US (United States) Code. Title 38. Appendix

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Veterans Benefits

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

.

-HEAD-

TITLE 38 - APPENDIX

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS RULES OF PRACTICE AND PROCEDURE OF

THE UNITED STATES COURT OF APPEALS FOR

VETERANS CLAIMS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 SEPTEMBER 1, 1996, AS AMENDED TO JANUARY 22, 2002)

Rule

1. Scope of Rules.

2. Suspension of Rules.

3. How to Appeal.

4. When to Appeal.

5. Suspension of Appellate Proceedings.

6, 7. (Reserved).

8. Stay or Injunction Pending Appeal.

9. (Reserved).

10. Designation of the Record on Appeal.

11. Transmission of the Record on Appeal.

12. Docketing the Appeal; Filing the Record on Appeal.

13, 14. (Reserved).

15. Intervention.

16 to 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 Citation of Nonprecedential Authority.

31. Filing and Service of Briefs.

32. Form of Briefs, Appendices, and Other Papers.

33. Appeal Conference.

34. Oral Argument.

35. Motions for Reconsideration, or for Decision by a Panel or by

the Full Court.

36. Entry of Judgment.

37. (Reserved).

38. Frivolous Appeals.

39. Attorney Fees and Expenses.

40. (Reserved).

41. Issuance of Mandate; Stay of Mandate.

42. Voluntary Termination or Dismissal.

43. Substitution of Parties.

44. Judicial Conference.

45. Duties of Clerk.

46. Representation.

47. Expedited Consideration.

48. Disclosure of Certain Protected Records.

49. Complaints Against Judges.

APPENDIX OF FORMS

Form

1. Notice of Appeal.

2. Appellant's Brief.

3. Notice of Appearance.

4. Motion to Waive Filing Fee.

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 1 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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 before this

Court to review decisions of the Board of Veterans' Appeals

(Board), and in applications for other relief which this Court or

one of its judges is competent to give.

(b) Rules not to Affect Jurisdiction. These rules do not extend

or limit the jurisdiction of this Court as established by law.

-CHANGE-

CHANGE OF NAME

Reference to United States Court of Veterans Appeals deemed to

refer to United States Court of Appeals for Veterans Claims, see

section 512(c) of Pub. L. 105-368, set out as a note under section

7251 of this title.

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 2 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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-

To expedite a decision, or for other good cause shown, this Court

may suspend the application of any of these rules in a particular

case and may order proceedings in accordance with its direction,

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

Appeal.

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 3 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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. An appeal will be taken by filing a written Notice of

Appeal with the Clerk within the time allowed by Rule 4(a). A

Notice of Appeal may be filed by facsimile sent to the Clerk of the

Court. Failure of an appellant to take any step under these rules

after the timely filing of a Notice of Appeal may be grounds for

such action as the Court deems appropriate, which may include

dismissal of the appeal.

(b) Service. The appellant shall serve on the Secretary of

Veterans Affairs (Secretary), and any other party to the

proceedings before the Board, a copy of the Notice of Appeal. See

Rule 25.

(c) Content. The Notice of Appeal shall:

(1) name the party or parties taking the appeal;

(2) designate the Board decision appealed from; and

(3) include the addresses of the appellant(s) and of any

representative.

Form 1 in the Appendix of Forms is a suggested form of Notice of

Appeal. An appeal will not be dismissed for informality of the

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 motion of a party.

(e) Payment of Fees. Upon the filing of any separate or joint

Notice of Appeal from a decision of the Board, each appellant shall

include with the Notice of Appeal a $50.00 nonrefundable filing fee

payable to ''U.S. Court of Appeals for Veterans Claims.'' If an

appellant believes the payment of the fee will impose a financial

hardship, the appellant may obtain a waiver of the fee by including

with the Notice of Appeal a declaration of financial hardship on

the form prescribed at Form 4 in the Appendix of Forms. See Rule

24. If the Court accepts the declaration, the fee will be waived.

If the declaration is rejected for filing by the Court, the fee or

an acceptable declaration must be received by the Court within the

time set by the Court's rules or the appeal will be dismissed. If

a facsimile Notice of Appeal is filed, the filing fee or

declaration must be received by the Court within 14 days after the

facsimile was sent.

(f) Limited Appearance. See Rule 46(d)(6).

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998; Mar. 18, 1999, eff.

May 1, 1999; Oct. 31, 2001, eff. Nov. 5, 2001.)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 4 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 4. When to Appeal

-STATUTE-

(a) Time for Appeal. To obtain review by the Court of a Board

decision, a person adversely affected by that decision must file a

Notice of Appeal within 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 shall be 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 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 it is delivered or sent by means other than United

States mail, including facsimile.

But see Rule 25(b)(3) as to an incarcerated appellant.

