-CITE-
38 USC APPENDIX TITLE 38 - APPENDIX 01/03/05
-HEAD-
TITLE 38 - APPENDIX
-EXPCITE-
TITLE 38 - APPENDIX
-End-
-CITE-
38 USC APPENDIX RULES OF PRACTICE AND PROCEDURE
OF THE UNITED STATES COURT OF APPEALS FOR
VETERANS CLAIMS 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-MISC1-
(EFFECTIVE FEBRUARY 14, 2003, AS AMENDED TO JANUARY 3, 2005)
Rule
1. Scope of Rules.
2. Suspension of Rules.
3. How to Appeal.
4. Filing Appeal; Docketing; Board Decision.
5. Stay of Appellate Proceedings.
6. Protection of Privacy.
7. (Reserved).
8. Suspension of Secretarial Action Pending Disposition
of Appeal or Petition.
9. (Reserved).
10. Designation of the Record on Appeal.
11. Transmission of the Record on Appeal.
12-14. (Reserved).
15. Intervention.
16-20. (Reserved).
21. Extraordinary Relief.
22-23. (Reserved).
24. Waiver of Filing Fee.
25. Filing and Service.
26. Computation and Extension of Time.
27. Motions.
28. Briefs.
29. Brief of an Amicus Curiae.
30. Citation of Certain Authority.
31. Filing and Service of Briefs.
32. Form of Briefs, Appendices, and Other Papers.
33. Staff Conference.
34. Oral Argument.
35. Motions for Reconsideration, or for Decision by a
Panel or by the Full Court.
36. Entry of Judgment.
37. Contingency Planning.
38. Frivolous Filings.
39. Attorney Fees and Expenses.
40. Rules Advisory Committee.
41. Issuance of Mandate.
42. Voluntary Termination or Dismissal.
43. Substitution of Parties.
44. Judicial Conference.
45. Duties of Clerk.
46. Representation.
46.1. Self-Representation.
47. Expedited Proceedings.
48. Sealing of Cases.
49. Complaints against Judges.
APPENDIX OF FORMS
Form
1. Notice of Appeal.
2. Appellant's Brief.
3. Notice of Appearance.
4. Declaration of Financial Hardship.
-End-
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38 USC APPENDIX Rule 1 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 1. Scope of Rules
-STATUTE-
(a) Scope. These rules govern practice and procedure in this
Court (the Court).
(b) Effect on Court's Jurisdiction. These rules do not extend or
limit the jurisdiction of the Court as established by law.
-End-
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38 USC APPENDIX Rule 2 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 2. Suspension of Rules
-STATUTE-
On its own initiative or on a party's motion, the Court may - to
expedite its decision or for other good cause - suspend any
provision of these rules and order proceedings as it directs,
consistent with applicable law and precedent.
-End-
-CITE-
38 USC APPENDIX Rule 3 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 3. How to Appeal
-STATUTE-
(a) Filing. A person adversely affected by a Board of Veterans'
Appeals decision may appeal that decision to the Court only by
filing a written Notice of Appeal with the Clerk of the Court
(Clerk), including transmission by facsimile (fax), within the time
allowed by Rule 4(a). Failure of an appellant to take any step
under these rules other than the timely filing of a Notice of
Appeal does not affect the validity of the appeal, but may be
grounds for such action as the Court deems appropriate, including
dismissal of the appeal.
(b) Service. The appellant must serve a copy of the Notice of
Appeal on any party (other than the Secretary of Veterans Affairs
(Secretary)) to the proceedings before the Board of Veterans'
Appeals (Board). See Rule 25.
(c) Content. The Notice of Appeal need not conform to Rule 32 and
must -
(1) show the most recent name, address, and telephone number of
the person or persons taking the appeal, and the appropriate
Department of Veterans Affairs (VA) claims file number;
(2) reasonably identify the Board decision appealed from and be
able to be 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 other than one making a limited
appearance, be accompanied by a notice of appearance and its
attachments. See Rule 46(d)(2) and (6).
Form 1 in the Appendix of Forms is a suggested, but not required,
form for a Notice of Appeal. Correspondence will be liberally
construed in determining whether it is a Notice of Appeal.
(d) Joint or Consolidated Appeals. If more than one person is
entitled to appeal from a decision of the Board and their interests
make joinder practicable, they may file a joint Notice of Appeal or
may join in an appeal after filing separate timely Notices of
Appeal, and they may thereafter proceed on appeal as a single
appellant. Appeals may be consolidated by order of the Court on its
own initiative or on a party's motion.
(e) Payment of Fees. A Notice of Appeal must be accompanied by a
$50.00 nonrefundable filing fee, paid by check or money order
payable to "U.S. Court of Appeals for Veterans Claims." An
appellant who believes that the payment of the fee would be a
financial hardship may obtain a waiver of the fee by filing a
declaration of financial hardship in accordance with Rule 24. If a
fax Notice of Appeal is filed, the filing fee or declaration must
be received by the Court not later than 14 days after the fax was
sent.
(f) Limited Appearance. See Rule 46(d)(6).
(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, N.W., Suite 900, Washington, D.C. 20004-2950. The
Court's fax number is (202) 501-5848. The Court's web site is found
at www.vetapp.gov .
(h) Translations. The Court conducts its reviews and
deliberations in English. Any document transmitted to the Court
(including one in the record on appeal) in a language other than
English must be accompanied by an English translation that is
certified by the translator, pursuant to 28 U.S.C. Sec. 1746, as
true and accurate.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-End-
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38 USC APPENDIX Rule 4 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 4. Filing Appeal; Docketing; Board Decision
-STATUTE-
(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 known address of the
appellant and the appellant's authorized representative, if any. A
Notice of Appeal is deemed to be received -
(1) on the date of its legible postmark, affixed by the United
States Postal Service (not including a postage-metered date imprint
other than one affixed by the United States 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 United States Postal Service, or
if it is delivered or sent by means other than United States mail,
including fax.
But see Rule 25(b)(3) as to an 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 will be
described as the appellee by name and official title.
(3) Notice of Docketing. The Clerk will send a Notice of
Docketing to all parties advising them of the date when the Clerk
received the Notice of Appeal.
(c) Copy of Board Decision. Not later than 30 days after the date
of the Clerk's Notice of Docketing (see subsection (b)(3)), the
Secretary must file with the Clerk and serve on the appellant a
copy of the Board's decision, showing -
(1) the date on which notice of the decision was mailed, and
(2) the filing date of any motion for its reconsideration or
vacatur and the date and nature of any action on such a motion.
-End-
-CITE-
38 USC APPENDIX Rule 5 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 5. Stay of Appellate Proceedings
-STATUTE-
(a) Grounds.
(1) On its own initiative or on a party's motion, the Court may
stay its proceedings when -
(A) a motion has been filed for the Board to reconsider or
vacate its decision; or
(B) a pro bono representation program, operating under a grant
or contract made under the authority first provided in Public Law
No. 102-229, is conducting case evaluation; or
(C) it is otherwise in the interest of judicial efficiency, but
not for the purpose of negotiating a settlement or remand (see
paragraph (2) of this subsection) or of extending the time for
making any filing (see Rule 26(b)).
