation for a brief will be decided by a judge. If the clerk of court grants a motion to extend the time to file a principal brief by 60 days, no further extensions should be anticipated. Once a case is assigned to a merits panel, the clerk of court refers all motions to the merits panel.

TELEPHONE INQUIRY ABOUT PENDING MOTIONS; ACCESS TO ORDERS ON WEBSITE. Telephone inquiries about pending motions are discouraged because they divert the clerk’s office staff from more pressing duties. Most orders are considered routine and counsel may await notification by mail or Notice of Docket Activity (NDA). Counsel or the parties may often determine the status of a pending motion and obtain copies of court orders through CM/ECF or PACER. Many pertinent orders, including en banc orders, are promptly posted on the court’s opinions and orders page. Under no circumstances should anyone telephone a judge or the office of the senior staff attorney about a motion. In an emergency, you may call the clerk’s office.




MOTION TO EXPEDITE PROCEEDINGS. While motions to expedite proceedings are not routinely granted, they may be filed in an appropriate case. A motion for expedited proceedings is the procedural vehicle to request the court to accelerate consideration of an appeal or petition for review, and should be filed immediately upon filing of an appeal or petition for review. Such a motion is appropriate where the normal briefing and disposition schedule may adversely affect one of the parties, such as appeals involving preliminary or permanent injunctions, or government contract bid protests. A motion for expedited proceedings should be styled as an “Emergency Motion.” Unopposed emergency motions should still include a brief review of the grounds for the motion, the specific relief sought by way of a proposed briefing schedule, and the legal argument to support the motion, per Federal Circuit Rule 27(a)(4). A motion for expedited proceedings should also include as part of the relief sought a request for an expedited briefing schedule for the motion.

CERTIFICATE OF COMPLIANCE WITH CONFIDENTIALITY REQUIREMENTS. Federal Circuit Rule 27(m) limits the amount of material that can be marked confidential in motions, responses and replies. A motion, response or reply including confidential material must be accompanied by a certificate that the motion, response or reply complies with the word limitation. Federal Circuit Form 31 is a suggested form of a certificate of compliance with this rule. It is the responsibility of the filing party to ensure that its certificate of compliance is accurate.






Rule 28. Briefs

(a) Appellant’s Brief.

The appellant’s brief must contain, under appropriate headings and in the order indicated:

(1) a corporate disclosure statement if required by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court’s or agency’s subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;

(B) the basis for the court of appeals’ jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;

(C) the filing dates establishing the timeliness of the appeal or petition for review; and

(D) an assertion that the appeal is from a final order or judgment that disposes of all parties’ claims, or information establishing the court of appeals’ jurisdiction on some other basis;

(5) a statement of the issues presented for review;

(6) a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e));

(7) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings;

(8) the argument, which must contain:




(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);

(9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief.

The appellee’s brief must conform to the requirements of Rule 28(a)(1)–(8) and (10), except that none of the following need appear unless the appellee is dissatisfied with the appellant’s statement:

(1) the jurisdictional statement;

(2) the statement of the issues;

(3) the statement of the case; and

(4) the statement of the standard of review.

(c) Reply Brief.

The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the reply brief where they are cited.




(d) References to Parties.

In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.”

(e) References to the Record.

References to the parts of the record contained in the appendix filed with the appellant’s brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:

• Answer p. 7;

• Motion for Judgment p. 2;

• Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc.

If the court’s determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form.

(g) [Reserved]

(h) [Reserved]




(i) Briefs in a Case Involving Multiple Appellants or Appellees.

In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief. Parties may also join in reply briefs.

(j) Citation of Supplemental Authorities.

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.




Rule 28. Briefs

(a) Contents of Brief; Organization of Contents; Addendum; Binding.

Briefs must be bound as prescribed in Rule 32 of the Federal Rules of Appellate Procedure and must contain the following in the order listed:

(1) the certificate of interest (see Federal Circuit Rule 47.4);

(2) the table of contents;

(3) the table of authorities;

(4) the statement of related cases (see Federal Circuit Rule 47.5);

(5) the jurisdictional statement including a representation that the judgment or order appealed from is final or, if not final, the basis for appealability (e.g., preliminary injunction, Fed. R. Civ. P. 54(b) certification of final judgment as to fewer than all of the claims or parties, etc.);

(6) the statement of the issues;

(7) the statement of the case setting out the facts relevant to the issues, including the citation of any published decision of the trial tribunal in the proceedings;

(8) the summary of the argument;

(9) the argument, including statement of the standard of review;

(10) the conclusion and statement of relief sought;

(11) the judgment, order, or decision in question, and any opinion, memorandum, or findings and conclusions supporting it, as an addendum placed last within the initial brief of the appellant or petitioner. This requirement is met when the appendix is bound with the brief. (See Federal Circuit Rule 30(c)(1) and (d) for a duplicative requirement of the appendix.) Additionally, in an appeal involving a patent, the patent in suit may be included within the addendum of the initial brief and, if included, must be reproduced in its entirety. (See also Federal Circuit Rule 30(a)(2)(A)(iii) and Federal Circuit Rule 30(a)(3) for a requirement that the patent in suit be included in its entirety in the appendix). Addendum material must be paginated with




the corresponding appendix page numbers following the numbering format specified in Federal Circuit Rule 30(b)(4)(E), e.g. “Appx134,” “Appx3-17,” or “SAppx1185”;

(12) the proof of service (see Federal Rule of Appellate Procedure 25(d)); and

(13) the certificate of compliance, if required by Federal Rule of Appellate Procedure 32(g)(1).

(b) Appellee’s Jurisdictional Statement and Statements of the Issues, the Case, the Facts, and the Standard of Review.

The appellee’s jurisdictional statement and statements of the issues, the case, the facts, and the standard of review must be limited to specific areas of disagreement with those of the appellant. Absent disagreement, the appellee must not include any of those statements. The statement of the case must include the citation of any published decision of the trial tribunal in the proceedings that is not included in the appellant’s statement of the case.

(c) Motion to File Extended Brief.

The court looks with disfavor on a motion to file an extended brief and grants it only for extraordinary reasons. Unless the order granting a motion to file an extended brief provides otherwise, when additional pages or words are allowed in the principal brief of an appellant or cross-appellant, a responsive brief permitted by the rules may contain the same number of additional pages or words.

(d) Brief Containing Material Subject to a Protective Order.

(1) Confidentiality.

(A) Except as provided herein, no material in briefs shall be marked confidential, including references to information previously treated as confidential pursuant to a protective order. The exceptions are as follows: In cases other than those arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each brief may mark confidential up to fifteen (15) words (including numbers) if the information (1) was treated in the matter under review as confidential pursuant to a judicial or administrative protective




order and (2) such marking is authorized by statute, administrative regulation, or court rule (such as Federal Rule of Civil Procedure 26(c)(1)). When words are marked confidential in a brief, repeating the marked words in the same brief shall not add to the count toward the fifteen-word allotment. A brief need not count toward its allotment words that were marked confidential for the first time in the briefing cycle in an immediately preceding brief to which it is responding. A party seeking to mark confidential more than fifteen words in any brief must file a motion with this court establishing that the additional confidentiality markings are appropriate and necessary pursuant to a statute, administrative regulation, or court rule. For example, a party may establish that an argument cannot be properly developed without additional disclosure of confidential information in the brief, and public disclosure will risk causing competitive injury. Such a motion shall be made contemporaneously with the filing of the brief, and the marked material shall be treated as confidential until the court acts on the motion. If the motion is denied in whole or in part, an amended brief shall be filed within ten (10) days of the action on the motion. In cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each brief may mark confidential up to fifty (50) words (including numbers).

(B) Addendum material may be marked confidential to the extent permitted for appendix material. See Federal Circuit Rule 30(h).

(C) For purposes of this subsection (d), petitions for en banc or panel rehearing and responses thereto shall be considered to be briefs.

(2) Two Versions of Briefs. If a party refers in a brief to material subject to confidentiality as permitted by Federal Circuit Rule 28(d), then two versions of the briefs must be filed.

(A) Confidential Version; Labeling; Number of Copies. Counsel should file one version of paper briefs, consisting of six copies, which must be labeled “confidential.” If confidentiality will end on a date certain or upon the happening of an event, this must be stated on the cover, e.g., “CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL DURING JUDICIAL REVIEW.” Each page containing confidential material must enclose this material in brackets or indicate this material by highlighting.




(B) Nonconfidential Brief; Labeling; Number of Copies. Counsel should file the nonconfidential brief through CM/ECF. No paper copies are required if the nonconfidential brief was filed through CM/ECF and paper copies of the confidential brief were filed, unless otherwise ordered. The nonconfidential brief, from which confidential matter has been deleted, must be labeled “nonconfidential” and each page from which confidential material has been deleted must bear a legend so stating. The table of contents of a nonconfidential brief must describe the general nature of the confidential material that has been deleted.

(3) Service. A nonconfidential brief filed by counsel through CM/ECF is served on each party through a Notice of Docket Activity (NDA). Each party to the appeal must be served two paper copies of any confidential brief when permitted by the applicable protective order.

(4) Availability to the Public. The confidential briefs will be made available only to authorized court personnel and must not be made available to the public. After 5 years following the end of all proceedings in the court, the parties may be directed to show cause why confidential briefs (except those protected by statute) should not be made available to the public.

(5) Agreement to Remove Confidentiality Markings. Before the filing of any motion to mark material as confidential and thereafter if a motion is filed, the parties shall attempt to reach agreement that material should not be marked confidential in briefs or motions pursuant to Federal Circuit Rules 11(d) or 17(f).




(e) Citations.

Opinions of this court and its predecessors should be cited as found in the Federal Reporter. Parallel citations to any other reporters are discouraged. Examples of acceptable citations are:

Guotos v. United States, 552 F.2d 992 (Ct. Cl. 1976).

In re Sponnable, 405 F.2d 578 (CCPA 1969).

South Corporation v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc).

Doe v. Roe, No. 12-345, slip op. (Fed. Cir. Oct. 1, 1982).

(f) Reference to Appendix.

Reference in the brief to pages of the joint appendix and, if permitted, of a supplemental appendix must be as short as possible consistent with clarity and must follow the numbering format specified in Federal Circuit Rule 30(b)(4)(E), e.g., “Appx134,” “Appx3-17” or “SAppx1185.”

(g) Pro Se Briefs; Response.

(1) Informal Brief; Appellee’s Brief. A pro se party may file a formal brief or an informal brief, but not both. A pro se party may file an informal brief on the form prescribed by the court. When the appellant or petitioner files an informal brief, the appellee or respondent may elect to file an informal brief. An informal brief filed by an appellee or respondent must contain a statement of the case but otherwise follow the format prescribed for the pro se party. Three paper copies of an informal brief are required to be filed. See Federal Circuit Rule 25(c)(2)(B).

(2) Formal Brief. If a pro se party chooses to file a formal brief, then an informal brief may not be filed. If a formal brief is filed, it must comply with the various rules of this court regarding format and content, and six paper copies must be filed.




(3) Response. In a responsive brief, the respondent must state whether or not respondent believes the court has jurisdiction over the petition for review, with reasons provided.

(h) Briefs in a Transferred Case.

When an appeal is transferred to this court by another court of appeals after briefs have been filed, the parties may stipulate to proceed on those briefs instead of filing briefs prescribed by these rules. The stipulation must be filed within 14 days of docketing, and the briefs must be filed by counsel through CM/ECF, with the required number of paper copies to follow. See Federal Circuit Rule 25(c). The court may order supplemental briefs.

(i) Citation of Supplemental Authorities.

Any citation of supplemental authorities must be submitted through CM/ECF by counsel. If filed by a pro se party, then 3 copies must be filed.


INFORMAL BRIEF. The informal brief procedure is explained in the Guide for Pro Se Petitioners and Appellants.

MULTIPLE PARTIES. When there are multiple parties represented by the same counsel or counsel from the same firm, a combined brief must be filed on behalf of all the parties represented by that counsel or firm.



DESCRIBING THE GENERAL NATURE OF CONFIDENTIAL MATERIAL DELETED FROM THE NONCONFIDENTIAL BRIEF. The following example is acceptable:

CONFIDENTIAL MATERIAL OMITTED

The material omitted on page 42 describes the circumstances of an alleged lost sale; the material omitted in the first line of page 43 indicates the dollar amount of an alleged revenue loss; the material omitted on page 44 indicates the quantity of the party’s inventory and its market share; the material omitted in the text on page 45 describes the distributor’s experiences concerning the inventories and order lead times; and the material omitted in the footnote on page 45 describes non-price factors affecting customers’ preferences between competing methods.

JUSTIFICATION FOR CLAIM OF CONFIDENTIALITY. Unnecessarily designating material in the briefs and appendix as confidential may hinder the court’s preparation and issuance of opinions. Counsel must be prepared to justify at oral argument any claim of confidentiality.

INCLUSION OF PATENT CLAIMS. Any party or intervenor may include the language of a patent or claim at issue beginning on the inside of the front cover of the brief (this duplicate language is not counted pursuant to Fed. R. App. P. 32(g)(1)), provided the same language is included in the brief.

CERTIFICATE OF COMPLIANCE WITH CONFIDENTIALITY REQUIREMENTS. Federal Circuit Rule 28(d) limits the amount of material that can be marked confidential in briefs. A brief including confidential material must be accompanied by a certificate that the brief complies with the word limitation. Federal Circuit Form 31 is a suggested form of a certificate of compliance with this rule. The form can be embedded within the brief or filed separately. It is the responsibility of the filing party to ensure that its certificate of compliance is accurate.






Rule 28.1 Cross-Appeals

(a) Applicability.

This rule applies to a case in which a cross-appeal is filed. Rules 28(a)–(c), 31(a)(1), 32(a)(2), and 32(a)(7)(A)–(B) do not apply to such a case, except as otherwise provided in this rule.

(b) Designation of Appellant.

The party who files a notice of appeal first is the appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement or by court order.

(c) Briefs.

In a case involving a cross-appeal:

(1) Appellant’s Principal Brief. The appellant must file a principal brief in the appeal. That brief must comply with Rule 28(a).

(2) Appellee’s Principal and Response Brief. The appellee must file a principal brief in the cross-appeal and must, in the same brief, respond to the principal brief in the appeal. That appellee’s brief must comply with Rule 28(a), except that the brief need not include a statement of the case unless the appellee is dissatisfied with the appellant’s statement.

(3) Appellant’s Response and Reply Brief. The appellant must file a brief that responds to the principal brief in the cross-appeal and may, in the same brief, reply to the response in the appeal. That brief must comply with Rule 28(a)(2)–(8) and (10), except that none of the following need appear unless the appellant is dissatisfied with the appellee’s statement in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(C) the statement of the case; and




(D) the statement of the standard of review.