(b) Notice of Docketing. The Clerk shall 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. Within 30 days after the date of the

Clerk's Notice of Docketing, the Secretary shall file and serve a

copy of the Board's decision, showing the date the decision was

mailed, and shall report the filing date of any motion for its

reconsideration and the date and nature of any action on such a

motion.

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998.)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 5 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 5. Suspension of Appellate Proceedings

-STATUTE-

The Court may suspend proceedings after an appeal has been filed

under Rule 4: (1) on motion by the appellant seeking

reconsideration by the Board; or (2) by motion of the Secretary for

reasons of confession of error, by specifying the error below and

the proceedings or remedy deemed to be appropriate on remand. The

Court, on its own initiative, may also suspend appellate

proceedings. See also Rule 28(b)(2).

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rules 6 and 7 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

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Rules 6 and 7. (Reserved)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 8 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

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Rule 8. Stay or Injunction Pending Appeal

-STATUTE-

A party requesting immediate action by the Court to stay or

enjoin an action by the Secretary or the Board pending an appeal to

the Court shall do so by filing a motion and serving a copy of the

motion on all other parties by an expedited method (including

express mail, overnight delivery, facsimile or other printed

electronic transmission, or hand delivery). The motion will not be

accepted by the Clerk unless a Notice of Appeal has been filed.

The motion must state the reason for the relief requested and the

facts relied on. If the facts are subject to dispute, the motion

must be supported by affidavits or other sworn statements or copies

thereof. The motion normally will be considered by a panel of

three or more judges of the Court, but in exceptional cases the

motion may be acted on by a single judge pending consideration by a

panel.

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 9 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

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Rule 9. (Reserved)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 10 01/06/03

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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. Within 60 days after the date of the Clerk's

Notice of Docketing, the Secretary shall file with the Clerk and

serve on the appellant 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 any other material from the record which

the Secretary considers relevant. The Secretary shall serve on the

appellant a copy of those materials and a list of any record matter

which cannot be duplicated.

(b) Counter Designation. Within 30 days after the Secretary

serves the designation of the record on appeal, the appellant shall

file with the Clerk and serve on the Secretary:

(1) a counter designation of any additional material which was

before the Secretary and the Board and which the appellant

considers relevant to the appeal, 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 be conclusive of the

appellant's acceptance of the record as designated by the

Secretary.

(c) Disputes. If any difference arises as to the content of the

record on appeal, the Court, on its own initiative or on motion of

a party, shall resolve the matter. The motion of a party shall

describe the good faith efforts that have been made to resolve the

dispute.

(d) Irrelevant Materials. The parties should take note that the

record on appeal may not include materials not relevant to the

issues on appeal.

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 11 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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 of the Record. The Secretary shall retain the

original claims file and shall transmit two certified copies of the

record on appeal to the Clerk, serving a copy on each party. The

Court may direct that additional copies be transmitted.

(1) Content. The record, preceded by a table of contents which

subdivides service medical records by calendar year, must be

paginated and contain, in this order:

(A) a photocopy of the Board's decision being appealed; and

(B) all documents agreed or ordered to be part of the record on

appeal, assembled in chronological order.

(2) Time. Unless the Court orders otherwise, the Secretary shall

transmit the record within 30 days after the appellant's counter

designation or statement was due under Rule 10.

(b) Supplementation of Transmitted Record.

(1) Motion. If a party believes any additional part of the claims

file before the Secretary and the Board is relevant to an issue on

appeal, the party may, within 30 days after the record on appeal

has been filed with the Clerk, file a motion to supplement the

record, identifying the additional material to be transmitted.

(2) Opposition. A party who believes additional material sought

by another party is beyond the scope of matters relevant to the

appeal may, within 14 days after service of the motion to

supplement, file an opposition to the motion, describing the good

faith efforts made to resolve the dispute.

(3) Supplemented record. Within 14 days after the motion is

decided, the Secretary shall transmit to the Clerk two certified

copies of such supplemental record, assembled in chronological

order, paginated, and accompanied by a table of contents, and shall

serve a copy on the appellant.

(4) Other time limits. Unless the Court orders otherwise,

supplementation of the record does not extend the time for filing

either party's 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 shall permit a party or a

representative of a party to inspect and to copy material in the

record before the Board. Such inspection and copying shall be

subject to reasonable regulation by the Secretary.

(2) Confidential Information. On its own initiative or on motion

of a party, the Court may take appropriate action to prevent

disclosure of confidential information. See also Rule 48.

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 12 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 12. Docketing the Appeal; Filing the Record on Appeal

-STATUTE-

(a) Docketing the Appeal. Upon receipt of the Notice of Appeal,

the Clerk shall enter the appeal upon the docket under the

appellant's name, identified as appellant, unless otherwise ordered

by the Court.

(b) Filing the Record or Supplemental Record. Upon receipt of the

record on appeal, the Clerk shall file it and notify all parties

when appellant's brief is due. See Rules 31 and 47.