(2) A joint motion for a stay or stays of proceedings, not to
exceed 60 days in total in a particular case, may be granted to
allow the parties to negotiate a settlement or joint remand.
(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. When a stay expires, 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 may move for continuation of the stay except to the extent
that the duration sought is prohibited by subsection (a)(2), above.
Such motion must satisfy the requirements of Rule 27(a), but is not
governed by Rule 26(b).
(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.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-REFTEXT-
REFERENCES IN TEXT
Public Law No. 102-229, referred to in subsec. (a)(1)(B), is Pub.
L. 102-229, Dec. 12, 1991, 105 Stat. 1701, as amended, known as the
"Dire Emergency Supplemental Appropriations and Transfers for
Relief From the Effects of Natural Disasters, for Other Urgent
Needs, and for Incremental Cost of 'Operation Desert Shield/Desert
Storm' Act of 1992". For complete classification of this Act to the
Code, see Tables.
-End-
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38 USC APPENDIX Rule 6 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 6. Protection of Privacy
-STATUTE-
Because Court records are public records, parties will refrain
from putting the appellant's or petitioner's VA claims file number
on motions, briefs, and responses (but not the Notice of Appeal
(see Rule 3(c)(1))); use of the Court's docket number is sufficient
identification. In addition, parties should redact the appellant's
or petitioner's VA claims file number from documents submitted to
the Court in connection with motions, briefs, and responses.
-End-
-CITE-
38 USC APPENDIX Rule 7 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 7. (Reserved)
-STATUTE-
-End-
-CITE-
38 USC APPENDIX Rule 8 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 8. Suspension of Secretarial Action Pending Disposition of
Appeal or Petition
-STATUTE-
(a) Filing of Motion. After an appeal or petition has been filed,
an appellant or petitioner seeking a Court order to suspend action
by the Secretary or the Board pending proceedings in the Court must
file 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 printed electronic transmission, or hand delivery).
(b) Content. The motion must -
(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.
(c) Court Action. The motion normally will be considered by a
panel of three or more judges, but in exceptional cases the motion
may be acted on by a single judge pending consideration by a panel.
-End-
-CITE-
38 USC APPENDIX Rule 9 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 9. (Reserved)
-STATUTE-
-End-
-CITE-
38 USC APPENDIX Rule 10 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 10. Designation of the Record on Appeal
-STATUTE-
(a) Designation. Not later than 60 days after the date of the
Clerk's Notice of Docketing, the Secretary must file with the Clerk
and serve on the appellant (1) a designation of all material in the
record of proceedings before the Secretary and the Board that was
relied upon by the Board in ruling against the appellant on the
issues listed by the Board and (2) any other material from the
record that the Secretary considers relevant to the appeal. The
Secretary must serve on the appellant a copy of those materials and
a list of any record matter that cannot be duplicated. See also
Rule 3(h) (Translations).
(b) Counter Designation. Not later than 30 days after the
Secretary serves the designation of the record on appeal, the
appellant must file with the Clerk and serve on the Secretary
either -
(1) a counter designation of any additional material that was
before the Secretary and the Board and that the appellant considers
relevant to the appeal (see also Rule 3(h) (Translations)), or
(2) a statement that the appellant accepts the content of the
record as designated by the Secretary. See also Rule 11(c).
Failure of the appellant to do either will constitute the
appellant's acceptance of the record as designated by the
Secretary.
(c) Disputes. If any dispute arises as to the content of the
record on appeal, the Court, on its own initiative or on a party's
motion, will resolve the matter. A party's motion must describe the
good faith efforts that have been made to resolve the dispute.
(d) Postdated Material. The parties should take note that the
record on appeal generally may not include material postdating the
Board decision on appeal.
-End-
-CITE-
38 USC APPENDIX Rule 11 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 11. Transmission of the Record on Appeal
-STATUTE-
(a) Transmission. The Secretary retains the original claims file.
The Secretary must transmit to the Clerk two certified copies of
the record on appeal and also serve a copy on each party. The Court
may direct that additional copies be transmitted.
(1) Content. The record, preceded by a table of contents that
must subdivide service medical records by calendar year, must be
paginated and contain, in this order:
(A) A photocopy of the Board's decision(s) being appealed; and
(B) photocopies of all documents, assembled in chronological
order, that are agreed or ordered to be part of the record on
appeal.
(2) Time. Unless the Court orders otherwise, the Secretary must
transmit the record not later than 30 days after the appellant's
counter designation or statement was (A) due under Rule 10 or (B)
served on the Secretary, whichever date is later.
(3) Filing of record; notice to file brief. Upon receiving the
record on appeal, the Clerk will file it and notify all parties
when the appellant's brief is due. See Rule 31(a)(1).
(b) Supplementation.
(1) Motion. If, after the record on appeal has been transmitted
to the Clerk and before the filing of the appellant's brief (see
Rule 31(a)(1)), a party believes that any additional material that
was before the Secretary and the Board is relevant to an issue on
appeal, the party may file a motion to supplement the record. The
motion must identify the material sought to be added to the record
on appeal, include a copy of that material if it is in the
possession of that party, and describe the steps taken pursuant to
Rule 27(a)(4).
(2) Opposition. A party who believes that material sought to be
added by another party is beyond the scope of matters relevant to
the appeal may, not later than 14 days after service of the motion
to supplement, file an opposition to the motion. The opposition
must explain why the material opposed is not relevant to the
appeal.
(3) Supplemental record. Not later than 14 days after the motion
is granted in whole or in part, the Secretary must transmit to the
Clerk two certified copies of such supplemental record, assembled
in chronological order, paginated, and preceded by a table of
contents, and also must serve a copy on each party.
(4) Time limits for filing briefs. Unless the Court orders
otherwise, supplementation of the record does not extend the time
for filing any brief.
(c) Access of Parties or Representatives to Original Record.
(1) Material not subject to a protective order. After a Notice of
Appeal has been filed, the Secretary must permit a party or a
representative of a party to inspect and to copy, subject to
reasonable regulation by the Secretary, material in the record
before the Board.
(2) Confidential information. On its own initiative or on a
party's motion, the Court may take appropriate action to prevent
disclosure of confidential information. See also Rule 48.
(d) Contingency Planning. See Rule 37.
-SOURCE-
(As amended Aug. 27, 2004, eff. Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rules 12 through 14 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rules 12 through 14. (Reserved)
-STATUTE-
-End-
-CITE-
38 USC APPENDIX Rule 15 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 15. Intervention
-STATUTE-
(a) By Right. A person who participated in the proceedings before
the Board is entitled to intervene in a case 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)).
(b) With Permission. Any person who did not participate in the
proceedings before the Board and who seeks to intervene in a case
before the Court must file 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)). The motion must contain a concise statement of the
interest of the moving person or party and the grounds upon which
intervention is sought.
