Procedural Requirements for Staff Conferences
The purpose of the program is to facilitate the narrowing or full resolution of the issues to be presented by the appellant on appeal. In furtherance thereof, the Court's Central Legal Staff attorneys have been provided additional mediation training and certification. In cases identified for Staff Conference, the Court will schedule a conference to occur approximately 30 days prior to the date the appellant's principal brief is due.
See Sample Rule 33 Staff Conference Order. The conference may be rescheduled by the Court only upon a showing of good cause. The Staff Conference procedures are as follows:
(1) No later than 14 days prior to the Staff Conference, the appellant shall submit to the Secretary and to the Court's Central Legal Staff, a summary of the issues that he or she intends to raise in the appeal, including citations to the relevant authorities and pertinent documents.
Appellants' counsel are strongly encouraged to avoid boilerplate. In keeping with the purpose of this Rule, the memorandum should narrow the issues before briefing and succinctly identify errors while citing to relevant evidence and legal authority.
(2) The summary of issues shall be limited to 10 pages, subject to the requirements of Rule 32(b); the 10-page limit does not include submission of pertinent material in the record before the agency;
(3) Submissions shall be emailed to CLS at CLS-Calendar@uscourts.cavc.gov. Fax submissions shall be sent to the CLS fax
number at (202) 585-3951.
(4) The appellant shall also submit for filing with the Court and serve on the Secretary a certificate of service that includes the date of the appellant's submission to the Secretary and to CLS, the specific manner of service (fax or email), and the names and addresses of the persons served.
The representatives of the parties must consult with their respective clients in good faith to determine whether joint resolution of the appeal or settlement is possible. At the time of the staff conference, the representatives must either possess the authority to enter into a joint resolution of the appeal or settlement to the extent authorized by the client or be in immediate contact with a person having such authority.
After the Conference. After the pre-briefing staff conference is held and in the course of preparing the brief, counsel for Appellant may develop alternative or additional arguments for appeal. Counsel is strongly encouraged to discuss these additional arguments with the Secretary in order to determine whether joint resolution is possible and to determine if briefing can be avoided.
Nondisclosure to Judges.
Statements made during a conference, including written memoranda submitted for the conference, may not be disclosed to a Judge of the Court unless the parties agree in writing to such disclosure. This subsection does not apply to disciplinary actions or judicial review of a dispute about the content of the record before the agency or record of proceedings or subsequent Equal Access to Justice Act (EAJA) applications, pursuant to 28 U.S.C. § 2412(d).
Time Not Tolled.
Absent an order of the Court, the time period for taking any action under the Court's Rules is not tolled for the time required to prepare for the staff conference.
If any party, counsel, or representative fails to comply with the requirements as set forth in the Staff Conference order, the Court may take appropriate action. See
38 U.S.C. § 7265(a)(3) (Court may punish disobedience or resistance to, inter alia, a lawful order, rule, or command by fine or imprisonment); see also Chambers v. NASCO, Inc.
, 501 U.S. 32, 43-44 (1991) (holding that Federal courts have implied powers "'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases'" to include sanctions); see, e.g., Ruiz-Rosa v. Rullan
, 485 F.3d 150 (1st Cir. 2007) (affirming district court's grant of summary judgment as sanction for failing to comply with court's order); U.S. Vet. App. R. 3(a) (failure of appellant to take required steps under the Court's Rules may be grounds for appropriate Court action, to include dismissal of an appeal); U.S. Vet. App. R. Adm. & Prac. 4(b)(2) (failure to comply with Court's Rules may subject representatives to disciplinary action).