U.S. v. Sullivan

With Judge Wallach on the panel in the Federal Circuit’s panel-stacking case, I’m curious if the court will look to other areas of the law, such as courts of military justice, to evaluate the fairness of panel stacking.  In U.S. v. Sullivan, the United States Court of Appeals for the Armed Forces approved of a convening authority’s practice because the selected panelists were fairly selected:

First, there is no appearance of an unfair panel in this

case. Although the convening authority deviated from the

Article 25, UCMJ, criteria by categorically excluding flag

officers from the venire panel, he provided Appellant with a

venire of fellow senior captains who were fully qualified to sit

on a court-martial panel. Indeed, we find no basis to conclude

that the convening authority selected the members on any factors

other than their “age, education, training, experience, length

of service, and judicial temperament.” Article 25(d)(2), UCMJ.

Further, the record provides no indication that these panel

members failed to fully, carefully, and appropriately consider

Appellant’s case in arriving at a verdict and sentence.

Moreover, the convening authority’s motivation in excluding flag

officers from this case was not to stack the panel against

Appellant. Rather, the convening authority relied on his

experience in concluding that the flag officers would not be

available to actually sit on the panel and hear the case.4 United

States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011). Based on these

circumstances, we conclude that there was no appearance of


Notably, the convening authority did not select panel members based on a pre-disposed point of view.

The Federal Circuit resolves its internal splits by going en banc.  The USPTO has a similar provision in that it allows all of its PTAB judges to vote whether a decision should be made precedential.  However, the USPTO has something that the Federal Circuit does not have — if the Director of the USPTO chooses to do so, he or she may enlarge a panel with additional judges in order to reconsider an initial appeal decision.  This would be the equivalent of the Federal Circuit’s Chief Judge enlarging a CAFC panel after an initial decision.  Moreover, the USPTO has notice and comment rule making at its disposal.

Comments are closed.