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rules 13 and 14 01/06/03

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TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

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Rules 13 and 14. (Reserved)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 15 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 15. Intervention

-STATUTE-

A party who was allowed to intervene before the Board may proceed

before the Court as an intervenor without filing a motion, but

shall serve on all parties and file with the Clerk, within 60 days

after the date of the Clerk's Notice of Docketing in accordance

with Rule 4(b), a notice of intent to intervene. A person who did

not intervene before the Board and who desires to intervene before

the Court in a proceeding initiated by a Notice of Appeal or a

petition for extraordinary relief shall serve on all parties and

file with the Clerk, within 30 days after the filing of a petition

for extraordinary relief or within 60 days after the date of the

Clerk's Notice of Docketing in accordance with Rule 4(b), a motion

for permission to intervene. The motion must contain a concise

statement of the interest of the moving person or party and the

grounds upon which intervention is sought and should advise the

Court of opposition to the motion, if any. A motion for permission

to intervene beyond this time limit will be granted only in

extraordinary circumstances.

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rules 16 to 20 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rules 16 to 20. (Reserved)

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 21 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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 and Filing. A party desiring extraordinary

relief must file a petition with the Clerk with proof of service on

the respondent(s), on any other party at interest, and on the

Secretary. The petition must contain:

(1) a statement of the precise relief sought;

(2) a statement of the facts necessary to understand the issues

presented by the petition;

(3) a statement of 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; and

(4) copies of any order or decision or parts of the record

necessary to understand the petition.

Upon receipt of the $50.00 filing fee (unless waived pursuant to

Rule 24), the Clerk shall 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 time fixed by the order. The

order shall be served by the Clerk on the named respondent(s), on

the Secretary, and on any other party at interest. Two or more

respondents may answer jointly. Any respondent who does not desire

to appear in the proceeding may so advise the Clerk and all parties

by letter, but such action will not amount to agreement that the

petition should be granted. The Clerk shall 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 preference by the

Court. The petition may be acted upon after reasonable notice of

its filing to all parties.

(c) Form and Length of Papers; Number of Copies. Except by

permission of the Court, the form and length requirements in Rule

32(g) for principal briefs apply to petitions and responses

thereto. 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 entitled: ''(Name of Petitioner),

Petitioner v. (Name and Title of Respondent), Respondent.''

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rules 22 and 23 01/06/03

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TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rules 22 and 23. (Reserved)

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 24 01/06/03

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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 be on the form prescribed at Form 4

in the Appendix of Forms. If the declaration is found to lack a

signature or to be otherwise noncompliant, it will be rejected for

filing, and the Clerk will promptly return it to the appellant (or

petitioner); within 14 days (44 days if the declaration is filed by

a person located outside a state, the District of Columbia, Puerto

Rico, or the Virgin Islands) after the return mailing of such a

noncompliant declaration, either the fee must be paid or a new

declaration that addresses the deficiencies in the noncompliant

declaration must be submitted.

-SOURCE-

(As amended Oct. 31, 2001, eff. Nov. 5, 2001.)

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 25 01/06/03

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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 this

Court must be filed with the Clerk. Filing may be accomplished by

mail addressed to the Clerk. Any paper except a brief may be filed

by facsimile (fax) sent to the Clerk at (202) 501-5848 if it is:

(1) preceded by a cover sheet showing the sender's name,

address, and telephone and fax numbers; the case number and

caption; and the number of pages being sent; and

(2) has numbered pages and is not more than ten 8 1/2 11 pages

long. The page limit does not include the cover sheet but does

include any supporting documents and the certificate of service.

A 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, and the sender need not

telephone the Court to verify receipt. If all or part of a

transmission is illegible, the Court may direct the sender to

provide a legible copy by mail.

(b) Timeliness.

(1) Facsimile Filing. A paper may be sent at any time. A paper -

except a Notice of Appeal or an Application for Attorney Fees and

Expenses - received by the Clerk

(a) on any nonbusiness day or

(b) on any business day before 7:00 a.m. on that day

is considered received on the preceding business day. A Notice of

Appeal or an Application for Attorney Fees and Expenses filed by

facsimile will be considered received on the day on which it is

received.

(2) 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.

(3) Incarcerated Appellant. A paper filed by an unrepresented

appellant confined in an institution is timely filed if deposited

in the institution's internal mail system within the time specified

for filing, 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

motion to waive the filing fee - 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 and amici to the appeal. Service on a

represented party or amicus must be made on the representative.

(d) Manner of Service. Service may be personal or by mail.

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, Department of Veterans Affairs.

(e) Proof of Service. A paper presented for filing must contain

an acknowledgement of service by the person served, showing that

person's mailing address, or a statement certified by the person

who made service (see sample on reverse side of Form 1), 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.

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998.)