(c) 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.
-End-
-CITE-
38 USC APPENDIX Rules 16 through 20 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rules 16 through 20. (Reserved)
-STATUTE-
-End-
-CITE-
38 USC APPENDIX Rule 21 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 21. Extraordinary Relief
-STATUTE-
(a) Petition; Service, Content, and Filing. A party desiring
extraordinary relief must file 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 must -
(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 petition should be granted,
including why the petitioner has a clear and 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 as the
respondent by name and official title.
The requirements of Rules 3(e) and 24 (regarding fees) apply to
petitions. Upon receipt of the filing fee (unless waived pursuant
to Rule 24), the Clerk will docket the petition and submit it to
the Court.
(b) Action on the Petition. Unless the Court concludes that the
petition should be denied, it will order the respondent(s) to file
an answer to the petition within a fixed time and will send copies
of the order to all parties. Two or more respondents may answer
jointly. The Clerk will notify the parties of the time limits for
the filing of any briefs and of the date of any oral argument. The
proceeding will be given priority by the Court.
(c) Form and Length of Papers; Number of Copies; Translations.
Except by permission of the Court, the requirements in Rule 32
apply to petitions and answers thereto, except that a petition or
answer may not exceed 20 pages. An original and three copies must
be filed with the Clerk, but the Court may direct that additional
copies be furnished. The petition must be captioned: "[Name of
Petitioner], Petitioner, v. [Name and Title of Respondent],
Respondent." See also Rule 6 (Protection of Privacy). The
requirements of Rule 3(h) regarding translations apply to any non-
English-language document appended to a petition or an answer.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-End-
-CITE-
38 USC APPENDIX Rules 22 and 23 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rules 22 and 23. (Reserved)
-STATUTE-
-End-
-CITE-
38 USC APPENDIX Rule 24 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 24. Waiver of Filing Fee
-STATUTE-
Payment of the filing fee required by Rule 3(e) or Rule 21(a)
will be waived, due to financial hardship, in any case where the
appellant (or petitioner) submits a declaration of financial
hardship and that declaration is accepted for filing. That
declaration will be subject to the penalty for perjury pursuant to
28 U.S.C. Sec. 1746, and must 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 papers, either the fee must be paid or a new
declaration that addresses the deficiencies in the noncompliant
declaration must be submitted.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-End-
-CITE-
38 USC APPENDIX Rule 25 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 25. Filing and Service
-STATUTE-
(a) Filing. A paper required or permitted to be filed in the
Court must be filed with the Clerk. See Rule 3(g).
(1) Mail. Filing may be accomplished by mail addressed to the
Clerk.
(2) Fax. Any paper except a brief filed under Rule 28 or 29 may
be filed by fax sent to the Clerk if the paper -
(A) is preceded by a cover sheet showing the sender's name,
address, and telephone and fax numbers; the Court case number and
caption; and the number of pages being sent; and
(B) has numbered pages and is not more than ten 8(!1/2)"x11"
(!1) pages long (the page limit does not include the cover sheet
or the certificate of service but does include any supporting
documents, and the paper may not be split into multiple
transmissions to avoid this page limit).
The sender bears the risk of fax transmission. Court personnel will
not provide a confirmed copy. If a transmission is illegible in
whole or in part or is incomplete, the Court may, but need not,
direct the sender to provide a legible or complete copy by mail.
(3) Confirmation. Confirmation of the filing (but not of the
adequacy of the content) of any paper by any means may be obtained
by accessing the case docket on the Court's web site (see Rule
3(g)).
(b) Timeliness.
(1) Fax filing. A paper may be sent by fax at any time. A paper -
except a Notice of Appeal or an application for attorney fees and
expenses - received by the Clerk by fax on any nonbusiness day, or
on any business day before 7:00 a.m. Eastern Time on that day, is
considered received by the Court on the preceding business day. A
Notice of Appeal or an application for attorney fees and expenses
filed by fax is considered received by the Court on the day on
which it is received.
(2) Briefs. A brief is timely filed if on or before the last day
for filing it is -
(A) mailed to the Clerk via the United States Postal Service by
first-class mail or other class of mail that is at least as
expeditious, postage prepaid; or
(B) deposited with a private commercial carrier for delivery to
the Clerk not later than the third calendar day after the date of
deposit.
(3) Other papers. Except as provided in paragraph (1), all papers
must be received by the Clerk or deposited in the night box within
the time specified for filing. See Rule 45.
(4) Appellant confined in an institution. A paper filed by a self-
represented appellant who is an inmate confined in an institution
is timely filed if the paper 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.
(c) Service of Papers Required. A copy of any paper - except a
Notice of Appeal and a declaration of financial hardship - filed by
any party or amicus must, at or before the time of filing, be
served by a party or amicus on all other parties to the appeal and
on any amici. Service on a represented party or amicus must be made
on the representative.
(d) Manner of Service. Service may be personal; (!2) by mail, or
by private commercial carrier for delivery not later than 3
calendar days after delivery to the carrier. In addition, service
(but not filing, except as provided in subsection (a)(2)) of any
paper may be made by fax in a particular case if the proposed
recipient has agreed in writing to such service. Personal service
includes delivery of the copy to a responsible person at the office
of the representative or the office or home of a party without a
representative. 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, N.W., Washington, D.C. 20420-0002.
(e) Proof of Service.
(1) A paper presented for filing must contain either of the
following as proof of service:
(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 paper filed.
(2) When a brief is filed by mail or commercial-carrier delivery
in accordance with subsection (b)(2), the proof of service must
also state the date and manner by which the brief was sent to the
Clerk.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-FOOTNOTE-
(!1) So in original. Probably should be "8(!1/2) * 11 ".
(!2) So in original. Probably should be a comma.
-End-
-CITE-
38 USC APPENDIX Rule 26 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 26. Computation and Extension of Time
-STATUTE-
(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, or legal holiday; or,
if the act to be done is filing a paper in the Court, unless it is
a day when the Clerk's Office has been closed by direction of the
Chief Judge or when the weather or another condition makes the
Clerk's Office inaccessible, as declared by the Court or the Chief
Judge.
(2) Legal holidays. As used in this rule, "legal holiday" means
New Year's Day, Martin Luther King, Jr.'s Birthday, Washington'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, if circumstances permit, and placed on a
telephone recording.
(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 (by granting a motion for leave
to file out of time or otherwise), 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) (joint motion for stays to
negotiate settlement or remand). Extensions of time for a total of
45 days for any particular filing may be granted for good cause.
Any motion to extend the time set by these rules or by an order or
notice of the Court beyond a total of 45 days for a particular
filing will be granted only for extraordinary circumstances, which
do not include workload considerations. In no case will a motion be
granted to suspend the Rules (see Rule 2) in order to achieve an
extension of time.
(1) Additional requirements. Any motion to extend time based on
extraordinary circumstances (see above) must be filed not less than
14 days before the date sought to be extended. Any motion filed
later than 14 days before the date sought to be extended and not
acted upon by the date sought to be extended is denied.
