{"id":9022,"date":"2017-06-14T14:12:33","date_gmt":"2017-06-14T20:12:33","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=9022"},"modified":"2017-06-14T14:12:33","modified_gmt":"2017-06-14T20:12:33","slug":"us-v-sullivan","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=9022","title":{"rendered":"U.S. v. Sullivan"},"content":{"rendered":"

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. \u00a0In U.S. v. Sullivan<\/a>,<\/span> the United States Court of Appeals for the Armed Forces approved of a convening authority’s practice because the selected panelists were fairly selected:<\/p>\n

\n

First, there is no appearance of an unfair panel in this<\/p>\n

case. <\/span>Although the convening authority deviated from the<\/p>\n

Article 25, UCMJ, criteria by categorically excluding flag<\/p>\n

officers from the venire panel, he provided Appellant with a<\/p>\n

venire of fellow senior captains who were fully qualified to sit<\/p>\n

on a court-martial panel. <\/span>Indeed, we find no basis to conclude<\/p>\n

that the convening authority selected the members on any factors<\/p>\n

other than their \u201cage, education, training, experience, length<\/p>\n

of service, and judicial temperament.\u201d <\/span>Article 25(d)(2), UCMJ.<\/p>\n

Further, the record provides no indication that these panel<\/p>\n

members failed to fully, carefully, and appropriately consider<\/p>\n

Appellant\u2019s case in arriving at a verdict and sentence.<\/p>\n

Moreover, the convening authority\u2019s motivation in excluding flag<\/p>\n

officers from this case was not to stack the panel against<\/p>\n

Appellant. <\/span>Rather, the convening authority relied on his<\/p>\n

experience in concluding that the flag officers would not be<\/p>\n

available to actually sit on the panel and hear the case.4 United<\/p>\n

States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011). Based on these<\/p>\n

circumstances, we conclude that there was no appearance of<\/p>\n

<\/p>\n

unfairness.<\/p>\n

\n<\/blockquote>\n

Notably, the convening authority did not select panel members based on a pre-disposed point of view.<\/p>\n

The Federal Circuit resolves its internal splits by going en banc. \u00a0The USPTO has a similar provision in that it allows all of its PTAB judges to vote whether a decision should be made precedential. \u00a0However, 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. \u00a0This would be the equivalent of the Federal Circuit’s Chief Judge enlarging a CAFC panel after an initial decision. \u00a0Moreover, the USPTO has notice and comment rule making at its disposal.<\/p>\n","protected":false},"excerpt":{"rendered":"

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. \u00a0In U.S. v. Sullivan, the United States Court of Appeals for the Armed Forces approved of a […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9022"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9022"}],"version-history":[{"count":1,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9022\/revisions"}],"predecessor-version":[{"id":9023,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9022\/revisions\/9023"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9022"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9022"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9022"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}