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 26 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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) In computing a period of time set by these rules, or by a

Court order, or by a statute, the day of the event that begins the

period is not included. The last day of the period is included,

unless it is a Saturday, Sunday, legal holiday, or - if the act to

be done is filing a paper in the Court - a day when the Clerk's

Office has been closed by direction of the Chief Judge. Notice that

the Court is closed will be posted publicly, if circumstances

permit, and placed on a recording for telephone callers.

(2) As used in this rule, ''legal holiday'' means New Year's Day,

Birthday of Martin Luther King, Jr., Washington's Birthday,

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.

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

motion of a party for good cause shown, may extend the time

prescribed by these rules for doing any act, or may permit an act

to be done after the expiration of such time, but the Court may not

extend the time for filing a Notice of Appeal.

(c) Additional Time After Service by Mail. Wherever a party is

required or permitted to do an act, other than the filing of a

Notice of Appeal, within a prescribed period after service of a

paper on that party by another party and the paper is served by

mail, 3 days will be added to the prescribed period. Whenever such

paper is served by the Secretary in a jurisdiction other than a

state, the District of Columbia, Puerto Rico, or the Virgin

Islands, 30 additional days will be added to the prescribed

period. Additional time is not added to the periods prescribed in

orders and notices issued by the Court.

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998.)

-End-

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38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 27 01/06/03

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TITLE 38 - VETERANS' BENEFITS

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; Response. 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.

Motions should not be accompanied by proposed implementing orders.

If a motion is supported by briefs, affidavits, or other papers,

they must be served and filed with the motion. Any party may file

a response or opposition to a motion within 14 days after service

of the motion, but motions authorized by Rule 8 (Stay or Injunction

Pending Appeal) may be acted upon after reasonable notice of the

motion to all parties, and the Court may shorten or extend the time

for responding to any motion.

(b) Motions for Procedural Orders. Notwithstanding subsection (a)

of this rule, motions for procedural orders, including any motion

for an extension of time under Rule 26(b), 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. Any party adversely affected by such an action may, by

motion, request that the Court reconsider, vacate, or modify the

action within 10 days after the action is announced.

(c) Form and Length of Papers; Number of Copies. Except by

permission of the Court, the form, length, and copy requirements in

Rule 32 for principal briefs apply to motions and responses.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 28 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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's brief must contain the

appropriate headings and, in this order:

(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;

(5) an argument, beginning with a summary, and containing the

appellant's contentions with respect to the issues and the

reasons for them, with citations to the authorities and parts of

the record relied on; and

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

(b) Secretary's Brief.

(1) The Secretary's brief must conform to the requirements of

subsection (a) of this rule, 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) If the Secretary wishes to confess error as to any issue or

issues raised by appellant, but not as to all the issues raised,

and the relief the Secretary deems appropriate as to the confession

of error is different from that sought by the appellant, the

Secretary shall include a statement of concession in the brief and

identify the relief thereunder that is deemed appropriate.

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

Secretary's brief. No further briefs may be filed except with the

Court's permission.

(d) References to the Record. References in the briefs to the

record must be to the pages as transmitted by the Secretary.

Commonly understood abbreviations may be used.

(e) Reproduction of Materials. If determination of the issues

requires the study of superseded statutes, rules, 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.

(f) Multiple Appellants. In cases involving more than one

appellant, including consolidated cases, any number 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.

(g) Citation of Supplemental Authorities. When pertinent and

significant authorities come to the attention of a party after the

party's brief has been filed or after oral argument but before the

decision, a party shall promptly advise the Clerk, by letter, with

a copy to all other parties, setting forth the citations. If the

authority is not readily available in a Reporter system, the party

shall 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 citations. Any response must be made

promptly and must be similarly limited.

(h) Brief of Unrepresented Appellant. An unrepresented appellant

may file an informal brief on the form prescribed by the Court. All

other briefs must conform to the requirements of these rules.

-SOURCE-

(As amended June 14, 2000.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 29 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 it 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

28(a)(1), (5) and (6); 28(d), (e), (g) and (i); and 32; and state

which party the amicus supports and the interest of the amicus.

The brief should avoid repeating the parties' briefs and should

focus on the points not made or not emphasized in them.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 30 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 30. Citation of Nonprecedential Authority

-STATUTE-

(a) A party, intervenor, or amicus curiae may not cite as

precedent any action of this Court that is:

(1) taken by a single judge;

(2) not published in the Veterans Appeals Reporter; or

(3) withdrawn after having been published in the Veterans

Appeals Reporter.

(b) A person may refer to an action described in Rule 30(a)(1),

(2), or (3) only when the binding or preclusive effect of that

action, rather than its quality as precedent, is relevant. A copy

of the action cited must be attached to the document containing

such a reference.