(2) Content of motion. In addition to showing good cause for an
extension of time, the motion must 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 both for the same action and 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)(4).
(3) Opposition. Any opposition must 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; no
extension of this period will be granted for any reason.
(4) Effect of motion. A motion to extend time does not extend the
date on which a pleading or other paper is due to be filed with the
Court unless the Court grants that motion. See Rule 5(b).
(5) Noncompliance. See Rule 45(k).
(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 paper under these
rules on that party by another party and the paper is served by
mail, 5 days are added to the period for doing that act.
(2) Service overseas by Secretary. If a paper is served by the
Secretary by mail 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 (Notice of Appeal), 35 (post-decision motions), and 39(a)
(attorney fee applications).
(d) Combined Motions Prohibited. A motion to extend time may not
be combined with any other motion. The Clerk will return any motion
that violates this subsection.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-End-
-CITE-
38 USC APPENDIX Rule 27 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 27. Motions
-STATUTE-
(a) Content of Motions. Unless another form is required by these
rules, an application for relief must be made by filing a motion,
with proof of service (see Rule 25(e)) on all other parties. The
motion must -
(1) contain or be accompanied by any material required by any of
the rules governing such a motion;
(2) state with particularity the specific grounds on which it is
based;
(3) describe the relief sought; and,
(4) if the appellant is represented,
(A) describe the steps taken to contact the other party to
determine whether the motion is opposed; and
(B) indicate whether the motion is opposed and, if so, whether
the moving party has been advised that a response in opposition
will be filed.
A motion should not be accompanied by a proposed implementing
order. If a motion is supported by briefs, affidavits, or other
papers, they must be served and filed with the motion.
(b) Response or Opposition.
(1) Time to File. Unless otherwise prescribed in these rules
(see, e.g., Rule 26(b)(3)), any party may file a response or
opposition to a motion not later than 14 days after service of the
motion, but motions authorized by Rule 8 (suspension of Secretarial
action pending appeal or petition) may be acted upon 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 must be submitted by the 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, motions for procedural
orders may be acted on at any time, without awaiting a response,
and, by rule or order of the Court, motions for certain procedural
orders may be disposed of by the Clerk. Motions to extend time for
good cause (but not for extraordinary circumstances) may be acted
on by the Clerk if not opposed within 5 days after service on the
other party. See Rule 26(b)(3). 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.
(d) Form, Copies, and Length. Except by permission of the Court,
the form and copy requirements in Rule 32 for principal briefs
apply to motions and responses, except that a motion or response
may not exceed 20 pages. See also Rule 6 (Protection of Privacy)
and Rule 37 (Contingency Planning).
(e) Prohibited Nondispositive Motions. No more than one subject
may be addressed in any nondispositive motion unless otherwise
provided by these rules (see Rule 35(d)). The Clerk will return any
motion that violates this subsection. See also Rules 5(d) and
26(d).
(f) Effect of Motions. Filing a motion does not suspend
proceedings or otherwise alter the schedule for filing papers
unless the Court grants the motion. See Rules 5(b) and 26(b)(4).
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 28 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 28. Briefs
-STATUTE-
(a) Appellant's Brief. The appellant must file a brief which,
unless the appellant is self-represented and submits an informal
brief pursuant to subsection (i), must contain, in the following
order, the appropriate division headings and the following separate
divisions:
(1) A table of contents, with page references;
(2) a table of cases (alphabetically listed), statutes, and other
authorities cited, with references to the page of the brief where
they are cited, unless the case is expedited under Rule 47;
(3) a statement of the issues;
(4) 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 references to the record
on appeal;
(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 parts
of the record on appeal relied on; and
(6) a short conclusion stating the precise relief sought.
(b) Secretary's Brief.
(1) Content. The Secretary must file a brief, which must conform
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) Confession of error. If the Secretary wishes to confess error
as to any issue or issues raised by the appellant, but not as to
all the issues raised, and the relief that the Secretary deems
appropriate as to the confession of error is different from that
sought by the appellant, the Secretary must include a statement of
concession in the brief and identify the relief thereunder that the
Secretary considers appropriate.
(c) Reply Brief. The appellant may file a brief in reply to the
Secretary's brief.
(d) Other Briefs. Briefs may be filed by intervenors as directed
by the Court. No briefs other than those described in this rule may
be filed except with the Court's permission.
(e) Motions Prohibited. After the initial notice to file a brief
has been issued to the appellant (see Rule 11(a)(3)), a motion,
other than a joint motion for remand or termination, will not be
accepted 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.
(f) References to the Record. References in the briefs to the
record on appeal must be to the pages as transmitted by the
Secretary. Commonly understood abbreviations may be used.
(g) Reproduction of Materials. If determination of the issues
requires consideration of superseded statutes, rules, or
regulations, or unpublished authorities, relevant parts must be
reproduced in the brief or in an appendix. Documents in the record
on appeal may not be reproduced in or attached to the brief.
(h) 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.
(i) Brief of Self-represented Party. Only a self-represented
party may submit, without regard to the requirements of subsection
(a) and Rule 32, an informal brief on the form provided by the
Court.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 29 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 29. Brief of an Amicus Curiae
-STATUTE-
(a) Time. A brief of an amicus curiae must be filed within the
time allowed the party whose position the amicus curiae supports
unless the Court permits later filing, in which event the Court
will specify the time limit for an opposing party's response. An
amicus curiae will be permitted to participate in oral argument
only at the invitation of the Court.
(b) Form and Content. An amicus brief must comply with Rules
25(b)(2); 28(a)(1), (5) and (6); 28(f) and (g); 30; and 32; and
state, at the outset of the brief, which party the amicus curiae
supports and the interest of the amicus curiae. The brief should
avoid repeating the parties' briefs and should focus on the points
not made or not emphasized in them.
-SOURCE-
(As amended Aug. 27, 2004, eff. Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 30 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 30. Citation of Certain Authority
-STATUTE-
(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. Such an action
may be referred to only when the binding or preclusive effect of
that action (such as via the application of the law-of-the-case
doctrine), rather than its quality as precedent, is relevant. A
copy of the action referred to must be attached to the document
containing the reference.
(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 must promptly advise the Clerk, by letter, with a
copy to all other parties, setting forth the citation(s). If the
authority is not readily available in a Reporter system, the party
must provide the Clerk with a copy. The letter must refer to the
page of the brief or to a point argued orally to which each
citation pertains, and the letter must state without argument the
reasons for the supplemental citation(s). Any response must be made
promptly and must be similarly limited.
-End-
-CITE-
38 USC APPENDIX Rule 31 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 31. Filing and Service of Briefs
-STATUTE-
(a) Time Limits. Except in cases covered by Rule 47 (Expedited
Consideration) -
(1) the appellant must serve and file a brief not later than 60
days after the date of the Clerk's notice that the record has been
filed;
(2) the Secretary must 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 an appellant 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 the
Secretary, may take appropriate action, to include dismissal of the
appeal. If the Secretary fails to file a brief, the Court may take
appropriate action.