(4) Appellee’s Reply Brief. The appellee may file a brief in reply to the response in the cross-appeal. That brief must comply with Rule 28(a)(2)–(3) and (10) and must be limited to the issues presented by the cross-appeal.

(5) No Further Briefs. Unless the court permits, no further briefs may be filed in a case involving a cross-appeal.

(d) Cover.

Except for filings by unrepresented parties, the cover of the appellant’s principal brief must be blue; the appellee’s principal and response brief, red; the appellant’s response and reply brief, yellow; the appellee’s reply brief, gray; an intervenor’s or amicus curiae’s brief, green; and any supplemental brief, tan. The front cover of a brief must contain the information required by Rule 32(a)(2).

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant’s principal brief must not exceed 30 pages; the appellee’s principal and response brief, 35 pages; the appellant’s response and reply brief, 30 pages; and the appellee’s reply brief, 15 pages.

(2) Type-Volume Limitation.

(A) The appellant’s principal brief or the appellant’s response and reply brief is acceptable if it:

(i) contains no more than 13,000 words; or

(ii) uses a monospaced face and contains no more than 1,300 lines of text.

(B) The appellee’s principal and response brief is acceptable if it:

(i) contains no more than 15,300 words; or

(ii) uses a monospaced face and contains no more than 1,500 lines of text.




(C) The appellee’s reply brief is acceptable if it contains no more than half of the type volume specified in Rule 28.1(e)(2)(A).

(3) Certificate of Compliance. A brief submitted under Rule 28.1(e)(2) must comply with Rule 32(g)(1).

(f) Time to Serve and File a Brief.

Briefs must be served and filed as follows:

(1) the appellant’s principal brief, within 40 days after the record is filed;

(2) the appellee’s principal and response brief, within 30 days after the appellant’s principal brief is served;

(3) the appellant’s response and reply brief, within 30 days after the appellee’s principal and response brief is served; and

(4) the appellee’s reply brief, within 21 days after the appellant’s response and reply brief is served, but at least 7 days before argument unless the court, for good cause, allows a later filing.




Rule 28.1 Cross-Appeals

(a) Page Limitation.

Unless it complies with Federal Circuit Rule 28.1(b), the appellant's principal brief must not exceed 30 pages; the appellee's principal and response brief, 35 pages; the appellant's response and reply brief, 30 pages; and the appellee's reply brief, 15 pages.

(b) Type-Volume Limitation.

(1) The appellant's principal brief or the appellant's response and reply brief is acceptable if:

(A) it contains no more than 14,000 words; or

(B) it uses a monospaced face and contains no more than 1,300 lines of text.

(2) The appellee's principal and response brief is acceptable if:

(A) it contains no more than 16,500 words; or

(B) it uses a monospaced face and contains no more than 1,500 lines of text.

(3) The appellee's reply brief is acceptable if it contains no more than 7,000 words.

(c) Certificate of Compliance.

A brief submitted under this rule must comply with Rule 32(g)(1).




CROSS-APPEALS. A party may file a cross-appeal only when it seeks to modify or overturn the judgment of a trial tribunal. Although a party may present additional arguments in support of the judgment as an appellee, counsel are cautioned against improperly designating an appeal as a cross-appeal when they merely present arguments in support of the judgment. See Bailey v. Dart Container Corp., 292 F.3d 1360 (Fed. Cir. 2002). Further, counsel are cautioned, in cases involving a proper cross-appeal, to limit the fourth brief to the issues presented by the cross-appeal. In all cases, counsel should be prepared to defend the filing of a cross-appeal and the propriety of arguments presented in the fourth brief at oral argument.

TIME TO SERVE AND FILE A BRIEF. Please refer to Federal Circuit Rule 31(a) for brief due dates when there is a cross-appeal.

CLARIFICATION TO FEDERAL RULE OF APPELLATE PROCEDURE 28.1(4). Where the term “appellee” is used, it refers to the “cross-appellant.”




Rule 29. Brief of an Amicus Curiae

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial consideration of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.

(3) Motion for Leave to File. The motion must be accompanied by the proposed brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

(4) Contents and Form. An amicus brief must comply with Rule 32. In addition to the requirements of Rule 32, the cover must identify the party or parties supported and indicate whether the brief supports affirmance or reversal. An amicus brief need not comply with Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Rule 26.1;

(B) a table of contents, with page references;

(C) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a statement that indicates whether:




(i) a party’s counsel authored the brief in whole or in part;

(ii) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and

(iii) a person—other than the amicus curiae, its members, or its counsel— contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person;

(F) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only with the court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s consideration of whether to grant panel rehearing or rehearing en banc, unless a local rule or order in a case provides otherwise.




(2) When Permitted. The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or supporting neither party must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the petition is filed. An amicus curiae opposing the petition must file its brief, accompanied by a motion for filing when necessary, no later than the date set by the court for the response.




Rule 29. Brief of an Amicus Curiae

(a) Content; Form.

In addition to the contents required by Federal Rule of Appellate Procedure 29, the brief of an amicus curiae must include a certificate of interest (see Federal Circuit Rule 47.4) in front of the table of contents.

(b) List of Amicus Curiae.

The clerk will maintain a list of bar associations and other organizations to be invited to file amicus curiae briefs when the court directs. Bar associations and other organizations will be placed on the list if they request. The request must be renewed annually not later than October 1.

(c) Consent.

If an amicus brief is filed on consent of all parties, then no motion for leave is required and the brief should state, pursuant to Federal Rule of Appellate Procedure 29(a), that all parties have consented to its filing.


An amicus curiae must file an entry of appearance and a certificate of interest, if applicable. See Federal Circuit Rules 47.3, 47.4, and Forms 8 and 9.





Rule 30. Appendix to the Briefs

(a) Appellant’s Responsibility.

(1) Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing:

(A) the relevant docket entries in the proceeding below;

(B) the relevant portions of the pleadings, charge, findings, or opinion;

(C) the judgment, order, or decision in question; and

(D) other parts of the record to which the parties wish to direct the court’s attention.

(2) Excluded Material. Memoranda of law in the district court should not be included in the appendix unless they have independent relevance. Parts of the record may be relied on by the court or the parties even though not included in the appendix.

(3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the appellant must file 10 copies of the appendix with the brief and must serve one copy on counsel for each party separately represented. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.

(b) All Parties’ Responsibilities.

(1) Determining the Contents of the Appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, within 14 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review. The appellee may, within 14 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court’s attention. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of




parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee.

(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the cost of the appendix. If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. But if any party causes unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party. Each circuit must, by local rule, provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.

(c) Deferred Appendix.

(1) Deferral Until After Briefs Are Filed. The court may provide by rule for classes of cases or by order in a particular case that preparation of the appendix may be deferred until after the briefs have been filed and that the appendix may be filed 21 days after the appellee’s brief is served. Even though the filing of the appendix may be deferred, Rule 30(b) applies; except that a party must designate the parts of the record it wants included in the appendix when it serves its brief, and need not include a statement of the issues presented.

(2) References to the Record.

(A) If the deferred appendix is used, the parties may cite in their briefs the pertinent pages of the record. When the appendix is prepared, the record pages cited in the briefs must be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear.

(B) A party who wants to refer directly to pages of the appendix may serve and file copies of the brief within the time required by Rule 31(a), containing appropriate references to pertinent pages of the record. In that event, within 14 days after the appendix is filed, the party must serve and file copies of the brief, containing references to the pages of the appendix in place of or in addition to the references to the pertinent pages of the record. Except for




the correction of typographical errors, no other changes may be made to the brief.

(d) Format of the Appendix.

The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted.

(e) Reproduction of Exhibits.

Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district-court action and has been designated for inclusion in the appendix, the transcript must be placed in the appendix as an exhibit.

(f) Appeal on the Original Record Without an Appendix.

The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file.




Rule 30. Appendix to the Briefs

(a) Purpose; Content of Appendix; Time for Filing; Number of Copies; Cover; Service.

(1) Purpose. The purpose of this rule is to limit the size of the appendix of documentary materials that is printed and filed with the court. The rule also authorizes a supplementary video recording media appendix under some circumstances.

(2) Contents; Indiscriminate Referencing to Blocks of the Record Prohibited.

(A) In addition to the matters required by Federal Rule of Appellate Procedure 30(a)(1)(A),(B), and (C), the appendix must include:

(i) the entire docket sheet from the proceedings below;

(ii) in an appeal from a jury case, the judge’s charge, the jury’s verdict, and the jury’s responses to interrogatories;

(iii) in an appeal involving a patent, the patent in suit in its entirety. The patent in suit may also be included as an addendum to appellant’s initial brief. Any other patents included in an appendix must be included in their entirety; and

(iv) any nonprecedential opinion or order cited in accordance with Federal Circuit Rule 32.1(c).

(B) Parts of the record authorized by Federal Rule of Appellate Procedure 30(a)(1)(D) must not be included in the appendix unless they are actually referenced in the briefs, but the parties are encouraged to include in the appendix sufficient surrounding transcript pages to provide context for a referenced transcript excerpt.

(C) Indiscriminate referencing in briefs to blocks of record pages or inclusion of unnecessary pages in the appendix is prohibited.

(D) If the appellant considers that parts of the record have been referenced in violation of this rule, the appellant may so advise the appellee and the appellee must advance the costs of




including those parts in the appendix.

(E) The following must not be included in the appendix except by leave of the court, and any motion for leave must state the number of pages requested to be included:

(i) briefs and memoranda in their entirety (except as otherwise provided in Federal Circuit Rule 30);

(ii) notices;

(iii) subpoenas—except where the enforcement or validity of a subpoena is at issue;

(iv) summonses—except in appeals from the Court of International Trade;

(v) motions to extend time; or

(vi) jury lists.

(F) Nothing in this Federal Circuit Rule 30 prohibits from designation and inclusion in an appendix:

(i) an examiner’s answer in an ex parte patent case;

(ii) a trademark examining attorney’s appeal brief in an ex parte trademark case; or

(iii) the briefs and memoranda in their entirety in a case where the only issue is the propriety of summary judgment.

(3) Additional Mandatory Appendix Items in Patent and Trademark Office Appeals. In an appeal from the Patent and Trademark Office, unless the parties mutually agree otherwise, the appendix must include:

(A) a copy of all rejected claims in an ex parte patent appeal;

(B) a copy of all counts in a patent interference appeal; or




(C) a copy of the trademark sought to be registered or cancelled and a copy of any registration relied on to refuse or oppose registration or to seek cancellation of a registered mark in an ex parte or an inter partes trademark appeal.

(4) Time for Filing. The appellant must serve and file an appendix within seven days after the last reply brief is served and filed. When there is no cross- appeal, if the appellant does not file a reply brief, the appendix must be served and filed within the time for filing the reply brief. In a cross appeal, if the cross- appellant does not file a reply brief, the appendix must be served and filed within 7 days after the time for filing the cross- appellant’s reply brief has expired.

(5) Number of Copies. Six paper copies of the appendix must be filed with the court in accordance with Federal Circuit Rule 25(c).

(6) Multi-Volume Appendix: Covers and Page Numbers. A multi-volume appendix must have a volume number in roman numerals and the pages included in the volume listed at the top of the cover of each volume (e.g., Volume II, Pages 542 to 813).

(7) Service. One paper copy must be served on, or by, each pro se party. In a case in which all parties are represented by counsel, service of nonconfidential material is made through CM/ECF and no paper copies are required to be served on the parties. See Rule 30(h)(3) for provisions related to service of confidential appendixes.

(8) Consequence of Failing to File an Appendix. If the appellant fails to file an appendix, the clerk of court is authorized to dismiss the case.

(b) Determination of Contents of Appendix; Designation of Materials; Extension of Time.

(1) The parties are encouraged to agree on the contents of an appendix that will comply with this Federal Circuit Rule 30.

(2) In the absence of an agreement, the appellant must, within 14 days after docketing in an appeal from a court or after service of the certified list or index in a petition for review or appeal from an agency, serve on the appellee or cross- appellant a designation of materials from which the appendix will be prepared and a statement of the issues to be presented for review. The appellee or cross-appellant may, within 14 days after receiving the designation, serve on the appellant a




counter-designation of additional parts to be included in the appendix.

(3) A designation or counter-designation must not be filed with the court.

(4) Table of Page Numbers; Physical Compilation.

(A) Within 14 days after the parties have designated the material for the appendix, the appellant must assign consecutive page numbers to the designated material and serve on all parties a table reflecting the page numbers of each item designated.

(B) If not prohibited in an outstanding protective order, instead of the table the appellant may—at the appellant’s option—serve on the parties one copy of a physical compilation of the designated material with the assigned page numbers shown. This copy may be in micrographic format.

(C) The first page numbers in the designated material must be assigned to the judgment or order appealed from and any opinion, memorandum, or findings and conclusions supporting it.

(D) The table of page numbers or the physical compilation of the designated material, whichever is used, must not be filed with the court. If all designated material comprises no more than 100 pages, Federal Circuit Rule 30(d) applies.

(E) The pages of the appendix or supplemental appendix shall be numbered by the automated Bates numbering feature of the software used to convert the appendix to a .pdf document and must be in the format “Appx” or “SAppx” followed by the page number(s); e.g., “Appx134,” “Appx3-17,” or “SAppx1385.”

(5) Extension of Time Limits. The time limits for designating, counter-designating, and compiling the table may be extended by agreement of the parties without seeking leave of the court, as long as an extension of the time is not required for filing appellant’s brief. But if a transcript of the proceedings is required before the material can be designated and if the transcript has been ordered but not completed within the time prescribed by this rule, the appellant must move for an extension of time within which to designate the material. An affidavit explaining in detail what has been done to expedite transcription of the trial proceedings must be attached to the motion.




(6) Preparation of Appendix. The appellant must prepare the appendix to be filed with the court from the designated material by selecting from that material only items required by these rules and pages specifically referred to in the briefs of the parties. Pages of the designated material not referenced in the briefs—other than items required by these rules—must be omitted from the appendix filed with the court.

(c) Format of Appendix; Pagination.

(1) Arrangement of Appendix. Federal Rule of Appellate Procedure 30(d) governs the arrangement of the appendix, except the judgment or order appealed from and any opinion, memorandum, or findings and conclusions supporting it must be placed first in the appendix. (See Federal Circuit Rule 28(a)(11) for a duplicative requirement of the appellant’s or petitioner’s initial brief.)

(2) Pagination. The page numbers used in the appendix must be the page numbers assigned by the appellant or petitioner to the designated material in accordance with Federal Circuit Rule 30(b). The page number must appear centered in the bottom margin of each page in the appendix. Other pagination marks must be redacted if necessary to avoid confusion. The materials in the appendix must be in numerical order according to the page numbers the appellant assigned to the

designated materials. Omission of pages need not be noted, e.g., page 102 may be followed by page 230 without stating that pages 103-229 are not reproduced in the appendix. References in the briefs must be only to the page numbers of the appendix.