-SOURCE-

(Added June 14, 2000.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 31 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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), the appellant shall serve and file a brief within

30 days after the date of the notice from the Clerk that the record

has been filed. The Secretary shall serve and file a brief within

30 days after service of the appellant's brief. The appellant may

serve and file a reply brief within 14 days after service of the

Secretary's brief, but, except for good cause shown, any brief must

be filed at least 3 days before argument. Service must be pursuant

to Rule 25 (Filing and Service).

(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 dismiss the appeal. If the Secretary fails to file

a brief or other response, the Court may take appropriate action.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 32 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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, and 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.

(b) Type; Spacing. The type or print must be at least 11 points

with horizontal spacing (pitch) of no more than 11 characters per

inch, for both text and footnotes. Text must be double spaced

(except that motions and responses under Rule 27(b) may be single

spaced), with no more than three lines of type per inch, 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 rule. This

subsection does not apply to pages of an appendix that are legible,

unreduced photocopies of documents of record.

(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 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 this Court, the Court's case

number when assigned, the title of the case, the Department of

Veterans Affairs claims file number, and a brief title 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, and any appendix containing

statutes, rules, and regulations.

(g) Page Limits and Number of Copies. 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

concerning fax filings.

(h) Identification of Proponent. The signature, printed name,

address, and telephone number of the representative of record (see

Rule 46(d)(1)) and of an unrepresented party must appear on a brief

or other document being filed with the Clerk.

-SOURCE-

(As amended Aug. 24, 2001, eff. Sept. 4, 2001.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 33 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 33. Appeal Conference

-STATUTE-

(a) Participation. The Court may direct the representatives and

parties without representatives to participate in a prehearing

conference, in person or by telephone, to consider simplification

of the issues and such other matters as may help the Court resolve

the case. 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 at any time before argument or

submission of the case.

(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 which

has failed to resolve a dispute about the content of the record on

appeal.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 34 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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. The

Court may order oral argument on its own initiative or on the

motion of a party filed with that party's principal brief. The

appellant may also request that oral argument be held in a location

other than Washington, D.C.

(b) Notice of Argument; Postponement. The Clerk shall advise all

parties whether oral argument is to be heard, and, if so, where and

when, and the time to be allowed each side. Where possible, the

Clerk will schedule oral argument so as to minimize inconvenience

to appellants or their representatives. 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.

(c) Order and Content of Argument. The appellant may 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 may open and conclude the argument.

(d) Non-appearance of Parties. If any party fails to appear to

present argument, the Court will hear argument by any appellant who

is present, and may hear argument by any other party who is

present. If no party appears, the case will be decided on the

briefs and the record on appeal unless the Court orders otherwise.

(e) Use of Physical Exhibits at Argument; Removal. A party who

intends to use physical exhibits other than documents shall arrange

with the Clerk to have them placed in the courtroom on the date of

the argument before the Court convenes. After the argument, the

party shall remove the exhibits unless the Court otherwise

directs. If the exhibits are not reclaimed within a reasonable

time after notice is given by the Clerk, they will be disposed of

by the Clerk.

(f) Motions. Oral argument normally is not granted on motions.

(g) Oral Argument. Oral argument will be held as announced by the

Chief Judge. The announcement will indicate the composition of the

panel, although there is no guarantee that the panel on the

argument date will be identical to that announced since a judge may

be recused from a case or, for a number of reasons, may be

unavailable.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 35 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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. A party in a case decided by a

single judge may move for reconsideration by the single judge. A

party in a case dismissed by the Clerk pursuant to Rule 45(i) may

move for reconsideration by the Clerk. 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.

(b) Motion for Panel Decision. A party in a case decided by a

single judge may move for decision by a panel of the Court.

(c) Motion for Full Court Decision. A party may move for decision

by the full Court (1) initially, or (2) after a panel has decided a

case, or (3) after a panel has denied a motion for panel decision

or reconsideration. A motion for decision by the full Court in a

case decided only by a single judge is not permitted. Motions for

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) A motion for Clerk reconsideration or single-judge decision,

or both, and for single-judge reconsideration or a panel decision,

or both, must be filed within 21 days (51 days if the motion is

filed by a person located outside a state, the District of

Columbia, Puerto Rico, or the Virgin Islands) after the date of the

Clerk's or single judge's decision.

(2) A motion for panel reconsideration, for full Court decision,

or for both, must be filed within 21 days (51 days if the motion is

filed by a person located outside a state, the District of

Columbia, Puerto Rico, or the Virgin Islands) after the date of the

initial panel decision or order denying a motion for panel

decision.

(3) A motion for initial consideration of a case by the full

Court must be filed within 30 days after the date on which the

appellant's brief was served.