-End-
-CITE-
38 USC APPENDIX Rule 32 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 32. Form of Briefs, Appendices, and Other Papers
-STATUTE-
(a) Format. Briefs, appendices, and other papers must be printed
or typewritten, and may be produced by any copying process that
produces a clear black image on white opaque paper; onion skin
paper is not permitted except for papers sent by international
mail. Pages must be letter size (8 1/2 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 must be 13-point or larger. If a monospaced typeface is used, it
must not contain more than 10 1/2 characters per inch. Text must
be double spaced (except that motions and responses under Rule
27(c) may be single spaced), but quotations more than two lines
long and footnotes may be single spaced. 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) Covers. Covers are not required on briefs or appendices but,
if used, they should be blue for the appellant, red for the
Secretary, green for an amicus curiae or an intervenor, gray for
any reply brief, and white for an appendix if separate from the
brief. See Form 2 (Sample Brief Cover).
(d) Binding. All papers, other than the record on appeal, must be
attached only at the upper left-hand corner. The record on appeal
must be bound at the top.
(e) Caption. A paper addressed to the Court must 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 paper.
(f) Page Numbers. Pages must 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, tables of citations, certificate of service, and any
appendix containing statutes, rules, regulations, and unpublished
authorities.
(g) Length and Copies.
(1) Normal Course. Except by permission of the Court or as
limited by Rule 47, principal briefs may not exceed 30 pages and
reply briefs may not exceed 15 pages, not counting the table of
contents; the table of citations; any appendix containing
superseded statutes, rules, and regulations, and unpublished
authorities; and the certificate of service. An original and three
copies of all papers must be filed with the Clerk, but the Court
may require that additional copies be furnished. But see Rule 25
(fax filings).
(2) Contingency Planning. See Rule 37 for responsibilities of
parties regarding maintaining copies of papers submitted to the
Court for use in the event that the Court cannot access its regular
files.
(h) Identification. The signature, printed name, address, and
telephone number of the representative of record (see Rule
46(d)(1)) or of a self-represented party must appear on a brief or
other document submitted for filing to the Clerk.
(i) Noncompliance. See Rule 45(k).
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 33 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 33. Staff Conference
-STATUTE-
(a) Participation. The Court may direct 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 following such a conference, the Court will enter an
appropriate order to control future proceedings. This rule does not
prevent the parties from discussing settlement or agreeing to
dismiss the appeal before argument or submission of the case. See
also Rule 34(f).
(b) Nondisclosure to Judges. Statements made during a conference
may not be disclosed to a judge of the Court as having been made
during a conference unless the parties agree in writing to such
disclosure. This subsection does not apply to a conference that has
failed to resolve a dispute about the content of the record on
appeal.
-End-
-CITE-
38 USC APPENDIX Rule 34 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 34. Oral Argument
-STATUTE-
(a) In General. Oral argument will be allowed only when ordered
by the Court and will be held where and when the Court orders. Oral
argument normally is not granted on nondispositive matters. The
Court may order oral argument on its own initiative or on a party's
motion filed not later than 14 days after the reply brief is due or
filed, whichever is sooner. A motion for oral argument may not be
included in any brief. A party may request that oral argument be
held at a particular law school in the United States.
(b) Notice of Argument; Postponement; Additional Time. The Clerk
will advise all parties and issue a public order as to when and
where oral argument is to be heard, the time to be allowed each
party, and the judge or judges assigned to the case. Where
possible, the Clerk will schedule oral argument so as to minimize
inconvenience to the parties. A request for postponement of the
argument or for the allowance of additional time must be made by
motion filed reasonably in advance of the date fixed for argument
and must contain a showing of good cause.
(c) Order and Content of Argument. The appellant will generally
open and conclude the argument. A party will not be permitted to
read at length from briefs, records, or authorities. In argument on
motions, the movant will generally open and conclude the argument.
(d) Nonappearance of Parties. If any party fails to appear to
present argument, the Court will hear argument by any other party
who is present.
(e) Physical Exhibits. A party who wishes to use physical
exhibits other than documents must 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 must 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.
-SOURCE-
(As amended Aug. 27, 2004, eff. Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 35 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 35. Motions for Reconsideration, or for Decision by a Panel or
by the Full Court
-STATUTE-
(a) Motion for Reconsideration.
(1) Permitted. A party in a case dismissed by the Clerk pursuant
to Rule 45(i) 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 for reconsideration by the single judge. A party in a case
decided by a panel may move for reconsideration by the panel. 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 (!1)
(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 denial of a motion under subsection (b) or (c) for a
panel decision or a full-Court decision, as the case may be.
(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 Decision. Subject to the requirements
of subsections (d), (e), and (f), a party may move for a decision
by the full Court -
(1) in the first instance, or
(2) after a panel has decided a case, or
(3) after a panel has denied a motion for a panel decision or for
reconsideration.
A motion for a decision by the full Court in a case decided only by
a single judge is not permitted. Motions for a full-Court decision
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.
(d) Time for Motion.
(1) Clerk or single-judge action. A motion for Clerk
reconsideration, a motion for single-judge reconsideration, a
motion for a panel decision, or a motion for both single-judge
reconsideration and a panel decision, must 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 Clerk's
or single-judge's dispositive action. The filing of a motion for
single-judge reconsideration does not toll the running of the time
period set forth in the preceding sentence; thus, any motion for a
panel decision that is not filed within that same time period will
be untimely.
(2) Panel action. A motion for panel reconsideration, a motion
for a full-Court decision, or a motion for both panel
reconsideration and a full-Court decision, must 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 initial
panel decision or order denying a motion for a panel decision. The
filing of a motion for panel reconsideration does not toll the
running of the time period set forth in the preceding sentence;
thus, any motion for a full-Court decision that is not filed within
that same time period will be untimely.
(3) Full-Court consideration in the first instance. A motion for
consideration of a case by the full Court in the first instance
must be filed not later than 30 days after the date on which (A)
the appellant's brief was served in an appeal or (B) the
petitioner's petition was filed in a petition for extraordinary
relief.
(4) Full-Court reconsideration. A motion for reconsideration of a
case decided by the full Court must 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 initial full-Court
decision.
(e) Content of Motion. A motion under this rule must contain a
supporting argument. In addition -
(1) a motion for a panel decision or a motion for single-judge,
panel, or full-Court reconsideration must state the points of law
or fact that the party believes the Court has overlooked or
misunderstood, and
(2) a motion for a full-Court decision must 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; Length; Copies. 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 must otherwise
comply with Rule 27, but it need not indicate whether it is
opposed. A motion for a full-Court decision, and any response, must
be filed in an original and 7 copies.
(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 a panel or full-Court decision or a motion for
reconsideration under section (a)(1) 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 a panel decision will be referred to a panel. A motion for a
full-Court decision 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 one
half of the judges in regular active service who are not
disqualified.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-FOOTNOTE-
(!1) So in original. Probably should be followed by a dash.