(3) Printing. Pages in an appendix—even when filing a combined brief and appendix—may be printed on both sides. To the extent possible, the court encourages this.

(d) Combined Brief and Appendix.

(1) When a brief and appendix are combined, the cover must so indicate.




(2) If all designated material comprises no more than 100 pages, all of it may be included in the appendix, in which case it may be bound together with the appellant’s or petitioner’s initial brief and the brief must be filed as provided in Federal Circuit Rule 31(a).

(e) Appendix in a Pro Se Case.

If an appellant appearing pro se files an inadequate appendix, the appellee may file with its brief an appendix containing material permitted by Federal Circuit Rule 30(a)(2).

(f) Separate or Supplemental Appendix.

If the appellant has failed to participate in determining the contents of an appendix or has filed an inadequate appendix, the United States or an officer or agency of the United States, as the appellee, may file a separate or supplemental appendix containing material permitted by Federal Circuit Rule 30(a)(2). The cover must be red. If the separate or supplemental appendix contains no more than 100 pages, it may be bound together with the appellee’s initial brief. Except as provided in Federal Circuit Rule 30(e) and (f), no party may file a separate or supplemental appendix without leave of the court.

(g) Costs.

The costs of the table of page numbers or the copy of the physical compilation of the designated material authorized in Federal Circuit Rule 30(b)(4) and of the appendix, including the separate segments authorized in Federal Circuit Rule 30(h), may be assessed as provided in Federal Rule of Appellate Procedure 30(b)(2).

(h) Appendices Containing Material Subject to a Protective Order.

(1) (A) Confidentiality. Material that retains its status as covered by a protective order may be marked confidential in appendices (and addenda to briefs). Material that has lost its coverage under a protective order under Federal Circuit Rule 11(c) or 17(e)—based on Federal Circuit Rules 30(h)(1)(B), 27(m)(1), or




28(d)(1)—may not be marked confidential in appendices (or addenda).

(B) Agreement by Parties to Modify a Protective Order; Certificate of Compliance. If any portion of the record in the trial court or an agency is subject to a protective order and a notice of appeal has been filed, each party must promptly review the record to determine whether protected portions need to remain protected on appeal. If a party determines that some portions no longer need to be protected, that party must seek an agreement with the other party. Any agreement that is reached must be promptly presented to the trial court or the agency, which may issue an appropriate order. Whether or not an agreement is reached, each party must file a certificate of compliance no later than the time for filing the joint appendix stating it complied with this rule. This Federal Circuit Rule 30(h)(1)(B) does not apply in a case arising under 19 U.S.C. § 1516a, or to third-party information marked as confidential.

(C) Motion to Modify the Protective Order. A party may move at any time in this court to modify a protective order to remove protection from some material or to include another person within its terms. This court may decide the motion or may remand the case to the trial court. This court, sua sponte, may direct the parties to show cause why a protective order should not be modified.

(2) Two Versions of Appendices. If a party refers in appendices to material subject to confidentiality mandated by statute or to a judicial or administrative protective order, consistent with Federal Circuit Rule 30(h)(1), two versions of appendices must be filed.

(A) Confidential Version; Labeling; Number of Copies. One set of appendices, consisting of six paper copies of the complete appendix, must be labeled “confidential” and filed with the court. If confidentiality will end on a date certain or upon the happening of an event, this must be stated on the cover, e.g., “CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL DURING JUDICIAL REVIEW.” The confidential appendix must include at the beginning (i.e., in front of the judgment or order appealed from) pertinent excerpts of any statutes imposing confidentiality or the entirety of any judicial or administrative protective order. Each page containing confidential material




must enclose this material in brackets or indicate this material by highlighting.

(B) Nonconfidential Version; Labeling. The second version of appendices from which confidential matter has been deleted, must be labeled “nonconfidential” and filed with the court. Each page from which material subject to a protective order has been deleted must bear a legend so stating. The table of contents of a nonconfidential appendix must describe the general nature of the confidential material that has been deleted.

(3) Service. In a pro se case, each party to the appeal must be served one copy of the nonconfidential appendices and, when permitted by the applicable protective order, one copy of the confidential appendices. In a case in which all parties are represented by counsel, service is made through CM/ECF of a nonconfidential appendix; one paper copy of the confidential version must be served.

(4) Availability to the Public. The confidential appendices will be made available only to authorized court personnel and must not be made available to the public. After 5 years following the end of all proceedings in the court, the parties may be directed to show cause why confidential appendices (except those protected by statute) should not be made available to the public.

(i) Appendix to Informal Brief.

The appendix to an informal brief must contain the judgment and opinion of the trial court or the final order of an administrative agency. The initial decision of the administrative judge must also be included in the appendix in a Merit Systems Protection Board case.

(j) Supplementary Video Recording Media Appendix.

When the record on appeal or review has been perpetuated in whole or in part on video recording media in accordance with the rules of the court or agency, those video recording media portions of the record that would properly be included in the appendix if they were in documentary form may be included in a supplementary video recording media appendix. Four copies must be filed.




FILING PAGE PROOF COPIES PROHIBITED; NOTICE OF NEW REFERENCES IN CROSS-APPELLANT’S REPLY BRIEF. Preparing the appendix requires extensive cooperation between the parties. Federal Circuit Rule 30, unlike Federal Rule of Appellate Procedure 30, does not permit filing page proof copies of briefs. An appendix prepared without careful attention to Federal Circuit Rule 30 may be rejected when submitted and may result in dismissal. To expedite preparing the joint appendix, a cross-appellant will notify the appellant promptly on being served appellant’s reply brief whether the cross-appellant will file a reply brief and, if so, whether it will refer to pages not referenced in the briefs already filed, listing any such pages.

DISPENSING WITH THE APPENDIX. A motion to dispense with the appendix will be granted only in extraordinary circumstances.

BRIEFS AND MEMORANDA. Briefs and memoranda presented to the trial court or agency may not ordinarily be included in their entirety in the appendix, but individual pages may be included when it is necessary to refer to them in the appellate briefs.

TABLE OF CONTENTS OR INDEX. Parties are encouraged to include a table of contents or index in each volume of the appendix.




Rule 31. Serving and Filing Briefs

(a) Time to Serve and File a Brief.

(1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant’s brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.

(2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.

(b) Number of Copies.

Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on each unrepresented party and on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on each unrepresented party and on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.

(c) Consequence of Failure to File.

If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.




Rule 31. Serving and Filing Briefs

(a) Time for Service and Filing.

(1) Brief of Appellant or Petitioner.

(A) In an appeal from a court, the appellant must serve and file its initial brief within 60 days after docketing. Docketing a cross-appeal does not affect the time for serving and filing the appellant’s initial brief.

(B) In an appeal from an agency, the petitioner or appellant must serve and file its initial brief within 60 days after the certified list or index is served pursuant to Federal Circuit Rule 17(c).

(C) When two or more appellants or petitioners choose to proceed by filing a single brief, the initial brief must be served and filed no later than the latest date on which the initial brief of any of these appellants or petitioners is due.

(2) Brief of Appellee or Cross-Appellant. The appellee or cross-appellant must serve and file its initial brief within 40 days after appellant’s brief is served.

(3) Cross-Appeal. In a cross-appeal:

(A) the appellant must serve and file its reply brief within 40 days after cross-appellant’s brief is served; and

(B) the cross-appellant must serve and file its reply brief within 21 days after appellant’s reply brief is served.

(4) Single Brief Responding to Multiple Parties. A single brief that responds to the briefs of multiple parties must be served and filed within the time prescribed after service of the last of these briefs or, if no such brief is filed, after the time expires for filing the last of these briefs.




(b) Number of Copies.

Six paper copies of each brief, or three paper copies if filing an informal brief, shall be provided to the court in accordance with Federal Circuit Rule 25(c).

(c) Certain Motions Suspend the Due Date of the Next Brief.

When a motion is filed that, if granted, would terminate the appeal, the time to serve and file the next brief due is suspended. If the motion is denied, the next brief becomes due, unless the court orders otherwise, within the balance of the time remaining under this rule when the motion was filed, but not fewer than 14 days from the date of the order.

(d) Consequence of Failure to File a Brief by Appellant or Petitioner.

If the appellant fails to file an initial brief, the clerk of court is authorized to dismiss the case.

(e) Informal Brief; Time for Filing; Number of Copies.

(1) Brief of Appellant or Petitioner.

(A) In an appeal from a court, a pro se appellant filing an informal brief must serve and file the brief within 21 days after the appeal is docketed.

(B) In a petition for review or an appeal from an agency, a pro se petitioner or appellant filing an informal brief must serve and file the brief within 21 days after the certified list or index is served pursuant to Federal Circuit Rule 17(c) or within 21 days after docketing, whichever is later.

(2) Brief of Appellee or Respondent. An appellee or respondent filing an informal brief must serve and file the brief within 21 days after petitioner’s or appellant’s brief is served or within 21 days after the certified list or index is served pursuant to Federal Circuit Rule 17(c), whichever is later.

(3) Reply Brief. When an informal brief is used, any reply brief must be served within 14 days after respondent’s or appellee’s brief is served.




(4) Number of Copies. Three paper copies of each informal brief must be filed with the court and one copy must be served on each party.


CONSOLIDATED APPEALS. In consolidated appeals in which more than one appellant filed a notice of appeal, the opening brief of all appellants will be governed by the docketing date of the last filed appeal.

CONSOLIDATED CROSS-APPEALS. In consolidated cross-appeals, the briefing schedule is computed according to the docketing date of the first appeal.




Rule 32. Form of Briefs, Appendices, and Other Papers

(a) Form of a Brief.

(1) Reproduction.

(A) A brief may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.

(B) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer.

(C) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy.

(2) Cover. Except for filings by unrepresented parties, the cover of the appellant’s brief must be blue; the appellee’s, red; an intervenor’s or amicus curiae’s, green; any reply brief, gray; and any supplemental brief, tan. The front cover of a brief must contain:

(A) the number of the case centered at the top;

(B) the name of the court;

(C) the title of the case (see Rule 12(a));

(D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of the court, agency, or board below;

(E) the title of the brief, identifying the party or parties for whom the brief is filed; and

(F) the name, office address, and telephone number of counsel representing the party for whom the brief is filed.

(3) Binding. The brief must be bound in any manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open.

(4) Paper Size, Line Spacing, and Margins. The brief must be on 8 1/2 by 11 inch paper. The text must be double-spaced, but quotations more




than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.

(5) Typeface. Either a proportionally spaced or a monospaced face may be used.

(A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger.

(B) A monospaced face may not contain more than 10 1/2 characters per inch.

(6) Type Styles. A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined.

(7) Length.

(A) Page Limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B).

(B) Type-Volume Limitation.

(i) A principal brief is acceptable if it:

• contains no more than 13,000 words; or

• uses a monospaced face and contains no more than 1,300 lines of text.

(ii) A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i).

(b) Form of an Appendix.

An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions:

(1) The cover of a separately bound appendix must be white.




(2) An appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision.

(3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 8 1/2 by 11 inches, and need not lie reasonably flat when opened.

(c) Form of Other Papers.

(1) Motion. The form of a motion is governed by Rule 27(d).

(2) Other Papers. Any other paper, including a petition for panel rehearing and a petition for hearing or rehearing en banc, and any response to such a petition, must be reproduced in the manner prescribed by Rule 32(a), with the following exceptions:

(A) A cover is not necessary if the caption and signature page of the paper together contain the information required by Rule 32(a)(2). If a cover is used, it must be white.

(B) Rule 32(a)(7) does not apply.

(d) Signature.

Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party’s attorneys.

(e) Local Variation.

Every court of appeals must accept documents that comply with the form requirements of this rule and the length limits set by these rules. By local rule or order in a particular case, a court of appeals may accept documents that do not meet all the form requirements of this rule or the length limits set by these rules.




(f) Items Excluded from Length.

In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:

• the cover page;

• a corporate disclosure statement;

• a table of contents;

• a table of citations;

• a statement regarding oral argument;

• an addendum containing statutes, rules, or regulations;

• certificates of counsel;

• the signature block;

• the proof of service; and

• any item specifically excluded by these rules or by local rule.

(g) Certificate of Compliance.

(1) Briefs and Papers That Require a Certificate. A brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the document. The certificate must state the number of words—or the number of lines of monospaced type—in the document.

(2) Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance.




Rule 32. Form of Briefs, Appendices, and Other Papers; Length

(a) Nonconforming Brief.

The clerk of court may require corrections to any brief that has not been prepared in conformity with Federal Rule of Appellate Procedure 32; as to word count, an appellant’s and appellee’s opening brief is acceptable if it contains no more than 14,000 words or uses a monospaced face and contains no more than 1,300 lines of text, and an appellant’s reply brief is acceptable if it contains no more than 7,000 words.

(b) Exclusion from Type-Volume Limitation.

In addition to the items listed in Federal Rule of Appellate Procedure 32(f) that are not counted in the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B), the following items do not count toward that limitation:

(1) the certificate of interest;

(2) the statement of related cases; and

(3) the addendum in an initial brief of an appellant or petitioner.

(c) Informal Brief.

An informal brief must be prepared on a form provided by the clerk of court. The form contains instructions for preparing and filing an informal brief. An informal brief should be typewritten, but block printing or, as a last resort, legible handwriting is permitted. An informal brief including continuation pages must not exceed 30 pages of typewritten double-spaced text or its equivalent.

(d) Form of Appendix.

Pages in an appendix—even when filing a combined brief and appendix—may be printed on both sides. To the extent possible, the court encourages this.




(e) Filing Corresponding Brief on Compact Disc.

In addition to the filing of a paper brief, a party may file a corresponding brief contained on a compact disc-read only memory (CD-ROM), subject to the following requirements.

(1) Consent; Motion. Within 14 days of docketing an appeal, a party intending to file a corresponding brief must ascertain whether any other party consents or objects. If the other parties consent, the filing party must promptly file with the court a notice of intent to file a corresponding brief. If any other party does not consent, the party seeking to file a corresponding brief must promptly file a motion for leave with the court. If no response is filed within seven days, the clerk will grant the motion for leave to file a corresponding brief. The court will deny a motion for leave to file a corresponding brief only if an opposing party demonstrates substantial prejudice.

(2) Content. A corresponding brief must be identical in content to the paper brief. A corresponding brief may provide hypertext links to the complete versions of material that was part of the record below. Hypertext links to other material must be confined to materials such as cases, statutes, treatises, law review articles, and similar authorities. A corresponding brief must be self-contained and static.