(4) A motion for reconsideration of a case by the full Court must

be filed within 21 days (51 days if the motion is filed by a person

located outside a state, the District of Columbia, 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 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 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; Number of Copies. Except by the Court's

permission, a motion or response (including any supporting

memorandum or brief) under this rule must not exceed 15 pages. The

motion must otherwise comply with Rule 27, but it need not indicate

whether it is opposed. A motion for 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 panel or full Court decision ordinarily will not be

granted without such a request. A motion for reconsideration will

be decided by the judge or panel that rendered the decision. A

motion for panel decision will be referred to a panel. A motion

for full Court decision will be referred to all of the judges.

Consideration by the full Court requires the vote of a majority of

the judges. The Clerk shall return an untimely motion or one that

fails to include the statement required by subsection (e) of this

rule.

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998; Aug. 24, 2001, eff.

Sept. 4, 2001.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 36 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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

after the time allowed in Rule 35(d)(1) or (2) has expired, or

after the Court has acted on a timely motion for single-judge or

panel reconsideration or for panel decision. The filing of a

motion for full Court decision or reconsideration will not postpone

entry of the judgment. 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 Feb. 11, 1998, eff. Apr. 1, 1998.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 37 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 37. (Reserved)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 38 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 38. Frivolous Appeals

-STATUTE-

If the Court determines that an appeal is frivolous, it may enter

such order as it deems appropriate.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 39 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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) Time for filing. An application pursuant to 28 U.S.C. Sec.

2412 for award of attorney fees and/or other expenses in connection

with an appeal or petition must be filed with the Clerk within 30

days after this Court's judgment becomes final, 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. See Rule 25 (Filing and

Service).

(b) Supplemental application. An appellant or petitioner whose

application described in subsection (a) of this rule has been

granted in whole or in part may, not later than 30 days after the

Court action granting such application, file a supplemental

application for attorney fees and other expenses in connection with

the submission or defense of such subsection (a) application. See

Rule 25.

(c) Response. Within 30 days after the date on which an

application described in subsection (a) or a supplemental

application described in subsection (b) is filed, the Secretary

shall file and serve a response to the application or supplemental

application, stating which elements of the application or

supplemental application are not contested and explaining the

Secretary's position on those elements that are contested.

(d) Reply. Within 30 days after service of the Secretary's

response, the applicant may file and serve a reply addressing those

matters contested by the Secretary.

(e) Appendices. The parties shall file as appendices to the

application, response, and reply those relevant papers which are

not already before the Court.

-SOURCE-

(As amended Aug. 16, 1996, eff. Aug. 16, 1996; Feb. 11, 1998,

eff. Apr. 1, 1998; Nov. 1, 2001, eff. Nov. 9, 2001.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 40 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 40. (Reserved)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 41 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 41. Issuance of Mandate; Stay of Mandate

-STATUTE-

(a) Date of Issuance. The mandate of this Court will issue 60

days after the date of entry of 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 will issue in

accordance with 38 U.S.C. Sec. 7291(a).

(b) Mandate in Consent Dispositions. An order on consent

dismissing, terminating, or remanding a case will also constitute

the final judgment and mandate of the Court.

-SOURCE-

(As amended Feb. 11, 1998, eff. Apr. 1, 1998; Nov. 1, 2001, eff.

Nov. 9, 2001.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 42 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 an

appeal or petition 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 to dismiss, an appeal or petition 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.

-SOURCE-

(As amended Nov. 1, 2001, eff. Nov. 9, 2001.)

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 43 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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, to the

extent permitted by law, be filed within the time limit in Rule 4

by any person claiming entitlement to accrued benefits under 38

U.S.C. Sec. 5121(a), by the personal representative of the deceased

party's estate, by any other appropriate person, or, if there is no

such person, by the party's representative of record before the

Board.

(2) After Notice of Appeal. If a party dies after a Notice of

Appeal is filed or while a proceeding is pending in this Court, any

person claiming entitlement to accrued benefits under 38 U.S.C.

Sec. 5121(a), 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 or by any party. If no such person exists, any party may

suggest the death on the record and proceedings will then be as the

Court directs.

(b) Substitution for Other Causes. If substitution of a party in

this Court is necessary for any reason other than death, the Court

may order it on motion of any party or on its own initiative.

(c) Public Officers; Death or Separation from Office.

(1) Naming as Party. The Secretary must be described as the

appellee by name and by official title. Any public officer who is

a respondent must be described by official title rather than by

name; but the Court may require that the name of the public officer

be added.

(2) Death or Separation. 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 must be in the

name of the substituted party, but any misnomer not affecting the

substantial rights of the parties will be disregarded.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 44 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 shall pay a

registration fee in an amount fixed by the Court to defray expenses

of the conference. The Chief Judge may excuse the payment of the

fee in individual cases. These fees shall be maintained in a bank

account which shall be known as the ''CVA Judicial Conference

Fund.'' Money from this account shall be disbursed by the Clerk at

the direction of the Chief Judge to defray conference expenses.

Any excess shall be used to pay future conference-related expenses.