-End-
-CITE-
38 USC APPENDIX Rule 36 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 36. Entry of Judgment
-STATUTE-
Unless the Court orders otherwise, the judgment will be entered
on the docket after the later of (1) the date on which the time
allowed in Rule 35(d)(1), (2), or (4) has expired, or (2) the date
on which the Court has denied a motion for reconsideration or has
denied a motion for full-Court decision after a panel decision, if
no other timely motion under Rule 35 is pending. Entry of the
judgment begins the 60-day time period for any appeal to the United
States Court of Appeals for the Federal Circuit.
-SOURCE-
(As amended Aug. 27, 2004, eff. Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 37 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 37. Contingency Planning
-STATUTE-
(a) General. In the event that the Court's regular files become
inaccessible due to an unforseen contingency, the following
responsibilities are imposed on parties before the Court in order
to be able to provide the Court with replacement copies of
essential papers filed in cases before the Court.
(1) Represented Parties. When the appellant or petitioner is
represented, the representative must retain copies of the record on
appeal and all papers filed with the Court by the parties or any
intervenor or amicus curiae and of all actions issued by the Court.
(2) Self-represented Parties. When the appellant or petitioner is
self-represented, the Secretary must retain copies of the record on
appeal and all papers filed with the Court by the parties or any
intervenor or amicus curiae and of all actions issued by the Court.
However, if retention of a copy of the record on appeal is not
feasible, the Secretary must maintain the capability to reconstruct
the record on appeal from the claims file and to certify the
accuracy of the reconstructed record on appeal.
(b) Application of Rule; Duration of Retention. This Rule is
applicable to all cases in which all proceedings have not been
concluded as of the date of the adoption of this Rule, and to all
cases docketed thereafter. Documents described in subsection (a)
will be retained for not less than one year after all proceedings,
including those concerning attorney fees and expenses (see Rule
39), are concluded.
-SOURCE-
(Added Aug. 27, 2004, eff. Sept. 13, 2004.)
-End-
-CITE-
38 USC APPENDIX Rule 38 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 38. Frivolous Filings
-STATUTE-
If the Court determines that an appeal, petition, motion, or
other filing is frivolous, it may enter such order as it deems
appropriate.
-End-
-CITE-
38 USC APPENDIX Rule 39 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 39. Attorney Fees and Expenses
-STATUTE-
(a) Application. An application pursuant to 28 U.S.C. Sec.
2412(d) for award of attorney fees and/or other expenses in a case
must be filed with the Clerk not later than 30 days after the
Court's judgment becomes final pursuant to 38 U.S.C. Sec. 7291(a)
(which occurs 60 days after entry of judgment under Rule 36) or,
consistent with Rule 41(b), upon the issuance of an order on
consent dismissing, terminating, or remanding a case. The time
(which is a jurisdictional requirement set by the statute) for
filing an application under this subsection may not be extended.
See Rule 25 (filing and service). The application must include the
fees and expenses claimed for the submission of that application.
(b) Response. Not later than 30 days after the date on which an
application described in subsection (a) or a supplemental
application described in subsection (c) or (d) is filed, the
Secretary must file and serve a response to that application or
supplemental application. The response must state which elements of
the application or supplemental application are not contested and
explain the Secretary's position on those elements that are
contested.
(c) Reply. Not later than 30 days after service of any response
by the Secretary, the applicant may file and serve a reply
addressing those matters contested by the Secretary. Any reply
involving a supplemental application described in subsection (d)
must include a supplemental application that includes the fees and
expenses claimed for the submission of that reply.
(d) Supplemental Application.
(1) General. Except as provided in paragraphs (2) or (3) of this
subsection and in subsection (c), a party whose application
described in subsection (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 subsection
(a) application.
(2) Appeals to the Federal Circuit. When an action on an
application appealed to the United States 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.
(3) Appeals to the 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.
(4) Preparation costs. A supplemental application must include
the fees and expenses claimed for the submission of that
supplemental application.
(5) Timing of supplemental responses and replies. When a
supplemental application is filed under paragraph (2) or (3) of
this subsection, the Court will issue an order specifying the
timing of responses and replies, in order to ensure that all
previous applications have been resolved before requiring a
response to the next application.
(e) Appendices. The parties must attach as appendices to any
pleading filed under this rule those relevant papers that are not
already before the Court.
(f) Form, Copies, and Length. All papers filed under this rule
must conform to the requirements set forth in Rule 32, except that
an application or response may not exceed 20 pages, not counting
any appendix containing pages necessary to meet the 28 U.S.C. Sec.
2412(d) application-content requirements. See also Rule 37
(Contingency Planning).
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
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38 USC APPENDIX Rule 40 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 40. Rules Advisory Committee
-STATUTE-
(a) General. The Court will have a Rules Advisory Committee
(Committee) for the study of, and advice to the Court on possible
changes to, rules of the Court, either sua sponte or at the request
of the Court.
(b) Appointment. The Chief Judge, with the concurrence of the
Court, 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 (Department). The membership of the
Committee as of the date of the adoption of this rule will continue
under this rule.
(c) Terms.
(1) Length of terms. The term of a member continued under
subsection (b) will expire on June 30, 2003, unless, on that date,
the member (A) has served on the Committee for less than three
years or (B) is serving as the Chair. Except as provided in
paragraph (3) of this subsection, each member appointed thereafter
and each new Chair appointed 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
the Department will end automatically at such time as the person is
no longer so employed.
(2) Reappointment. Except as provided in the next two sentences,
a member may serve three terms consecutively; a break in service
permits a new series of three consecutive terms. The person serving
as the Chair on January 1, 2003, will be permitted to so serve to
the end of his or her current term as the Chair and, upon the end
of that term, may be appointed as the Chair, or as a member, of the
Committee for one additional consecutive term only. 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. If a member or the Chair holds over
after his or her term expires, the holdover period shall be part of
the successor's term.
(3) Resignation or removal. A member or the Chair of the
Committee may resign from the Committee, or the Chief Judge, with
the concurrence of the Court, may, due to the disability of the
member or the Chair or other good cause, revoke an appointment at
any time; the successor appointed will serve the unexpired term of
his or her predecessor. Time served as a successor to a member or
the Chair whose position became available due to death,
resignation, or revocation of appointment will not be considered a
"term" for the purposes of paragraph (2) of this subsection.
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38 USC APPENDIX Rule 41 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 41. Issuance of Mandate
-STATUTE-
(a) Date of Issuance. The mandate of the Court (which is executed
by the Clerk as a ministerial action and is merely evidence that a
judgment has become final) will issue no earlier than 60 days after
the date of entry of the judgment pursuant to Rule 36 unless the
time is shortened or extended by order. If a timely Notice of
Appeal to the United States Court of Appeals for the Federal
Circuit is filed with the Clerk, the mandate of the Court will
issue in accordance with 38 U.S.C. Sec. 7291(a).