(3) Statement Concerning Instructions and Viruses. A corresponding brief must be accompanied by a statement, preferably within or attached to the packaging, that:

(A) sets forth the instructions for viewing the brief and the minimum equipment required for viewing; and

(B) verifies the absence of computer viruses and lists the software used to ensure that the brief is virus-free.

(4) Time for Filing. A corresponding brief, if any, must be filed no later than the time for filing the joint appendix.

(5) Filing and Service. Except for the time of filing, a corresponding brief must be filed and served in the same manner and the same number of copies as the paper brief.




(6) Single CD-ROM. All parties to an appeal who intend to file a corresponding CD-ROM brief are encouraged to cooperate in placing all such briefs on a single CD-ROM.

(7) Table of Contents. Parties filing a corresponding brief are encouraged to include a table of contents with links to all of the items required in a joint appendix under Federal Rule of Appellate Procedure 30 and Federal Circuit Rule 30 and to all other parts of the record contained on the corresponding brief.

(8) Labeling. A label with the caption of the case, the number of the case, and the types of briefs included on the CD-ROM must be included on both the packaging and the CD-ROM.


PREFERRED COVER. In addition to the requirements of Federal Rule of Appellate Procedure 32(a)(2)(D), the court encourages inclusion on the cover of the name of the judge, when applicable, from whose judgment appeal is taken.

PREFERRED BINDING. The court prefers that a brief be securely bound along the left margin to ensure that the bound copy will not loosen or fall apart; that a brief lie flat when open; that a ring- type binding, plastic or metal, or a binding that protrudes from the front and back covers not be used; and that any externally positioned staple be covered with tape.

PRINT SIZE OF BRIEFS. Counsel should avoid photo-reproduction that reduces the print size of the original smaller than the size required by Federal Rule of Appellate Procedure 32.




FOOTNOTES. The typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) apply to all text in the brief, including footnotes.

BRIEF COVERS IN CROSS-APPEALS. The color of the cover of the cross-appellant’s principal brief is red. The color of the covers of appellant’s reply brief is yellow and cross-appellant’s reply brief is gray.

COPIES OF PATENT DOCUMENTS. Oversize patent documents reproduced in a brief or appendix should be photo-reduced to 8 1/2 by 11 inches if readability can be maintained; otherwise, they should be folded and bound so they do not protrude from the covers of the brief or appendix.

ERRATA; CORRECTIONS TO BE MADE BY COUNSEL OR A PARTY. A brief may not be corrected merely by appending an errata sheet. Corrections, which must be limited to nonsubstantive matters, must be made by counsel or a party using suitable means directly in the paper briefs in the clerk’s office. As a last resort, briefs may be replaced. Corrected or replacement briefs must also be submitted through CM/ECF. The time to file a brief in response to a corrected or replaced brief runs from service of the original brief. A corrected or replacement brief should so indicate on the cover. Counsel or a party must file a “Notice of Correction” with the court through CM/ECF and serve any unrepresented party with a paper copy, specifically delineating each correction. Any pro se party filing a corrected brief must file and original and three paper copies of the corrected brief. Any individual making corrections to the paper briefs in the clerk’s office must provide written authorization and present proper photo identification.

TESTIMONY IN THE APPENDIX. To reduce bulk in the appendix, the use of condensed, columnar transcripts of testimony is encouraged.




CERTIFICATE OF COMPLIANCE. Federal Rule of Appellate Procedure 32(g) states that the use of Federal Rules of Appellate Procedure Form 6 is sufficient to satisfy the requirements of Rule 32(g). That form is reproduced as Federal Circuit Form 19. Parties are reminded that some software programs do not automatically include footnotes. When certain text is marked for word count or line count purposes, a party may need to separately mark text in footnotes and include those words or lines in the certified count. It is the responsibility of the filing party to ensure that its certificate of compliance is accurate.


Rule 32.1 Citing Judicial Dispositions

(a) Citation Permitted.

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b) Copies Required.

If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.





Rule 32.1. Citing Judicial Dispositions

(a) Disposition of Appeal, Motion, or Petition.

Disposition of an appeal may be announced in an opinion; disposition of a motion or petition may be announced in an order. An appeal may also be disposed of in a judgment of affirmance without opinion pursuant to Federal Circuit Rule 36. A nonprecedential disposition shall bear a legend designating it as nonprecedential. A precedential disposition shall bear no legend.

(b) Nonprecedential Opinion or Order.

An opinion or order which is designated as nonprecedential is one determined by the panel issuing it as not adding significantly to the body of law.

(c) Parties’ Citation of Nonprecedential Dispositions.

Parties are not prohibited or restricted from citing nonprecedential dispositions issued after January 1, 2007. This rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like based on a nonprecedential disposition issued before that date.

(d) Court’s Consideration of Nonprecedential Dispositions.

The court may refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning, but will not give one of its own nonprecedential dispositions the effect of binding precedent. The court will not consider nonprecedential dispositions of another court as binding precedent of that court unless the rules of that court so provide.

(e) Request to Make an Opinion or Order Precedential; Time for Filing.

Within 60 days after any nonprecedential opinion or order is issued, any person may request, with accompanying reasons, that the opinion or order be reissued as precedential. An original and six paper copies of the request must be filed with the court unless the request is made by an electronic filer. All electronic filers must file documents through CM/ECF in accordance with Federal Circuit Rule 25(a)(2). The request will be considered by the panel




that rendered the disposition. The requester must notify the court and the parties of any case that person knows to be pending that would be determined or affected by reissuance as precedential. Parties to pending cases who have a stake in the outcome of a decision to make precedential must be given an opportunity to respond. If the request is granted, the opinion or order may be revised as appropriate.

(f) Public Records.

All dispositions by the court in any form will be in writing and are public records.


FILING AN OPINION. An opinion is issued when ready. No particular day of the week is considered a “down day.” An opinion is not issued on a holiday, as defined in Federal Rule of Appellate Procedure 26 and Federal Circuit Rule 26. The judgment is entered on the day the opinion is filed with the clerk of court and transmitted to the parties.

AVAILABILITY OF AN OPINION. The court’s precedential and nonprecedential opinions are available in a variety of commercially available print and electronic media.

SUBSCRIPTIONS. Subscriptions to opinions are not available from the court, but are available from several commercial sources.

INFORMATION ABOUT AN OPINION. Information about decisions rendered, opinions issued, and actions taken on petitions for rehearing is posted daily on the court’s website, www.cafc.uscourts.gov. The court’s opinions, rules, and other information are also available on the Federal Circuit website.





REQUEST TO MAKE AN OPINION OR ORDER PRECEDENTIAL. It is improper to refer in a brief to a request to make an opinion or order precedential before the request has been acted on. The opinion or order that is subject to the request remains nonprecedential unless and until the court grants the request.


Rule 33. Appeal Conferences

The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.




Rule 33. Appeal Conferences

(a) Settlement Discussion; Joint Statement of Compliance or Agreement to Dismiss.

(1) When all the parties are represented by counsel, within 7 days after the first two briefs in an appeal or the first three briefs in a cross-appeal are served and filed, the parties through counsel must discuss settlement in appeals under 28 U.S.C. §§ 1292(c)(1)-(2); 1295(a)(1); 1295(a)(4)(A) [with respect to patent interferences only]; 1295(a)(4)(B) [with respect to inter partes proceedings only]; 1295(a)(4)(C) [with respect to civil actions under 35 U.S.C. § 146 only]; and 1295(a)(6).

(2) No later than the time for filing a separate appendix under Federal Circuit Rule 30(a)(4), the parties must file one copy of either of the following (select only one):

(A) a joint statement of compliance with this rule indicating that settlement discussions have been conducted; or

(B) an agreement that the proceeding be dismissed under Federal Rule of Appellate Procedure 42(b).

(b) Other Settlement Discussions.

This rule does not preclude the parties from discussing settlement or agreeing to dismiss the proceedings at other times, including after oral argument but before decision.


Rule 33.1. Mediation Guidelines

The court may adopt mediation guidelines with respect to mediation of the cases pending before the court. These guidelines shall be binding on the parties.





(a) In General.

(1) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement.

The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date.

(c) Order and Contents of Argument.

The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals.

If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.




(e) Nonappearance of a Party.

If the appellee fails to appear for argument, the court must hear appellant’s argument. If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.

(f) Submission on Briefs.

The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal.

Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.





(a) Reply Brief Instead of Oral Argument.

If an appeal is not called for oral argument and the appellant declined to file a reply brief in anticipation of replying during oral argument, the appellant may file a reply brief within 14 days after the notice that the appeal will be submitted on the briefs.

(b) Time Allowed.

The time allowed each side for oral argument will be determined by the court. The clerk of court will advise counsel of the time allotted. A party is not obliged to use all the time allowed. The court may terminate the argument if it deems further argument unnecessary.

(c) Visual Aids.

(1) Visual Aids Used at a Trial or Administrative Hearing; Notice. If counsel intends to use at oral argument a visual aid used at a trial or administrative hearing, counsel must advise the clerk through CM/ECF no later than 14 days before argument of the proposed visual aid.

(2) Visual Aids Not Used at a Trial or Administrative Hearing; Notice. If counsel intends to use at oral argument a visual aid that was not used at a trial or administrative hearing, counsel must give notice to opposing counsel and notify the clerk of court by letter through CM/ECF no later than 21 days before the oral argument.

(3) Objection to the Use of Visual Aids. An objection to the proposed use of a visual aid at oral argument must be submitted through CM/ECF as a letter and filed no later than 7 days before the oral argument. If a party objects, the parties’ submissions will be treated as a motion and response and will be referred to the panel.

(4) Scope. This rule does not preclude use of a chalkboard or equivalent during oral argument.

(5) Disposition. The clerk of court may dispose of visual aids not removed by the parties.




COURT SESSIONS; HEARING DATE. Sessions of the court will be held as announced by the court. Sessions are held regularly in Washington, DC, but the court may sit elsewhere. Appeals are usually calendared for oral argument or submission without argument within 2 months after the briefs and joint appendix are filed. Counsel are advised of the firm date of hearing approximately 30 days before the session. Once scheduled, a case will not be postponed except on motion showing compelling reasons. The clerk’s office will issue a Notice of Docket Activity (NDA) when a case is fully briefed. Counsel should advise the clerk of court in writing within 7 days of such NDA of scheduling conflicts for the next three court weeks, or thereafter as soon as such conflicts are known, and should not wait until an actual conflict arises. Counsel requiring a courtroom accessible to the disabled, if oral argument is scheduled, should notify the clerk of court of this requirement when counsel files the entry of appearance. Counsel may elect to submit on the briefs to avoid delay in disposition or for any other reason.

ORAL ARGUMENT. Counsel must report to the clerk’s office at least 30 minutes before the scheduled session and before proceeding to the courtroom. The members of the panel will have read the briefs before oral argument. Counsel should, therefore, emphasize the dispositive issue or issues. Time allotted for oral argument is ordinarily 15 minutes per side (not per party or attorney), although the court may vary this depending on the nature of the case. The court may extend the allotted time during the argument, or it may terminate the argument, if it deems it appropriate.

JUSTIFICATION FOR CLAIM OF CONFIDENTIALITY. Unnecessarily designating material in the briefs and appendix as confidential may hinder the court’s preparation and issuance of opinions. Counsel must be prepared to justify at oral argument any claim of confidentiality.

CONDUCT OF ORAL ARGUMENT. Guidelines for the conduct of oral argument are available on the court’s website and should be viewed once a case is assigned for argument.





COPIES OF RECORDINGS AVAILABLE. Oral arguments are recorded for the convenience of the court. Recordings are available on the court’s website, www.cafc.uscourts.gov, free of charge.

OPEN TO PUBLIC. Unless held in camera, oral arguments are open to the public. Those in attendance whose attire or behavior reflects adversely on the dignity of the proceedings will be asked to leave.

ORAL ARGUMENT ON MOTIONS. Oral argument is ordinarily not granted on motions. See Federal Rule of Appellate Procedure 27(e).





Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered

A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance.

(b) Petition for Hearing or Rehearing En Banc.

A party may petition for a hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

(2) Except by the court’s permission:

(A) a petition for an en banc hearing or rehearing produced using a computer must not exceed 3,900 words; and

(B) a handwritten or typewritten petition for an en banc hearing or rehearing must not exceed 15 pages.




(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule.

(c) Time for Petition for Hearing or Rehearing En Banc

A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.

(d) Number of Copies.

The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case.

(e) Response.

No response may be filed to a petition for an en banc consideration unless the court orders a response.

(f) Call for a Vote.

A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.




Rule 35. En Banc Determination

(a) General.

(1) Arguing to a Panel to Overrule a Precedent. Although only the court en banc may overrule a binding precedent, a party may argue, in its brief and oral argument, to overrule a binding precedent without petitioning for hearing en banc. The panel will decide whether to ask the regular active judges to consider hearing the case en banc.

(2) Frivolous Petition. A petition for hearing or rehearing en banc that does not meet the standards of Federal Rule of Appellate Procedure 35(a) may be deemed frivolous and subject to sanctions.

(b) Statement of Counsel.

(1) Petition for Hearing En Banc. A petition that an appeal be initially heard en banc must contain the following statement of counsel at the beginning:

Based on my professional judgment, I believe this appeal requires an answer to one or more precedent-setting questions of exceptional importance: (set forth each question in a separate sentence).

/s/ __________________

ATTORNEY OF RECORD FOR _________________

(2) Petition for Rehearing En Banc. A petition that an appeal be reheard en banc must contain one or both of the following statements of counsel at the beginning:

Based on my professional judgment, I believe the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedent(s) of this court: (cite specific decisions).

Based on my professional judgment, I believe this appeal requires an answer to one or more precedent-setting questions of exceptional importance: (set forth each question in a separate sentence).

/s/ __________________

ATTORNEY OF RECORD FOR __________________




(c) Petition for Hearing or Rehearing En Banc; Response.

(1) Certificate of Interest. A certificate of interest (see Federal Circuit Rule 47.4) must be included in a petition for a hearing or rehearing en banc or a response to such a petition. The certificate must appear immediately following the cover.

(2) Items Excluded from Page or Word Limitation. The following items do not count against the page or word limitation in Federal Rule of Appellate Procedure 35(b)(2):

(A) the certificate of interest;

(B) the table of contents;

(C) the table of citations; and

(D) any addendum containing statutes, rules, regulations, and similar matters.

(3) Rehearing En Banc: Copy of Opinion or Judgment. A petition for a rehearing must include a copy of the opinion or the judgment of affirmance without opinion. The copy must be bound with the petition as an addendum.