(e) Responsibility of the Clerk. The Clerk shall be responsible

for receipt and disbursement of conference funds, for all

conference records and accounts, and for conference staff support,

and shall perform 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

responsibilities to another judge of the Court.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 45 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 shall take the oath required by

law. Neither the Clerk nor any deputy clerk may practice as an

attorney or counselor in any court while continuing in office. The

Court will be deemed always open for the purpose of filing any

proper paper, of issuing and returning process, and of making

motions and orders. The office of the Clerk, with the Clerk or a

deputy clerk in attendance, will be open during business hours on

all days except Saturdays, Sundays, and legal holidays (as defined

in Rule 26(a)) from 9:00 a.m. to 4:00 p.m. A night box will be

available at the entrance to the Public Office from 4:00 p.m. to

6:00 p.m. on such business days.

(b) The Docket; Calendar; Other Records Required. The Clerk

shall:

(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, or order, or entry of judgment, the

Clerk shall send a copy to each party to the proceeding, and shall

note the date of issuance in the docket.

(d) Custody of Records and Papers. The Clerk shall have custody

of the records and papers of the Court. The Clerk shall 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 this Court.

Original papers transmitted as the record on appeal will be

returned upon disposition of the case. The Clerk shall preserve

copies of briefs and appendices and other printed papers filed.

(e) Court Seal. The Clerk shall be the custodian of the seal of

the Court. The seal will appear as ordered by the Court. The seal

will be the means of authentication of all records and certificates

and process issued from this Court.

(f) Schedule of Fees. The Clerk shall maintain in the Public

Office a schedule of fees approved by the Court.

(g) Motions. The Clerk may act on motions, if consented to or

unopposed, that seek to:

(1) dismiss an appeal or an application for extraordinary

relief 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 an order of the Court, unless the motion is made

after the time limit has elapsed;

(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

act on an application for attorney fees and expenses filed pursuant

to 28 U.S.C. Sec. 2412 (EAJA) when the Secretary does not contest

the application, and on joint motions to dismiss EAJA 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. If a party's motion for reconsideration by the Clerk of a

case dismissed by the Clerk under this subsection is not granted by

the Clerk, the matter must be referred for decision by a judge.

(j) Construction of Rules in Self-Representation Cases. The Clerk

shall liberally construe the rules as they apply to appellants

representing themselves.

-SOURCE-

(As amended Apr. 30, 1998; Aug. 24, 2001, eff. Sept. 4, 2001.)

-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. The

only change is marked by ) :

---------------------------------------------------------------------

---------------------------------------------------------------------

For filing Notice of Appeal or $50.00

Petition for Extraordinary

Relief in this Court, but not

when the Court orders case

redocketing for its

administrative convenience

For filing Notice of Appeal to 105.00

the U.S. Court of Appeals for

the Federal Circuit (fee set by

that court, payable to this

Court)

For reproducing a paper copy from .50*

original documents or from

microfiche or microfilm

reproductions of original

records, per copy page

For each microfiche sheet of film 3.00

or microfilm jacket copy of any

Court record, when available

For reproducing audio or video 15.00

tape recording, including cost

of materials

For searching Court records, per 15.00*

name or item searched

For retrieval of a Court record 25.00

from a Federal Records Center or

National Archives

For certifying a document or 5.00

paper, whether certification is

made directly on the document or

by separate instrument

For application for admission to 30.00

practice before the Court

For a certificate of admission to 25.65)

practice, suitable for framing

(fee set by, and payable to,

printer)

For processing a check paid to 6.00

the Court which is returned for

lack of funds (fee set by

National Finance Center)

-------------------------------

DATED: June 9, 1998 FOR THE COURT:

ROBERT F. COMEAU

Clerk of the Court

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 46 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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 Practice.

(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 territory, possession, or commonwealth of the United

States, and is in good standing therein, may be admitted to the bar

of this Court upon application.

(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 prescribed 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 subparagraph (1). A current court

certificate is one executed within three months preceding the date

of the filing of the application.

(b) Admission of Non-attorney Practitioners to Practice. A

non-attorney of good moral character and repute

(1) under the direct supervision of an attorney admitted to the

bar of the Court, or

(2) employed by an organization which 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 prescribed fee

(payable by check or money order). In making the certification in

subparagraph (2), 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 non-attorney to

appear on behalf of a party or amicus for the purpose of a

particular case. Whenever a person is admitted to practice under

this subsection, the person shall 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

proceedings in that case.

(d) Representation Requirements.

(1) Practitioner defined. A person who has been admitted to

practice under subsections (a) or (b) or has been permitted to

appear under subsections (c) of this Rule 46 is referred to in this

subsection (d) as a practitioner.