(b) Mandate in Consent Dispositions. An order on consent (1)
dismissing, terminating, or remanding a case or (2) granting or
dismissing an uncontested application for attorney fees and
expenses will also constitute the final judgment and mandate of the
Court.
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38 USC APPENDIX Rule 42 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 42. Voluntary Termination or Dismissal
-STATUTE-
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, an appeal,
petition, or application for attorney fees and expenses may be
dismissed by the Clerk on terms requested by the appellant or
petitioner, agreed upon by the parties, or previously fixed by the
Court.
-End-
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38 USC APPENDIX Rule 43 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 43. Substitution of Parties
-STATUTE-
(a) Death of a Party.
(1) Before Notice of Appeal. If a party entitled to appeal dies
before filing a Notice of Appeal, the Notice of Appeal may be filed
within the time limit in Rule 4 by any person permitted by law to
do so.
(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 permitted by law, be
substituted as a party on motion by such person. Any party may
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.
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38 USC APPENDIX Rule 44 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 44. Judicial Conference
-STATUTE-
(a) Purpose. Pursuant to 38 U.S.C. Sec. 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
assure 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.
(d) Registration Fee. Each member of the conference other than
judges of the Court must 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. Sec. 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.
-End-
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38 USC APPENDIX Rule 45 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 45. Duties of Clerk
-STATUTE-
(a) General Provisions. The Clerk must 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
Court is always open for the purpose of receiving a facsimile
transmission of any paper, except a brief (see Rule 25(a)(2)). The
office of the Clerk, with the Clerk or a deputy clerk in
attendance, 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)) 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.
(b) The Docket; Calendar; Other Records Required. The Clerk will -
(1) maintain a docket containing a record of all papers filed
with the Clerk, and all process, orders, and judgments;
(2) maintain an index of cases contained in the docket;
(3) prepare, under the direction of the Court, a calendar of
cases submitted or awaiting 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, order, entry of the judgment, or
issuance of the mandate, the Clerk will send a copy to each party
to the proceeding and note in the docket the issuance or entry
date.
(d) Custody of Records and Papers. The Clerk will have custody of
the records and papers of the Court. The Clerk will not permit any
original record or paper to be taken from the Clerk's custody
except as authorized by the United States Supreme Court, the United
States Court of Appeals for the Federal Circuit, or the Court.
Original papers transmitted as the record on appeal will be
returned upon disposition of the case. The Clerk will preserve
copies of briefs and appendices and other printed papers filed.
(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 and certificates and
process issued from the Court.
(f) Schedule of Fees. The Clerk will maintain in the Public
Office a schedule of fees approved by the Court.
(g) Motions. Unless a case has been assigned to a judge or
judges, the Clerk may act on motions, if joint, consented to, or
unopposed, that seek to -
(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);
(5) consolidate appeals;
(6) withdraw or substitute an appearance; or
(7) correct a brief or other paper.
(h) Applications for Attorney Fees and Expenses. The Clerk may
grant an application for attorney fees and expenses filed pursuant
to 28 U.S.C. Sec. 2412(d) when the Secretary does not contest the
application, and may grant joint motions to dismiss such
applications.
(i) 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).
(j) 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.
(k) Nonconforming Papers. Except where return of a paper is
required by these rules for a specific reason (see Rules 5(d), 24,
26(d), 27(e) and 28(e)), if the Court receives any paper that does
not conform to these rules, the Clerk will receive, but not file,
the paper; however, if it is a jurisdiction-conferring paper, the
paper 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 Board of Judges, stay proceedings for a reasonable time in
order to permit submission of a conforming paper. Failure to submit
such conforming paper in a timely manner may result in the
dismissal of the matter.
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003; Aug. 27, 2004, eff.
Sept. 13, 2004.)
-MISC1-
FEE SCHEDULE
It is ORDERED, pursuant to Rule 45(f), that the following revised
schedule of fees approved by the Court is announced. The fees
marked * apply to services on behalf of the United States, if the
information requested is available through electronic access.
Changes are marked by # :
For filing Notice of Appeal or Petition for $50.00
Extraordinary Relief in this Court, but not when the
Court orders case redocketing for its administrative
convenience
For filing Notice of Appeal to the U.S. Court of 255.00#
Appeals for the Federal Circuit (fee set by that
court, payable to this Court)
For reproducing a paper copy from original documents .50*
or from microfiche or microfilm reproductions of
original records, per copy page
For each microfiche sheet of film or microfilm jacket 3.00
copy of any Court record, when available
For reproducing audio or video tape recording, 15.00
including cost of materials
For searching Court records, per name or item searched 15.00*
For retrieval of a Court record from a Federal Records 25.00
Center or National Archives
For certifying a document or paper, whether 5.00
certification is made directly on the document or by
separate instrument
For application for admission to practice before the 30.00
Court
For a certificate of admission to practice, suitable
for framing: (fee set by, and payable to, printer)
attorney 28.00#
nonattorney 23.00#
For a Certificate of Good Standing 5.00
--------------------------------------------------------------------
DATED: November 12, 2003
FOR THE COURT:
NORMAN Y. HERRING
Clerk of the Court
-End-
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38 USC APPENDIX Rule 46 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 46. Representation
-STATUTE-
(a) Admission of Attorneys to Bar of Court.
(1) 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. Sec. 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.
(2) 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 (1) of this subsection. A
current court certificate is one executed not earlier than 3 months
before the date of the filing of the application.
(b) Admission of Nonattorney Practitioners to Practice. A
nonattorney of good moral character and repute who is -
(1) under the direct supervision (including presence at any oral
argument) of an attorney admitted to the bar of the Court, or
(2) 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
-
(A) understanding of the procedures and jurisdiction of the
Court and of the nature, scope, and standards of its judicial
review; and
(B) proficiency to represent appellants before the Court may be
admitted to practice before the Court 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 competence in veterans law and the
administrative claims process does not in and of itself connote
competence in appellate practice and procedure.
(c) Appearance in a Particular Case. On motion and a showing of
good cause, the Court may permit any attorney or nonattorney
practitioner not admitted to practice before the Court, or any
other person in exceptional circumstances, to appear on behalf of a
party or amicus for the purposes of a particular case. Whenever a
person is admitted to practice 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
preparation for, or in connection with any proceeding in that case.
(d) Representation Requirements.
(1) Practitioner defined. A person who has been admitted under
subsection (a) or (b), or has been permitted to appear under
subsection (c) is referred to in this subsection as a practitioner.
(2) Appearance. No practitioner may appear as a representative of
a party or amicus in any proceedings in a case without first filing
-
(A) a written notice of appearance in the detail set out in
Form 3 in the Appendix of Forms, served in compliance with Rule
25; and
(B) unless the representation is without charge to that party,
a copy of the fee agreement if the practitioner is representing
an appellant or petitioner or intervenor. A copy of the agreement
must be served on the Secretary.
An appearance may not be made in the name of a law firm or other
organization.
