In re Panel Referrals in Pro Se Cases

ORDER

It is sua sponte,

ORDERED that when a determination is made, under the Internal Operating Procedures, Part 1(b)(5) or 11(c) second paragraph, and Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), that a panel should be selected for consideration and disposition of an appeal or other matter in which the appellant is not represented, a clerk’s order, designated for electronic publication only, will be entered stating that such a detérmination has been made and that the matter will be stayed for 30 days.

concurring in part and dissenting in part:

I agree with the order except for the explicit limitation to the two situations set forth in the Court’s Internal Operating Procedures (where the screening judge decides to refer a case to a panel either initially after screening or at the request of two other judges after circulation of a proposed single-judge disposition). Rather, I believe that any determination that a case involving an unrepresented appellant is to be referred to a panel (or initially to the en banc Court, for that matter) should precipitate a notice order of the Court under this new procedure. This could also happen after the screening judge makes an initial screening determination for single-judge disposition (including after full Court circulation even though two judges do no request referral to a panel) or on a motion for a panel decision made by either party under Rule 35(b) of the Court’s Rules of Practice and Procedure (Rules) after issuance of a single-judge disposition. Initial en bane review for a ease involving an unrepresented appellant could occur based on the suggestion of a judge (if three others agree) or on the motion of a party under Rule 35(c)(1).