(4) Number of Copies. If only nonconfidential copies are filed, in addition to the copy filed through CM/ECF, eighteen copies of a petition for hearing or rehearing en banc must be filed with the court. If confidential and nonconfidential copies are filed, in addition to the copies filed through CM/ECF, eighteen copies of the confidential petition and three copies of the nonconfidential petition must be filed with the court. Two copies of the confidential petition must be served on each party separately represented.




(d) Combined Petition for Panel Rehearing and Rehearing En Banc.

If a party chooses to file both a petition for panel rehearing, see Federal Circuit Rule 40, and a petition for a rehearing en banc, then the two must not be filed separately and they must be combined. A combined petition for panel rehearing and rehearing en banc must comply with Federal Circuit Rule 35(c). The cover of a combined petition must indicate that it is a combined petition.

(e) Contents of Petition for Hearing En Banc, Rehearing En Banc, and Combined Petition; Response.

(1) Petition for Hearing En Banc. The preferred contents and organization for a petition for a hearing en banc are:

(A) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2);

(B) the certificate of interest (see Federal Circuit Rule 47.4);

(C) the table of contents;

(D) the table of authorities;

(E) the statement of counsel required in Federal Circuit Rule 35(b);

(F) the argument; and

(G) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(2) Petition for Rehearing En Banc. The preferred contents and organization for a petition for a rehearing en banc are:









(F) the argument;

(G) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and

(H) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(3) Combined Petition for Panel Rehearing and Rehearing En Banc. The preferred contents and organization for a combined petition for panel rehearing and a rehearing en banc are:






(F) the points of law or fact overlooked or misapprehended by the panel of the court;

(G) the argument in support of a rehearing;

(H) the argument in support of rehearing en banc;

(I) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and

(J) the proof of service (see Federal Rule of Appellate Procedure 25(d)).




(4) Response. If the court requests a response, which must not exceed 3,900 words if produced using a computer or 15 pages if handwritten or typewritten, the preferred contents and organization are:





(E) argument against a rehearing, rehearing en banc, or both; and

(F) the proof of service (see Federal Rule of Appellate Procedure 25(d)).

(f) Additional Copies of Briefs in Cases to be Heard En Banc.

Within 7 days after the order granting a rehearing en banc, counsel must file 30 paper sets of the briefs and appendices that were before the panel that initially heard the appeal, unless the court directs otherwise.

(g) Amicus Curiae Brief.

Except by the court’s permission or direction, an amicus curiae brief submitted in connection with a petition for hearing en banc, a petition for rehearing en banc, or a combined petition for panel rehearing and rehearing en banc, must be accompanied by a motion for leave and must not exceed 2,600 words if produced using a computer or 10 pages if handwritten or typewritten. Except by the court’s permission or direction, any brief amicus curiae or any motion for leave to file a brief amicus curiae must be filed within 14 days of the date of filing of the petition or response that the amicus curiae supports. If the amicus curiae does not support either party, then the brief or motion for leave to file the brief must be filed within 14 days of the date of filing of the petition.




HEARING OR REHEARING EN BANC. The court may sua sponte order that an appeal be initially heard or be reheard en banc. The panel or a judge on the panel that is considering a case may at any time request the active judges of the court to hear or rehear the case en banc with or without further briefs or argument by counsel.

REHEARING EN BANC; SENIOR JUDGES. If a senior judge participated in the original hearing and disposition of a case for which rehearing en banc is granted, that senior judge may participate fully in the rehearing.

COMBINED PETITION FOR PANEL REHEARING AND REHEARING EN BANC. When a combined petition for panel rehearing and petition for rehearing en banc is filed, the petition for panel rehearing is decided first in the same manner as a petition for panel rehearing without an accompanying petition for rehearing en banc. If the panel grants the requested relief, the petition for rehearing en banc is deemed moot.

PETITION FOR REHEARING EN BANC REFERRED TO PANEL. A petition for rehearing en banc is presumed to request relief that can be granted by the panel that heard the appeal, and action on the petition for rehearing en banc will be deferred until the panel has an opportunity to grant the relief requested.

TIMELINESS. A petition for hearing or rehearing en banc is filed when the court receives it, not on mailing. The clerk of court will return an untimely petition for hearing or rehearing en banc.

NONPRECEDENTIAL OPINIONS. A petition for rehearing en banc is rarely appropriate if the appeal was the subject of a nonprecedential opinion by the panel of judges that heard it.




WRIT OF CERTIORARI. Filing a petition for a panel rehearing or for rehearing en banc is not a prerequisite to filing a petition for a writ of certiorari in the Supreme Court.


Rule 36. Entry of Judgment; Notice

(a) Entry.

A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment:

(1) after receiving the court’s opinion—but if settlement of the judgment’s form is required, after final settlement; or

(2) if a judgment is rendered without an opinion, as the court instructs.

(b) Notice.

On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion—or the judgment, if no opinion was written—and a notice of the date when the judgment was entered.




Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion

The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:

(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous;

(b) the evidence supporting the jury’s verdict is sufficient;

(c) the record supports summary judgment, directed verdict, or judgment on the pleadings;

(d) the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or

(e) a judgment or decision has been entered without an error of law.


SEPARATE JUDGMENT NOT PREPARED IN CERTAIN INSTANCES. A separate judgment is not prepared when a case is dismissed on consent or on motion or for failure to prosecute. The order of dismissal serves as the judgment when entered.




Rule 37. Interest on Judgment

(a) When the Court Affirms.

Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered.

(b) When the Court Reverses.

If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.




Rule 38. Frivolous Appeal

If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.


WARNING AGAINST FILING OR PROCEEDING WITH A FRIVOLOUS APPEAL OR PETITION. The court’s early decision in Asberry v. United States, 692 F.2d. 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel, parties, and pro se petitioners for pursuing frivolous appeals.

CHALLENGING A FRIVOLOUS APPEAL. If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must file a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been challenged as frivolous is expected to respond or to request dismissal of the case.




Rule 39. Costs

(a) Against Whom Assessed.

The following rules apply unless the law provides or the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States.

Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law.

(c) Costs of Copies.

Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.




(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must—within 14 days after entry of judgment—file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must—upon the circuit clerk’s request—add the statement of costs, or any amendment of it, to the mandate.

(e) Costs on Appeal Taxable in the District Court.

The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a bond or other security to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.




Rule 39. Costs

(a) Notice of Entitlement to Costs.

When the clerk of court provides notice of judgment or order disposing of an appeal, the clerk of court must advise which party or parties are entitled to costs.

(b) Bill of Costs; Copies; Objection.

A party must file the bill of costs on the form prescribed by the court. An objection to the bill of costs must not exceed 1,300 words if prepared using a computer or 5 pages if handwritten or typewritten.


COSTS WHEN THE UNITED STATES IS A PARTY. 28 U.S.C. § 2412(a) authorizes costs to be taxed against the United States; thus, costs (as defined in 28 U.S.C. § 1920) may be awarded both for and against the United States in this court.

LIMIT ON PRINTING COSTS. The costs taxable under Federal Rule of Appellate Procedure 39 are limited to the costs of preparing typewritten briefs (even if a party elects to have a brief printed) and of copying briefs and appendices.

CURRENT RATES. The following rates are the current maximum allowable costs: $6.00 per page for the table of page numbers of designated materials, the originals of briefs, and the table of contents for the appendix (whether printed, typewritten, or word processed); $0.08 per page for copying and collating; and $2.00 per copy for covers and binding.




ALLOWABLE COSTS. Costs may be billed for the number of copies of briefs and appendices required to be prepared by the court. The cost of service copies of the table or physical compilation of the designated materials may also be billed. Any other cost billed must be separately justified. The total billed for any item must be limited to the lesser of actual or allowable costs. Actual cost of briefs and appendices prepared in-house includes word processing, copying, and binding, at the amount normally billed to a client for these services. The United States may assume its actual costs are the allowable costs. The costs of correcting a nonconforming brief are not taxable. Counsel are urged to stipulate to costs.

PAYMENT OF COSTS TAXED. Pay the party or parties in whose favor costs are taxed by check sent to counsel for the party or to the party if the party appeared pro se. Do not involve the court in collection matters.

DOCKETING FEE AND COSTS IN A CASE INVOLVING A CLAIM UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994. No costs are taxed, and the docketing fee does not have to be paid, in a petition for review of a decision of the Merits Systems Protection Board if the underlying appeal involved a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)). 38 U.S.C. § 4323, 4324. The petitioner must complete Form 6B to inform the court that the case involves a claim under USERRA.





Rule 40. Petition for Panel Rehearing

(a) Time to File; Contents; Answer; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, unless an order shortens or extends the time, the petition may be filed by any party within 45 days after entry of judgment if one of the parties is:

(A) the United States;

(B) a United States agency;

(C) a United States officer or employee sued in an official capacity; or

(D) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf—including all instances in which the United States represents that person when the court of appeals’ judgment is entered or files that petition for that person.

(2) Contents. The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted.

(3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request.

(4) Action by the Court. If a petition for panel rehearing is granted, the court may do any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(C) issue any other appropriate order.



(b) Form of Petition; Length.

The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Except by the court’s permission:

(1) a petition for panel rehearing produced using a computer must not exceed 3,900 words; and

(2) a handwritten or typewritten petition for panel rehearing must not exceed 15 pages.


Rule 40. Petition for Panel Rehearing

(a) Contents of Petition for Panel Rehearing.

The preferred contents and organization for a petition for panel rehearing are:

(1) white cover or first page with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2);



(4) the points of law or fact overlooked or misapprehended by the court;

(5) the argument;

(6) the addendum containing a copy of the court’s opinion or judgment of affirmance without opinion sought to be reheard; and


(b) Addendum.

A copy of the opinion or judgment of affirmance without opinion sought to be reheard must be bound with the petition for panel rehearing as an addendum.




(c) Items Excluded from Page or Word Limitation; Other Material.

(1) Items Excluded. The following items do not count against the page or word limitation in Federal Rule of Appellate Procedure 40(b):

(A) the certificate of interest;

(B) the table of contents;

(C) the table of citations;

(D) the addendum containing a copy of the opinion or judgment of affirmance without opinion; and

(E) any addendum containing statutes, rules, regulations, and similar matters.

(2) Other Material. Material not listed in this Federal Circuit Rule 40 may not be included in the addendum or in an appendix without leave of the court.

(d) Answer.

If the court requests an answer, which must not exceed 3,900 words if prepared using a computer or 15 pages if handwritten or typewritten, the preferred contents and organization for the answer are:

(1) white cover or first sheet with the information prescribed in Federal Rule of Appellate Procedure 32(a)(2);



(4) the argument; and





(e) Time.

Except for a civil case in which the United States or its officer or agency is a party, a petition for panel rehearing may be filed within 30 days after entry of judgment. If the United States or its officer or agency is a party, a petition for panel rehearing may be filed within 45 days after entry of judgment. The time limits set forth in this rule also apply to a motion for panel reconsideration of a dispositive panel order.

(f) Informal Petition for Panel Rehearing; Answer.

(1) Informal Petition. A pro se party may file three copies of an informal petition for panel rehearing in letter form not to exceed 15 typewritten double-spaced pages, attaching to each a copy of the opinion or judgment sought to be reheard.

(2) Informal Answer. If the court requests an answer to an informal petition for panel rehearing, or if the court requests a pro se party to answer a formal petition for panel rehearing, the answer may be informal, following the standards prescribed for informal briefs. The informal answer may not exceed 15 typewritten double-spaced pages, and three copies must be filed.

(g) Amicus Curiae Brief.

Except by the court’s permission or direction, an amicus curiae brief submitted in connection with a petition for panel rehearing must be accompanied by a motion for leave to file and must not exceed 2,600 words if produced using a computer or 10 pages if handwritten or typewritten. Except by the court’s permission or direction, any brief amicus curiae or any motion for leave to file a brief amicus curiae must be filed within 14 days of the date of filing of the petition or response that the amicus curiae supports. If the amicus curiae does not support either party, then the brief or motion for leave to file the brief must be filed within 14 days of the date of filing of the petition.




PETITION FOR PANEL REHEARING NOT FILED WHEN MAILED. A petition for panel rehearing must be received by the court or filed through CM/ECF within the time fixed for filing. The time provided in Federal Circuit Rule 40(e) runs from the date the judgment is entered (see Federal Rule of Appellate Procedure 36), not from the date counsel or the pro se party receives the opinion or order. Therefore, Federal Rule of Appellate Procedure 26(c) does not apply. The clerk of court may return an untimely petition for panel rehearing.

ACTION BY THE COURT. When a petition for panel rehearing is filed, the clerk of court will transmit copies to the panel that decided the case. The clerk of court will enter an order denying the petition unless a majority of the panel agrees to rehear the case. Rehearing before the panel may take place with or without further briefing or oral argument by the parties as the court directs.


Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

(a) Contents.

Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs.

(b) When Issued.

The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time by order.




(c) Effective Date.

The mandate is effective when issued.

(d) Staying the Mandate Pending a Petition for Certiorari.

(1) Motion to Stay. A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the petition would present a substantial question and that there is good cause for a stay.

(2) Duration of Stay; Extensions. The stay must not exceed 90 days, unless:

(A) the period is extended for good cause; or

(B) the party who obtained the stay notifies the circuit clerk in writing within the period of the stay:

(i) that the time for filing a petition has been extended, in which case the stay continues for the extended period; or

(ii) that the petition has been filed, in which case the stay continues until the Supreme Court’s final disposition.

(3) Security. The court may require a bond or other security as a condition to granting or continuing a stay of the mandate.

(4) Issuance of Mandate. The court of appeals must issue the mandate immediately on receiving a copy of a Supreme Court order denying the petition, unless extraordinary circumstances exist.




Rule 41. Issuance of Mandate

An order dismissing a case on consent or for failure to prosecute, or dismissing, remanding, or transferring a case on motion, will constitute the mandate. The date of the certified order is the date of the mandate. In an appeal dismissed or transferred by the court sua sponte in an opinion, the mandate will issue in regular course.


RELATION OF MANDATE TO APPLICATION FOR CERTIORARI; STAY. That a mandate has issued does not affect the right to apply to the Supreme Court for a writ of certiorari. Consequently, a motion to stay the mandate should advance reasons for the stay beyond the mere intention to apply for certiorari, e.g., to forestall action in the trial court or agency that would necessitate a remedial order of the Supreme Court if the writ of certiorari were granted.




Rule 42. Voluntary Dismissal

(a) Dismissal in the District Court.

Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant’s motion with notice to all parties.

(b) Dismissal in the Court of Appeals.

The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. But no mandate or other process may issue without a court order. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.


Rule 43. Substitution of Parties

(a) Death of a Party.

(1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. A party’s motion must be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings.

(2) Before Notice of Appeal Is Filed—Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative—or, if there is no personal representative, the decedent’s attorney of record—may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1).




(3) Before Notice of Appeal Is Filed—Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1).

