This quiz question concerns a situation where one of the three judges of a Federal Circuit panel dissents from the two judge majority opinion. Which of these answers is/are correct for designating the opinion precedential:
- a). both judges in the majority vote to make the opinion precedential;
- b). one judge in the majority votes to make the opinion precedential and the other two judges vote against it;
- c). one judge in the majority votes to make the opinion precedential and the dissenting judge votes to make the opinion precedential;
- d). neither judge in the majority votes to make the opinion precedential, but the dissenting judge votes to make the opinion precedential;
- e). all of the judges in the panel vote to make the opinion precedential;
- f). the Chief Judge can designate the opinion precedential, regardless of whether she is on the panel.
- Answer(s) below the break:
According to the Federal Circuit’s internal operating procedures, A, C, D, and E are correct. (See Internal Operating Procedures at page 18.)
The surprise answer to me is D. I’m not entirely sure why a judge would vote to make an opinion precedential when that judge dissented from the holding. My best guess is that it might make it easier for the dissenting judge to convince the full court to hear the case en banc.