(3) Filings by nonattorney practitioner. Each notice of
appearance and pleading filed by a nonattorney practitioner must
include the name, address, and signature of the responsible
supervising attorney under subsection (b)(1) or the identification
of the employing organization under subsection (b)(2).
(4) Withdrawal. If another practitioner has previously entered an
appearance on behalf of a party, a practitioner may withdraw from a
case by filing a notice stating that the party has consented to the
withdrawal. Otherwise, a practitioner may not withdraw from a case
without obtaining the Court's permission by filing a motion to
withdraw that -
(A) lists the client's current address and telephone number;
and
(B) avers to the Court that -
(i) the client has been notified of the motion to withdraw;
and
(ii) copies of all papers filed by the parties, all notices
and orders accumulated by the practitioner, and all files
belonging to the client have been sent to the client or to a
named substitute practitioner.
The practitioner's authority and duty continue until he or she is
relieved by the Court, subject to conditions that the Court
considers appropriate.
(5) Change of address. Each practitioner must 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. Such a
notice by a practitioner must list, by docket number and title,
each pending case in which that practitioner is a representative in
the Court. Absent such notice, the mailing of documents to the
address most recently provided by that person will be fully
effective.
(6) Limited appearance. Paragraphs (2) through (4) of this
subsection do not apply when a practitioner files a Notice of
Appeal on behalf of an appellant and specifies that the appearance
is limited to that filing. The practitioner must include his or her
name, address, and telephone number on such a Notice of Appeal.
(7) VA practitioners. Paragraphs (2)(B), (4), (5), and (6) of
this subsection do not apply to practitioners representing the
Secretary.
(e) (Rescinded)
(f) Appearance by Law Students.
(1) General. An eligible law student, with the written consent of
the appellant and the attorney of record, who must be a member of
the bar of the Court, may appear in the Court as provided in this
subsection.
(2) 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 must 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 must assume personal
professional responsibility for the law student's work and for
supervising the quality of his or her work. The attorney must be
familiar with the case and prepared to supplement or correct any
written or oral statement made by the student.
(3) Conditions of appearance. In order to make an appearance
pursuant to this rule, the student must -
(A) be duly enrolled in a law school approved by the American
Bar Association;
(B) have completed legal studies amounting to at least four
semesters, or the equivalent if studies are scheduled on other
than a semester basis;
(C) 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 must be filed with the Clerk
and may be withdrawn at any time by the dean, upon written notice
to the Clerk, or by the Court, without notice or hearing and
without any showing of cause);
(D) be introduced by the attorney of record in the case;
(E) 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. Sec. 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;
(F) 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 Rules of
Admission and Practice).
-End-
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38 USC APPENDIX Rule 46.1 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 46.1. Self-Representation
-STATUTE-
Any appellant, petitioner, or intervenor may be self represented
before the Court. A self-represented party must 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)(3) (filing by inmate), 28(i) (informal brief), 32(h)
(identification in brief), 33(a) (staff conference), and 45(j)
(rules construed liberally for self-represented appellants).
-SOURCE-
(As amended May 16, 2003, eff. July 1, 2003.)
-End-
-CITE-
38 USC APPENDIX Rule 47 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 47. Expedited Proceedings
-STATUTE-
(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. Consideration of good
cause under clauses (2) and (3) of this subsection may take into
account the overall caseload of a judge or judges.
(b) Filing and Service of Papers. Expedited proceedings will be
scheduled as directed by the Court. Unless otherwise ordered, the
appellant's principal brief must be served and filed not later than
25 days after the date of the Clerk's notice that the record on
appeal has been filed; the Secretary's brief must be served and
filed not later than 15 days after service of the appellant's
brief; and any reply brief must be served and filed not later than
10 days after service of the Secretary's brief.
(c) Form and Length of Briefs. Briefs filed under this rule must
comply with Rules 28 and 32, except that principal briefs must be
limited to 15 pages, reply briefs must be limited to 7 pages, and a
table of authorities is not required.
(d) Supplementation of the Transmitted Record. If expedited
proceedings are ordered, any motion for supplementation of the
record on appeal must be served and filed before the date on which
the appellant's brief is due. See also Rule 11(b). Unless the Court
orders otherwise, such supplementation does not extend the time for
filing any brief.
-End-
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38 USC APPENDIX Rule 48 01/03/05
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TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 48. Sealing of Cases
-STATUTE-
(a) Cases Involving Protected Records. If, during the time
periods set out in Rule 10 or at any other time during a proceeding
before the Court, the parties identify records protected by 38
U.S.C. Sec. 7332 and at least one of the parties believes that
disclosure of such records is required in such proceeding and,
further, the parties cannot agree with respect to the disclosure of
such records, the party requesting disclosure must make immediate
application therefor, pursuant to 38 U.S.C. Sec. 7332(b)(2)(D),
caption the case "In re: Sealed Case No. [insert Court case
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 must include a statement specifying
those steps taken by the parties to reach agreement before
application was made to the Court. Upon receipt of such
application, unless otherwise directed by the Court, the Clerk will
enter the case as "withdrawn" on the docket, assign a new case
number and recaption the case using an encoded identifier, and seal
the record on appeal and the file of the Court. Thereafter, any
party or representative of a party, unless otherwise ordered by the
Court, must make reference in any subsequent filing only to the new
case 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. Sec.
7332.
-End-
-CITE-
38 USC APPENDIX Rule 49 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
-HEAD-
Rule 49. Complaints Against Judges
-STATUTE-
Rules for the processing of complaints of judicial misconduct or
disability have been adopted by the Court pursuant to 28 U.S.C.
Sec. 372(c) (superceded (!1) by Secs. 351.64 (!2)). Copies are
available from the Clerk on request.
-REFTEXT-
REFERENCES IN TEXT
28 U.S.C. Sec. 372(c), referred to in text, was struck out by
Pub. L. 107-273, div. C, title I, Sec. 11043(a)(1)(B), Nov. 2,
2002, 116 Stat. 1855.
-FOOTNOTE-
(!1) So in original. Probably should be "superseded".
(!2) So in original. Probably should be "Secs. 351-64".
-End-
-CITE-
38 USC APPENDIX APPENDIX OF FORMS 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
APPENDIX OF FORMS
-HEAD-
APPENDIX OF FORMS
-MISC1-
Form 1
Form 2
Form 3
Form 4
-End-
-CITE-
38 USC APPENDIX APPENDIX OF RULES OF ADMISSION
AND PRACTICE 01/03/05
-EXPCITE-
TITLE 38 - APPENDIX
RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF
APPEALS FOR VETERANS CLAIMS
APPENDIX OF FORMS
APPENDIX OF RULES OF ADMISSION AND PRACTICE
-HEAD-
APPENDIX OF RULES OF ADMISSION AND PRACTICE
-MISC1-
The Rules of Admission and Practice were generally revised by
the Court on December 14, 2001, effective December 26, 2001.
Since that date, changes to the Rules of Admission and Practice
have been neither tracked nor published in the Code.
-End-