(b) Substitution for a Reason Other Than Death.

If a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies.

(c) Public Officer: Identification; Substitution.

(1) Identification of Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer’s official title rather than by name. But the court may require the public officer’s name to be added.

(2) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer’s successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution.




Rule 44. Case Involving a Constitutional Question When the United States or the Relevant State is Not a Party

(a) Constitutional Challenge to Federal Statute.

If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General.

(b) Constitutional Challenge to State Statute.

If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.


RAISING A CONSTITUTIONAL QUESTION IN A BRIEF OR MOTION. Inclusion of a constitutional challenge in a brief or motion is insufficient to satisfy the written notice requirements of Federal Rule of Appellate Procedure 44. Parties must file a separate notice before the clerk of court will certify a matter to the Attorney General of the United States or the attorney general of a State.




Rule 45. Clerk’s Duties

(a) General Provisions.

(1) Qualifications. The circuit clerk must take the oath and post any bond required by law. Neither the clerk nor any deputy clerk may practice as an attorney or counselor in any court while in office.

(2) When Court Is Open. The court of appeals is always open for filing any paper, issuing and returning process, making a motion, and entering an order. The clerk’s office with the clerk or a deputy in attendance must be open during business hours on all days except Saturdays, Sundays, and legal holidays. A court may provide by local rule or by order that the clerk’s office be open for specified hours on Saturdays or on legal holidays other than New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.

(b) Records.

(1) The Docket. The circuit clerk must maintain a docket and an index of all docketed cases in the manner prescribed by the Director of the Administrative Office of the United States Courts. The clerk must record all papers filed with the clerk and all process, orders, and judgments.

(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk must give preference to appeals in criminal cases and to other proceedings and appeals entitled to preference by law.

(3) Other Records. The clerk must keep other books and records required by the Director of the Administrative Office of the United States Courts, with the approval of the Judicial Conference of the United States, or by the court.




(c) Notice of an Order or Judgment.

Upon the entry of an order or judgment, the circuit clerk must immediately serve a notice of entry on each party, with a copy of any opinion, and must note the date of service on the docket. Service on a party represented by counsel must be made on counsel.

(d) Custody of Records and Papers.

The circuit clerk has custody of the court’s records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk’s office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed.




Rule 45. Clerk of Court’s Duties

(a) Dismissal by Clerk of Court; Reconsideration.

The clerk of court may dismiss an appeal for a failure to follow the Federal Rules of Appellate Procedure or these Federal Circuit Rules. A party may move that the court reconsider such dismissal. A motion for reconsideration must:

(1) be filed within 14 days after issuance of the order of dismissal;

(2) be in the form prescribed by Federal Rule of Appellate Procedure 27 and Federal Circuit Rule 27; and

(3) not exceed 5 pages.

(b) Informal Motion for Reconsideration.

A pro se party may file one copy of an informal motion, which may be in the form of a letter, for reconsideration of the dismissal. The informal motion must not exceed 5 typewritten double-spaced pages. A copy of the dismissal order must be attached to the original and each copy of the informal motion.

(c) Authority to Enter Orders.

The clerk of court may enter an order “For the Court” only when authorized by these rules or at the direction of a judge or the court.

(d) Communication with the Court.

All correspondence and telephone calls about cases and motions and all press inquiries must be directed to the clerk of court.




Rule 46. Attorneys

(a) Admission to the Bar.

(1) Eligibility. An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

(2) Application. An applicant must file an application for admission, on a form approved by the court that contains the applicant’s personal statement showing eligibility for membership. The applicant must subscribe to the following oath or affirmation:

“I, ________________________, do solemnly swear [or affirm] that I will conduct myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.”

(3) Admission Procedures. On written or oral motion of a member of the court’s bar, the court will act on the application. An applicant may be admitted by oral motion in open court. But, unless the court orders otherwise, an applicant need not appear before the court to be admitted. Upon admission, an applicant must pay the clerk the fee prescribed by local rule or court order.

(b) Suspension or Disbarment.

(1) Standard. A member of the court’s bar is subject to suspension or disbarment by the court if the member:

(A) has been suspended or disbarred from practice in any other court; or

(B) is guilty of conduct unbecoming a member of the court’s bar.

(2) Procedure. The member must be given an opportunity to show good cause, within the time prescribed by the court, why the member should not be suspended or disbarred.




(3) Order. The court must enter an appropriate order after the member responds and a hearing is held, if requested, or after the time prescribed for a response expires, if no response is made.

(c) Discipline.

A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule. First, however, the court must afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing.


Rule 46. Attorneys

(a) Eligibility.

An attorney is eligible for admission to the bar of this court if that attorney is of good moral and professional character and is admitted to practice before and of good standing in:

(1) any of the courts listed in Federal Rule of Appellate Procedure 46(a);

(2) the United States Court of International Trade;

(3) the United States Court of Federal Claims;

(4) the United States Court of Appeals for Veterans Claims; or

(5) the District of Columbia Court of Appeals.




(b) Procedure for Admission.

(1) Motion in Open Court. An attorney may be admitted to the bar in open court by appearing personally with a sponsor who is a member of the bar of this court and who states the applicant’s qualifications and moves the admission. Motions for admission to the bar will be entertained at the opening of each session of court.

(2) Written Motion by Member of the Court’s Bar. An attorney may be admitted on written motion of a member of the bar of the court who states the applicant’s qualifications.

(3) Written Motion by Attorney. An attorney may be admitted on that attorney’s own motion, accompanied by a certificate of good standing from a court listed in Federal Rule of Appellate Procedure 46(a) or Federal Circuit Rule 46(a). The certificate must be dated within 30 days of the motion for admission and must bear the seal of the issuing court. A written motion for admission must be submitted on a form approved by this court. The clerk of court will furnish the form.

(4) Oath. Each attorney admitted to the bar of this court must take an oath prescribed by the court.

(c) Admission Fee; Pay.gov.

The fee for admission to the bar of the court and the fee for a duplicate certificate are posted on the court’s website. Payment must be made through CM/ECF using pay.gov. The applicant will receive a certificate of admission.

(d) Government Attorney.

An attorney for any federal, state, or local government office or agency may appear before this court in connection with that attorney’s official duties without formal admission to the bar of the court.

(e) Change of Name, Address, or Telephone Number.

An attorney admitted to the bar of this court must promptly notify the clerk of court of a change of name, address, email address or telephone number.





(f) Disciplinary Action.

Disciplinary action against an attorney will be conducted in accordance with the Federal Circuit Attorney Discipline Rules.


Rule 47. Local Rules by Courts of Appeals

(a) Local Rules.

(1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order. A local rule must be consistent with—but not duplicative of—Acts of Congress and rules adopted under 28 U.S.C. §2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended.

(2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement.

(b) Procedure When There Is No Controlling Law.

A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.




Rule 47.1. Sessions and Places of Holding Court

(a) Sessions.

Sessions of the court will be held as the court announces.

(b) Places of Holding Court.

The court may hold sessions in any place named and permitted in 28 U.S.C. § 48.


Rule 47.2. Panels

(a) Panels.

Cases and controversies will be heard and determined by a panel consisting of an odd number of at least three judges, two of whom may be senior judges of the court.

(b) Assignment of Cases.

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.




Rule 47.3. Appearance

(a) Party and Amicus Curiae Must Be Represented; Pro Se Party; Attorney of Record; Of Counsel.

An individual (not a corporation, partnership, organization, or other legal entity) may choose to be represented by counsel or to represent himself or herself pro se, but may not be represented by a nonattorney. An individual represented by counsel, each other party in an action, each party seeking to intervene, and each amicus curiae must appear through an attorney authorized to practice before this court and must designate one attorney as the principal attorney of record. Any other attorney assisting the attorney of record must be designated as “of counsel.” Every attorney named on a brief must enter an appearance, except that the filing of an entry of appearance does not apply to government officials who, by reason of their status as supervisors or heads of offices, are listed on briefs in their ex officio capacity. Documents and matters that are sent by the court will be transmitted only to the principal attorney of record.

(b) Petition for Writ of Mandamus or Prohibition.

The attorney whose name, address, email address and telephone number appears first on a petition for a writ of mandamus or a writ of prohibition will be deemed attorney of record.

(c) Appearance; Contents; Service of Papers Before Appearance; Withdrawal of Counsel.

(1) Appearance. Each attorney who intends to participate in an appeal must file, within 14 days of docketing, an entry of appearance on the form provided by the clerk of court. A pro se party must also file an entry of appearance unless all the necessary information appears on the petition for review or notice of appeal. Any attorney retained for the case later must file an entry of appearance within 14 days after being retained. An attorney representing a party seeking or permitted to intervene, and for each amicus curiae, must file an entry of appearance with the motion for leave to intervene (if required) or with the brief amicus curiae. If an attorney’s entry of appearance is first submitted after a case is assigned to a merits panel, the appearance will be treated as a motion to appear and will be transmitted to the panel, which may choose to reject the entry of appearance. Counsel




must immediately file an updated Entry of Appearance if representation changes, including a change in contact information. Electronic filers must also report a change in contact information to the PACER Service Center.

(2) Contents. The appearance must include the name of the party or parties represented and the name, address, email address, and telephone number of the attorney or the pro se party. An attorney’s appearance must show the name of the law firm or public or quasi-public legal office with which the attorney is associated. A new entry of appearance must be filed and served any time the information on record changes.

(3) Certificate of Interest. A certificate of interest must be filed at the same time as the first-filed entry of appearance. See Federal Circuit Rule 47.4. Both documents are due within 14 days of the date of docketing of the appeal or petition.

(4) Service of Papers Before Appearance. Until an attorney files a written entry of appearance, service of all papers must be made on the attorney of record in the proceeding below at the last known address. If no attorney has filed an entry of appearance through ECF for a party, service of any matters must be made outside of CM/ECF until an attorney enters an appearance. In a pro se case, unless an attorney files an entry of appearance, service of all papers must be made on the pro se party at the last known address.

(5) Withdrawal of Counsel. An attorney other than a government attorney who has been properly replaced, may not withdraw from representing a party without notice to the party, filing a motion with the court, and obtaining the court’s consent.




(d) Signature.

At least one copy of each brief, petition, motion, application, notice, or other paper presented for filing must contain the signature of the pro se party or the electronic signature of the attorney who has entered an appearance. When no attorney appearing for a party is available to sign, any person having actual authority may sign on behalf of the attorney of record, attaching an affidavit of authority or an unsworn declaration of authority under penalty of perjury pursuant to 28 U.S.C. § 1746.


FORM FOR ENTRY OF APPEARANCE. See Form 8, for a form for entry of appearance.

FILINGS REQUIRING SIGNATURE AND APPEARANCE. After docketing, the clerk will accept no filing required to be signed, unless it is signed by a pro se party or an attorney who is a member of the bar, unless exempted under Federal Circuit Rule 46, and unless the pro se party or attorney has entered an appearance in the case.

NEW COUNSEL ON APPEAL. New counsel on appeal should provide a copy of the entry of appearance form filed in this court to the lower court or agency to expedite service of the certified list and other communications.

POST-PANELING ENTRY OF APPEARANCE. When an entry of appearance is filed after the case has been assigned to a merits panel, that entry will be transmitted to the merits panel as a motion. Notification of the disposition of the motion, accepting or rejecting the entry of appearance, will be provided to counsel through CM/ECF.

http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/forms/form8.pdf




Rule 47.4. Certificate of Interest

(a) Purpose; Contents.

To determine whether recusal by a judge is necessary or appropriate, an attorney—except an attorney for the United States—for each party, including a party seeking or permitted to intervene, and for each amicus curiae, must file a certificate of interest. The certificate of interest must be filed within 14 days of the date of docketing of the appeal or petition, except that for an intervenor or amicus curiae, the certificate of interest must be filed with the motion and with the brief. A certificate of interest must be in the form set forth in the appendix to these rules, and must contain the information below in the order listed. Negative responses, if applicable, are required as to each item on the form.

(1) The full name of every party or amicus represented in the case by the attorney.

(2) The name of the real party in interest if the party named in the caption is not the real party in interest.

(3) The corporate disclosure statement prescribed in Federal Rule of Appellate Procedure 26.1 and identifying each party with its parent corporation or any publicly held corporation that owns 10% or more of its stock.

(4) The names of all law firms and the partners and associates that have appeared for the party in the lower tribunal or are expected to appear for the party in this court and who are not already listed on the docket for the current case.

(5) The title and number of any case known to counsel to be pending in this or any other court or agency that will directly affect or be directly affected by this court’s decision in the pending appeal.

(b) Filing.

The certificate must be filed with the entry of appearance. The certificate must also be included with each motion, petition, or response thereto, and in each principal brief and brief amicus curiae. When ownership, representation or contact information changes an updated Certificate of Interest must be filed when the change occurs.




(c) Changes.

If any of the information required in Federal Circuit Rule 47.4(a) changes after the certificate is filed and before the mandate has issued, the party must file an amended certificate within 7 days of the change.


Rule 47.5. Statement of Related Cases

Each principal brief and certificate of interest must contain a statement of related cases indicating:

(a) whether any other appeal in or from the same civil action or proceeding in the lower court or body was previously before this or any other appellate court, stating:

(1) the title and number of that earlier appeal;

(2) the date of decision;

(3) the composition of the panel; and

(4) the citation of the opinion in the Federal Reporter;

(b) the title and number of any case known to counsel to be pending in this or any other court or agency that will directly affect or be directly affected by this court’s decision in the pending appeal.

Practice Note to Rule 47.5

CASES THAT ONLY INVOLVE SAME GENERAL LEGAL ISSUE. Cases are not “related” within the meaning of Rule 47.4(a)(5) and Rule 47.5(b) simply because they involve the same general legal issue, for example, an issue as to the correct construction of a statute or regulation.



FEDERAL CIRCUIT RULE 47.6.

[Reserved]


Rule 47.7. Attorney Fees and Expenses Incurred in This Court

(a) Time for Filing; Response.

(1) Generally. The court may award attorney fees and expenses when authorized by law. An award may be made by the court on its own motion or on application of a party.

(2) Time for Filing. An application for an award of attorney fees and expenses must be served and filed within the time prescribed by the statute authorizing the award. If the statute does not prescribe a time, the application must be made within 30 days after entry of the judgment or order denying rehearing, whichever is later. However, if a petition for writ of certiorari is filed, the application will not be due until 30 days after all proceedings in the Supreme Court are concluded.

(3) Response. No response may be filed to an application for attorney fees and expenses unless directed by the court, but no application will be granted without the court giving the party an opportunity to submit a response.

(4) Award on the Court’s Motion. A party awarded attorney fees and expenses by the court on its own motion must file and serve a bill of attorney fees and expenses containing the information required in Federal Circuit Rule 47.7(b)(2)(A)-(C) with the bill of costs authorized by Federal Rule of Appellate Procedure 39. Any objection must be filed within the time prescribed in Federal Rule of Appellate Procedure 39.