(2) Appearance. No practitioner may appear on behalf of a party

or amicus in any proceedings in a case without first filing:

(A) a written notice of appearance in the detail prescribed by

Form 3 in the Appendix of Forms; and

(B) a copy of the fee agreement if the practitioner is

representing an appellant or petitioner or intervenor, unless the

representation is without charge to that party. If the agreement

provides for direct payment out of past-due benefits under 38

U.S.C. Sec. 5904, a copy must be served on the Secretary.

An appearance may not be made in the name of a law firm or other

organization.

(3) Papers filed by a non-attorney. Each paper filed by a

non-attorney practitioner must include the name, address, and

signature of the responsible supervising attorney under Rule

46(b)(1) or the identification of the employing organization under

Rule 46(b)(2).

(4) Withdrawal. A practitioner may withdraw from a case by filing

a notice stating that the party has consented to the withdrawal, if

another practitioner has previously entered an appearance on behalf

of the party. 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) assures 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 and self-represented

party must notify the Clerk and all other parties 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.

(6) Limited representation. This Rule 46(d) does not apply when

a practitioner files a Notice of Appeal on behalf of an appellant

and specifies that the representation is limited to that filing.

(7) Subsections (2)(B), (4), (5), and (6) of this Rule 46(d) do

not apply to practitioners representing the Secretary.

(e) (Rescinded)

(f) Appearance by Law Students.

(1) 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 this Court.

(2) An eligible law student may participate in the preparation of

briefs and other documents to be filed in this 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 shall assume personal professional

responsibility for the law student's work and for supervising the

quality of his or her work. The attorney should be familiar with

the case and prepared to supplement or correct any written or oral

statement made by the student.

(3) 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 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 of 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, 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.

(g) Self-representation. Any appellant, petitioner, or intervenor

may be self-represented before the Court.

-SOURCE-

(As amended Mar. 18, 1999, eff. May 1, 1999; Dec. 14, 2001, eff.

Dec. 26, 2001.)

-MISC1-

LIMITED APPEARANCES

Order of the United States Court of Appeals for Veterans Claims,

dated Mar. 18, 1999, provided that:

''This Court's Rules of Practice and Procedure, as changed

effective May 1, 1999, permit a limited appearance by a

practitioner only for the purpose of filing a Notice of Appeal. It

is

''ORDERED that, notwithstanding the foregoing restriction, a

staff attorney of a pro bono representation program operating under

a grant or contract made in connection with the authority first

provided in Public Law No. 102-229 may enter a limited appearance

for the purpose of case screening and referral.''

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 47 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 47. Expedited Consideration

-STATUTE-

(a) Motion and Order. On motion of a party 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.

(b) Filing and Service of Papers. Expedited proceedings will be

scheduled as directed by the Court. Unless otherwise ordered, the

appellant's principal brief shall be served and filed within 25

days after the date of the Clerk's notice that the record on appeal

has been filed. The Secretary's brief shall be served and filed

within 15 days after service of the appellant's brief. Any reply

brief shall be served and filed within 10 days after service of the

Secretary's brief.

(c) Form and Length of Briefs. Briefs filed under this rule shall

comply with Rules 28 and 32, except that principal briefs must be

limited to 10 pages, reply briefs must be limited to five 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). Such

supplementation does not extend the time for filing any brief.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 48 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

TITLE 38 - APPENDIX

RULES OF PRACTICE AND PROCEDURE OF THE UNITED STATES COURT OF

APPEALS FOR VETERANS CLAIMS

-HEAD-

Rule 48. Disclosure of Certain Protected Records

-STATUTE-

(a) 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 shall 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 of Veterans Appeals case number)'' (not

disclosing the identity of any individual), and serve on the

protected patient or subject 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, the Clerk, unless otherwise ordered by the Court,

shall 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, shall refer any subsequent filing only to the new case

number and caption assigned by the Clerk.

(b) The procedures described in this rule may, in the Court's

discretion, be applied to cases that the Court orders sealed but

which do not contain records protected by 38 U.S.C. Sec. 7332.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS Rule 49 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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). Copies are available from the Clerk on request.

-End-

-CITE-

38 USC APPENDIX - RULES OF COURT OF APPEALS FOR VETERANS

CLAIMS APPENDIX OF FORMS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

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

<img src="http://uscode.house.gov/images/code02/images/t38af1.gif"

width=576 height=773 alt="Form 1">

<p>

FORM 2

<img src="http://uscode.house.gov/images/code02/images/t38af2.gif"

width=576 height=642 alt="Form 2">

<p>

FORM 3

<img src="http://uscode.house.gov/images/code02/images/t38af3.gif"

width=576 height=783 alt="Form 3">

<p>

FORM 4

<img src="http://uscode.house.gov/images/code02/images/t38af4p1.gif"

width=576 height=688 alt="Form 4, page 1 of 2">

<p>

<img src="http://uscode.house.gov/images/code02/images/t38af4p2.gif"

width=576 height=792 alt="Form 4, page 2 of 2">

-End-