(b) Content of Application.

(1) Application under the Equal Access to Justice Act. An application for attorney fees and expenses under the Equal Access to




Justice Act must be made on Form 20.

(2) Other Applications. Each other application for attorney fees and expenses must cite the authority for an award and must indicate how the prerequisites for an award, including timeliness, are met. In addition, each application must contain a statement, under oath, specifying:

(A) the nature of each service rendered;

(B) the amount of time expended rendering each type of service; and

(C) the customary charge for each type of service rendered.


Rule 47.8. In Camera Proceedings

On motion showing that the interest of justice requires it, the court may sit in camera, seal its record, or both.





Rule 47.9. Petition for Judicial Review Under 5 U.S.C. § 7703(d)

(a) Time for Filing.

A petition for review of a final order or decision of the Merit Systems Protection Board or of an arbitrator pursuant to 5 U.S.C. § 7703(d) must be filed by the Director of the Office of Personnel Management within 60 days after the date the Board or arbitrator issues notice of the final order or decision of the Board or arbitrator.

(b) Contents.

The Director’s petition must contain:

(1) a statement of jurisdiction (see Federal Rule of Appellate Procedure 28(a)(4));

(2) the Director’s determination that the Board or arbitrator erred in interpreting a civil service law, rule, or regulation affecting personnel management and the reasons supporting the determination;

(3) the Director’s determination that the decision or order of the Board or arbitrator will have a substantial impact on a civil service law, rule, regulation, or policy directive, and the reasons supporting the determination; and

(4) an appendix including a copy of the order or decision for which review is sought and any relevant portion of the record on review; the appendix may also include documents not part of the record on review that are relevant to the determination that the decision will have substantial impact.

(c) Length of Petition, Answer and Reply; Separate Brief.

A petition or answer must not exceed 5,200 words if produced using a computer or 20 pages if handwritten or typewritten. A reply must not exceed 2,600 words if produced using a computer or 10 pages if handwritten or typewritten. A separate brief supporting a petition, answer, or reply is not permitted.




(d) Service and Filing.

The Director must file the petition with the clerk of court through CM/ECF and must serve a copy of the petition on the named respondents, all other parties before the Board or arbitrator, and the Board or arbitrator.

(e) Notice of Docketing.

On receipt, the clerk of court will enter the petition on the docket as a miscellaneous case and notify the Director, the named respondents, all other parties before the Board or arbitrator, and the Board or arbitrator of the docketing date.

(f) Appearance by Other Than the Named Respondent.

The Board or arbitrator and any other party to the proceeding desiring to participate in the proceeding in this court must enter an appearance. Anyone entering an appearance will be deemed a respondent.

(g) Answer; Appendix; Reply.

Within 21 days after service of a petition, any respondent may file an answer. The answer may include an appendix containing any relevant portion of the record on review not included in the appendix to the petition; the appendix may also include documents or affidavits not part of the record on review that are relevant to the determination that the decision will have substantial impact. Within 14 days after service of an answer, the Director may file a reply.

(h) Action by the Court.

Granting a petition for review is at the discretion of the court. On receipt of an order granting review, the clerk of court must enter the petition for review on the general docket. The petition for review will then proceed as if filed under Federal Rule of Appellate Procedure 15.




Rule 47.10. Dismissal of a Bankruptcy Stay Case

An appeal stayed in accordance with the bankruptcy stay provisions of 11 U.S.C. § 362 may be dismissed by the clerk of court without prejudice to the appellant reinstating the appeal within 30 days after the stay is lifted or the bankruptcy proceeding ends.


Rule 47.11. Quorum

A quorum is a simple majority of a panel of the court or of the court en banc. In determining whether a quorum exists for en banc purposes, more than half of all circuit judges in regular active service, including recused or disqualified judges, must be eligible to participate in the en banc process. If a judge of a panel that has heard oral argument or taken under submission any appeal, petition, or motion is unable to continue with consideration of the matter because of death, illness, resignation, incapacity, or recusal, the remaining judges will determine the matter if they are in agreement and no remaining judge requests the designation of another judge. If the remaining judges are not in agreement or if any remaining judge requests the designation of another judge, the remaining judges will promptly advise the chief judge who will secure another judge to sit with the panel.




Rule 47.12. Action for Judicial Review Under 38 U.S.C. § 502

(a) Time for Filing.

An action for judicial review under 38 U.S.C. § 502 of a rule and regulation of the Department of Veterans Affairs must be filed with the clerk of court within 60 days after issuance of the rule or regulation or denial of a request for amendment or waiver of the rule or regulation.

(b) Parties.

Only a person or persons adversely affected by the rule or regulation or the rulemaking process may bring an action for judicial review. The Secretary of Veterans Affairs must be named the respondent.

(c) Contents.

The action for judicial review must describe how the person or persons bringing the action are adversely affected and must specifically identify either:

(1) the rule, regulation, opinion, or order of the Department of Veterans Affairs separately stated and published in the Federal Register pursuant to 5 U.S.C. § 552(a)(1) on which judicial review is sought; or

(2) the notice-and-comment rulemaking process by the Department of Veterans Affairs pursuant to 5 U.S.C. § 553 on which judicial review is sought.

(d) Procedure.

Except as provided in this rule, the procedures applicable to an action for judicial review under 38 U.S.C. § 502 are the same as those for a petition for review under Federal Rule of Appellate Procedure 15.




Rule 48. Masters

(a) Appointment; Powers.

A court of appeals may appoint a special master to hold hearings, if necessary, and to recommend factual findings and disposition in matters ancillary to proceedings in the court. Unless the order referring a matter to a master specifies or limits the master’s powers, those powers include, but are not limited to, the following:

(1) regulating all aspects of a hearing;

(2) taking all appropriate action for the efficient performance of the master’s duties under the order;

(3) requiring the production of evidence on all matters embraced in the reference; and

(4) administering oaths and examining witnesses and parties.

(b) Compensation.

If the master is not a judge or court employee, the court must determine the master’s compensation and whether the cost is to be charged to any party.


Rule 49. Seal of the Court

The clerk of court is the keeper of the seal, which is the means of authentication of all records and certificates issued from this court.




Rule 50. Employee and Former Employee

No employee of the court may engage in the practice of law. No former employee of the court may participate or assist, by representation, consultation, or otherwise, in any case that was pending in the court during the period of employment. For purposes of this rule, a person serving at the court as an intern, whether in a judge’s chambers or otherwise, is considered an employee of the court, whether such service is for pay, for law school credit, or voluntary.


ALL FUTURE PARTICIPATION AND ASSISTANCE PROHIBITED. A former employee of the court is prohibited from participating or assisting in any case after employment with the court if the case was before this court at any point during the person’s employment. Thus, for example, a former employee is prohibited from participating or assisting in a case in a trial forum, agency, or other forum if the case was before this court during the person’s employment and was remanded by this court or otherwise continued in the trial forum, agency, or other forum for any other reason. A former employee is also prohibited, for example, from participating or assisting in the case if it is subsequently before this court again or if it is before the Supreme Court of the United States. In addition to Rule 50, former employees should also consult any applicable local bar rules and Canon 3(d) of the Code of Conduct for Judicial Employees.




Rule 51. Complaint of Judicial Misconduct or Disability

The procedures for processing a complaint of judicial misconduct or disability are pursuant to 28 U.S.C. § 351, et seq. The clerk of court will provide copies of these procedures on request.


Rule 52. Fees

(a) Judicial Conference Schedule of Fees.

(1) General. The fees charged by the clerk of court must be the fees prescribed by the Judicial Conference of the United States pursuant to 28 U.S.C. § 1913 or by this rule. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in subsections (3)(B), (D) and (E) of this rule. No fees under this schedule shall be charged to federal agencies or programs which are funded from judiciary appropriations, including, but not limited to, agencies, organizations, and individuals providing services authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, and Bankruptcy Administrator programs. Fees paid to the court by attorneys must be made through CM/ECF using pay.gov.

(2) Docketing Fee. The docketing fee will be paid to the trial court clerk of court on filing a notice of appeal in that court. The docketing fee will be paid to this court’s clerk of court on filing any other proceeding, including an appeal or petition for review from the Patent and Trademark Office or the Merit Systems Protection Board, or any other agency, and including an extraordinary writ.

(3) Judicial Conference Schedule of Fees. The fees charged by the court pursuant to the Judicial Conference Schedule of Fees are posted on the court’s website.

(4) Electronic Public Access Fee Schedule. The fees for electronic public access are authorized by 28 U.S.C. § 1913 and promulgated in the Judicial Conference Electronic Public Access fee schedule.

http://www.uscourts.gov/services-forms/fees/electronic-public-access-fee-schedule




(b) Copies of Opinions.

All court opinions are available on the court’s website or PACER without charge. Printed copies of court orders and opinions are subject to the Electronic Public Access fee schedule, and are available without cost to those persons and organizations whose names are on a public interest list established by order of the court.

(c) Fees To Be Paid in Advance.

The clerk of court is not required to docket any proceeding or perform any other service until all fees due the clerk of court are paid unless a party has been granted leave to proceed in forma pauperis.

(d) Dismissal of Appeal or Petition for Failing To Pay Docketing Fee.

If a proceeding is docketed without prepayment of the docketing fee, the appellant or petitioner must pay the fee within 14 days after docketing. If the clerk of court does not receive the docketing fee, a completed motion for leave to proceed in forma pauperis, or a completed Form 6B within 14 days of the date of docketing of the appeal or petition, the clerk of court is authorized to dismiss the appeal or petition.

(e) Online Payments; Checks.

Counsel shall use pay.gov to make payments for all applicable fees. Instructions for use of pay.gov are available on the court’s website. For matters that are not paid through pay.gov, and for pro se parties who do not use CM/ECF, checks in payment of fees must be made payable to the Clerk of Court, United States Court of Appeals for the Federal Circuit.


NO REFUND OF FEES. Fees are deposited with the Treasury Department on receipt. The clerk of court cannot refund any fee once it is deposited.


http://www.uscourts.gov/services-forms/fees/electronic-public-access-fee-schedule






CHECKS AND DRAFTS. Checks and drafts are accepted subject to collection, and full credit will be given only when the check or draft is accepted by the financial institution on which it is drawn.

DOCKETING FEE AND COSTS IN A CASE INVOLVING A CLAIM UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994. The docketing fee does not have to be paid, and no costs are taxed, in a petition for review of a decision of the Merits Systems Protection Board if the underlying appeal involved a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)). 38 U.S.C. § 4323, 4324. The petitioner must complete Form 6B to inform the court that the case involves a claim under USERRA.


Rule 53. Judicial Conference

There will be held, at a time and place designated by the chief judge, a conference to consider the business of the court and to advise means of improving the administration of justice. The chief judge presides at the conference. All members of the bar of the court may be members of the conference and may participate in its discussions and deliberations. Registrants must pay a fee to be applied to the payment of expenses of the conference.





Rule 54. Library

(a) General.

The library in the Howard T. Markey National Courts Building serves this court and the United States Court of Federal Claims.

(b) Authorized Users.

The library’s authorized users are limited to:

(1) the judges of the courts;

(2) their court staff;

(3) members of the bars of either court;

(4) pro se litigants with pending cases in either court;

(5) attorneys employed by the United States; and

(6) employees of the Administrative Office of the United States Courts and the Federal Judicial Center.

(c) Suspension; Closing.

The librarian may suspend an authorized user for cause and may, when warranted, close the library to all except judges and the court staff.

(d) Books: Check Out and Removal.

Only judges and the court staff may check out books from the library. Library books must not be removed from the premises of the Howard T. Markey National Courts Building without express permission from the librarian.

Federal Circuit Attorney Discipline Rules




Introduction

The United States Court of Appeals for the Federal Circuit, in furtherance of its power and responsibility under Federal Rule of Appellate Procedure 46 and its inherent power and responsibility to supervise the conduct of attorneys who are members of its bar, promulgates the following Attorney Discipline Rules.

The rules contemplate that a disciplinary proceeding stemming from most misconduct that occurs before a merits or motions panel will be conducted by that panel. A proceeding stemming from more serious misconduct, based on conviction of a serious crime, or imposing reciprocal discipline will be conducted by a Standing Panel on Attorney Discipline composed of three judges. In conformance with Federal Rule of Appellate Procedure 46, a hearing, if requested, will be available in any proceeding. The record in an ongoing proceeding will be confidential unless otherwise ordered. At the conclusion of a proceeding in which discipline is imposed, the final order and the record will be made a public record. A final order issued by a panel will be reviewable in a manner analogous to review under Federal Rules of Appellate Procedure 35 and 40.

Rule 1. Definitions

(a) Another Court. Another court means any Court of the United States or any court of a state, the District of Columbia, a territory, or a commonwealth of the United States. For purposes of these rules, another court also includes the United States Court of Appeals for Veterans Claims and the United States Court of Federal Claims.

(b) Agency. Agency means any agency of the United States as defined in 5 U.S.C. § 551.

(c) Serious Crime. Serious crime means (1) any felony or (2) any lesser crime a necessary element of which, as determined by statutory or common law definition of such crime in the jurisdiction where the conviction occurred, is (i) interference with the administration of justice, (ii) false swearing, (iii) misrepresentation, (iv) fraud, (v) willful failure to file an income tax return, (vi) deceit, (vii) bribery, (viii) extortion, (ix) misappropriation, (x) theft, or (xi) an attempt or conspiracy or solicitation of another to commit a serious crime.

Rule 2. Grounds for Discipline

(a) Conviction. Conviction in another court of a serious crime may be the basis for discipline.




(b) Disbarment or Suspension. Reciprocal discipline may be imposed based on disbarment or suspension by another court or by an agency.

(c) Resignation. Disbarment may be imposed based on an attorney’s disbarment on consent or resignation from the bar of another court or an agency while an investigation into an allegation of misconduct is pending.

(d) Act or Omission. An act or omission by an attorney that violates the Federal Rules of Appellate Procedure, the Federal Circuit Rules, these rules, or orders or instructions of the court, other than an act or omission contemplated by Rule 3(d) of these rules, may be the basis for discipline. A failure to notify the court in compliance with Rule 6(a) may itself be the basis for discipline.

(e) Conduct Unbecoming. Any conduct before the court unbecoming a member of the bar may be the basis for discipline.

Rule 3. Types of Discipline

(a) Discipline for Misconduct. Discipline for attorney misconduct may consist of disbarment, suspension for a definite period, monetary sanction, public reprimand, private reprimand, or any other disciplinary action that the court deems appropriate.

(b) Disbarment. Disbarment is the presumed discipline for conviction of a serious crime.

(c) Reciprocal Discipline. The imposition of reciprocal disbarment or suspension is the presumed discipline based on the disbarment or suspension of an attorney by another court or an agency. Disbarment based on an attorney’s disbarment on consent or resignation from a bar of another court or an agency while an investigation into an allegation of misconduct is pending constitutes reciprocal discipline.

(d) Sanctions Under Other Provisions. Assessment of damages, costs, expenses, or attorney fees under Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, or similar statutory provision are not disciplinary sanctions within the meaning of these rules and are not governed by these rules.

Rule 4. Disciplinary Matters Referred to the Court

(a) Docketing. The Clerk shall maintain a miscellaneous attorney disciplinary matter docket and shall assign a number to each matter.




(b) Merits or Motions Panel. When attorney misconduct under these rules occurs within the context of a case before a merits panel or a motions panel, that panel may impose any discipline except disbarment, suspension, or a monetary sanction over $1,000. The proceeding is conducted in accordance with Rule 5. In lieu of conducting its own proceeding a majority of the panel may refer the matter to the Standing Panel on Attorney Discipline.

(c) Standing Panel on Attorney Discipline.

(1) The Standing Panel shall conduct proceedings in any matter in which disbarment, suspension, or a monetary sanction over $1000 may be considered, or in any matter referred by a merits or motions panel.

(2) The Standing Panel shall consist of three judges, at least two of whom shall be active judges, appointed by the Chief Judge. The Chief Judge may serve as a member of the Standing Panel. The initial appointments shall be for one, two, and three year terms, so that the members’ terms are staggered. Thereafter, a member shall be appointed for a three-year term. A member who has served on the Standing Panel for three years shall not be eligible for appointment to another term until three years after termination of his or her last appointment.

(3) The chairperson of the Standing Panel shall be the senior active judge.

(4) If a member of the Standing Panel is unable or unavailable to hear a particular matter, the Chief Judge shall appoint another judge to be a member of the Standing Panel for that matter. If a member of the Standing Panel is unable to complete the remainder of his or her term for any reason, e.g., retirement, incapacity, death, the Chief Judge shall appoint another judge to serve the remainder of the term.

Rule 5. Merits/Motions Panel or Standing Panel Procedure

(a) Representation. An attorney may be represented by counsel in any disciplinary proceeding. Counsel must enter an appearance promptly, and in any event prior to submitting any documents or at least 14 days before appearing at a hearing, whichever is earlier. Except as provided by Federal Circuit Rule 46(d), counsel must be a member of the bar of this court.




(b) Show Cause Order. Any panel may issue an order describing an attorney’s misconduct and ordering the attorney to show cause (1) why a specific discipline should not be imposed or (2) why a discipline to be determined later should not be imposed. Unless otherwise ordered, a response shall be due within 30 days. Any request for a hearing shall be included in a response.

(c) Uncontested Matter. If an attorney does not respond to a show cause order or does not object to the imposition of a specified discipline, the Clerk may then issue a final order imposing such discipline.

(d) Contested Matter. If an attorney contests the imposition of discipline or requests a hearing, further proceedings shall be conducted in accordance with Rule 8.

(e) Referral to State Bar Association or Other Disciplinary Entity. The Standing Panel or any merits or motions panel may in its discretion refer a pending disciplinary matter or a matter that has been concluded to an appropriate state bar association or other disciplinary entity.

(f) Final Order. At the conclusion of a proceeding, a panel shall issue a final order in the matter. The order may direct the attorney or the Clerk to send a copy of the order to all other courts and agencies before which an attorney is admitted. The Clerk may also be directed to notify the American Bar Association’s National Lawyer Regulatory Data Bank of the discipline.

(g) Review by the Panel or the Active Judges of the Court. An attorney may file a petition for rehearing by the panel or a combined petition for rehearing by the panel and suggestion for rehearing by the active judges of the court, or a majority of the active judges may order that a disciplinary matter be heard or reheard by them. Such a hearing or rehearing is not favored and ordinarily will not be ordered except when necessary to secure or maintain uniformity of the court’s decisions or when the proceeding involves a question of exceptional importance. Any such petition shall be filed within 30 days of the date of the panel’s final order. The procedures governing a petition for rehearing or a combined petition/suggestion will otherwise be in accordance with the provisions of Federal Rules of Appellate Procedure 35 and 40 and Federal Circuit Rules 35 and 40.




Rule 6. Conviction or Discipline Imposed by Another Court or an Agency

(a) Duty of Attorney to Notify. An attorney who is a member of the bar of this court shall notify the Clerk in writing within 14 days of the member’s (1) conviction of a serious crime, (2) disbarment or suspension by another court or by an agency, or (3) disbarment on consent or resignation from the bar of another court or an agency while an investigation into an allegation of misconduct is pending. Upon receipt of such information, the Clerk shall follow the procedures set forth in Rule 7.

(b) Notification from Another Court or Agency; Sua Sponte. Upon receipt of a copy of a judgment, order, or other document demonstrating that a member of the bar of this court has been disbarred or suspended from the practice of law by another court or an agency, or has resigned while an investigation into an allegation of misconduct is pending, the Clerk shall follow the procedures set forth in Rule 7.

Rule 7. Proceedings for Reciprocal Discipline or Conviction of Serious Crime

(a) Show Cause Order. On notification of an attorney’s disbarment or suspension by another court or agency, the Clerk shall issue a show cause order why the court should not impose the identical discipline. On notification of an attorney’s conviction of a serious crime or resignation from the bar of another court or agency while a misconduct investigation is pending, the Clerk shall issue a show cause order why disbarment should not be imposed.

(b) Response. Unless otherwise ordered, a response to a show cause order shall be due within 30 days. The response should be in an envelope marked “Direct to Chief Deputy Clerk” or e-mailed to [email protected] and should indicate the docket number of the matter. Any request for a hearing shall be included in a response. In any response, the attorney must (1) list all bars to which the attorney is admitted, including all bar numbers and other bar identification information and (2) list all cases pending before this court in which the attorney is involved.

(c) Uncontested Matter. If an attorney does not object to the imposition of reciprocal discipline or does not respond to the show cause order, the Clerk may then issue a final order imposing such reciprocal discipline.

(d) Contested Matter. If an attorney contests the imposition of reciprocal discipline, further proceedings shall be conducted in accordance with Rule 8.





(e) Final Order and Further Review. At the conclusion of a proceeding, the Standing Panel shall issue a final order in the matter. Any further review will be in accordance with Rule 5(g).

Rule 8. Contested Proceedings

(a) No Request for a Hearing. If an attorney does not request a hearing in response to a show cause order, then the panel shall prepare the record consisting of the show cause order, the response, and any other documents obtained by the panel. If the record includes documents in addition to the show cause order and the response, then an attorney shall be given notice that he or she may inspect and copy the record at his or her expense and may file a supplemental response. Information will be withheld from an attorney only in extraordinary circumstances, e.g., for national security or criminal investigation reasons. Any supplemental response shall be due within 14 days of the date of the notice concerning inspection and copying.

(b) Request for Hearing. On request by an attorney, except in cases of reciprocal discipline under Rule 2(b) or resignation under Rule 2(c) where the hearing shall be at the discretion of the panel, the panel shall schedule a hearing. A hearing scheduled by a merits or motions panel will be an oral hearing. If a merits or motions panel determines that an evidentiary hearing is necessary, that panel shall refer the matter to the Standing Panel. In matters that have not been referred by a merits or motions panel, the Standing Panel shall determine whether a hearing is oral or evidentiary. An attorney shall be given at least 30 days’ notice of the time, date, and place of a hearing.

(1) The record consists of the show cause order, the response, and any other documents obtained by the panel. If the record includes documents in addition to the show cause order and the response, then an attorney shall be given notice that he or she may inspect and copy the record at his or her expense. Information will be withheld from an attorney only in extraordinary circumstances, e.g., for national security or criminal investigation reasons.

(2) The Standing Panel may compel by subpoena the attendance of witnesses, including the attorney subject to the proceeding, and the production of documents.

(3) During an evidentiary hearing, an attorney shall be afforded an opportunity to cross-examine any witnesses called by the Standing Panel and to introduce evidence in defense or mitigation.




(4) A hearing shall be recorded on tape unless an attorney arranges to have a reporting service present at his or her own expense.

(c) Reciprocal Disciplinary Matter. Notification that an attorney has been disbarred or suspended by another court or agency shall establish that the conduct in fact occurred and that the discipline was appropriate unless an attorney shows that:

(1) the procedure was so lacking in notice or opportunity to be heard that it constituted a deprivation of due process; or

(2) there was such an infirmity of proof establishing the misconduct that it gave rise to the clear conviction that this court could not, consistent with its duty, accept as final the conclusion on the matter; or

(3) the imposition of the same discipline by this court would result in grave injustice; or

(4) the misconduct established is deemed by this court to warrant substantially different discipline.

(d) Conviction of a Serious Crime. Notification of a conviction of a serious crime shall be conclusive evidence of the commission of that crime for purposes of these disciplinary proceedings. If an attorney notifies the court that a conviction has been vacated or reversed, the Standing Panel shall promptly review the matter.

Rule 9. Reinstatement

(a) After Reciprocal Disbarment or Suspension. If disbarment by this court was based on a disbarment by another court or agency or a suspension was directed to run concurrently with a suspension ordered by another court or agency, then an attorney shall be eligible for reinstatement when the original discipline is lifted or expires. An attorney must submit an affidavit notifying this court of the action of the court that imposed the original discipline. The Clerk shall refer an attorney’s notification affidavit to the Standing Panel. Unless otherwise ordered, the Clerk shall issue an order reinstating the attorney within 14 days after reference to the Standing Panel.

(b) After Disbarment. An attorney who has been disbarred as a result of misconduct before this court may not apply for reinstatement until the expiration of five years from the effective date of the disbarment.




(c) After Suspension.

(1) An attorney who has been suspended with automatic reinstatement as a result of misconduct before this court may file an affidavit of compliance with the suspension order after the suspension period has expired. The Clerk shall issue an order reinstating the attorney within 14 days.

(2) An attorney who has been suspended conditioned on applying for reinstatement as a result of misconduct before this court may file an application after the suspension period expires.

(d) Application for Reinstatement. The Clerk shall refer an application for reinstatement to the Standing Panel. Any request for a hearing shall be included in an application.

(1) The Standing Panel may issue an order granting an application or, if no hearing is requested, may issue an order denying an application.

(2) If the Standing Panel is not satisfied initially that reinstatement is appropriate and a hearing is requested, the Standing Panel shall schedule a hearing. The Standing Panel shall decide whether a hearing shall be oral or evidentiary. At a hearing the applicant has the burden of showing that he or she has the moral qualifications, competency, and learning in the law required for readmission and that the resumption of practice will not be detrimental to the integrity and standing of the bar or to the administration of justice.

(3) At the conclusion of a proceeding, the Standing Panel shall issue a final order. Further review shall be in accordance with Rule 5(g).

(e) Successive Application. A successive application for reinstatement may not be filed until one year has elapsed after an adverse decision on an earlier application.

Rule 10. Access to Information

(a) Confidentiality During Proceedings. An ongoing disciplinary proceeding shall be confidential (1) unless the attorney subject to the proceeding requests that it be made a public record or (2) except to the extent that a panel may disclose the subject matter and status of a proceeding if the proceeding is based on a conviction of a serious crime, or an allegation that has become generally known to the public, or there is a need to notify another person or entity to protect the public, the legal profession, or the administration of justice.




(b) Confidentiality Upon Issuance of a Final Order. A final order issuing a private reprimand or imposing no discipline and the record of those proceedings shall be confidential unless the attorney subject to the proceeding requests that it be made a public record. If other discipline is imposed, a final order and the record shall be made a public record at the time of issuance of a final order. However, a panel may issue a permanent protective order prohibiting the disclosure of any part of the record to protect the interest of a complainant, a witness, a third party or nonparty, or the attorney.

Rule 11. Effective Date

These rules shall become effective February 1, 2016.

Federal Circuit Forms




http://www.cafc.uscourts.gov/rules-of-practice/forms/

Form 1

Notice of Appeal to the United States Court of Appeals for the Federal Circuit From a Judgment or Order of an United States District Court

Form 2

Notice of Appeal to the United States Court of Appeals for the Federal Circuit From a Judgment or Order of the United States Court of

Federal Claims

Form 3

Notice of Appeal to the United States Court of Appeals for the Federal Circuit From a Judgment or Order of the Court of International Trade

Form 4

Notice of Appeal to the United States Court of Appeals for the Federal Circuit From a Judgment or Order of the United States Court of

Appeals for Veterans Claims

Form 5

Petition for Review or Appeal of an Order or Decision of an Agency, Board, Commission, or Officer

Form 6 Motion and Declaration for Leave to Proceed in Forma Pauperis

Form 6A Supplemental in Forma Pauperis Form for Prisoners

Form 6B USERRA Notification Form

Form 7 Abrogated

Form 8 Entry of Appearance

Form 9 Certificate of Interest

Form 10 Statement Concerning Discrimination

Form 11 Informal Brief (MSPB or Arbitrator Cases)

http://www.cafc.uscourts.gov/rules-of-practice/forms/







http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/forms/form6a.pdf

http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/forms/form6b.pdf








Form 11A Informal Brief of ProSe Appellee/Respondent

Form 12

Informal Brief (District Court, Court of International Trade, and Court of Federal Claims Cases)

Form 13 Informal Brief (Court of Appeals for Veterans Claims Cases)

Form 14

Informal Brief (Board of Contract Appeals, Board of Patent Appeals and Interferences, Trademark Trial and Appeal Board, and

International Trade Commission Cases)

Form 15

Informal Brief (Secretary of Veterans Affairs Cases Under 38 U.S.C. § 502)

Form 16

Informal Brief (General Accounting Office Personnel Appeals Board, Office of Compliance, and Equal Employment Opportunity

Commission Cases)

Form 17 Sample Brief Cover (MSPB Cases)

Form 18 Sample Brief Cover (District Court Cases)

Form 19 Certificate of Compliance with Rule 32(a)

Form 20

Application for Fees and Other Expenses Under the Equal Access to Justice Act

Form 21 Application for Admission to the Bar

Form 22 Transcript Purchase Order

Form 23 Bill of Costs Instruction Sheet

Form 24 Bill of Costs Form

Form 25 Mediator Application

http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/forms/form11a.pdf


















Form 26 Docketing Statement

Form 27 Confidential Joint Request to Enter Appellate Mediation Program

Form 28 Confidential Mediation Survey for Parties

Form 29 Confidential Mediator Report

Form 30 Certificate of Service






Veterans’ Administration Law Practice · 2018-12-10 · Jerusha L. Hancock Berry Law Firm For the...

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