`
`
`
`APPENDIX
`
`APPENDIX
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`1a
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`U.S. Const. art. I, § 8, cl. 9.
`The Congress shall have Power * * *
`To constitute Tribunals inferior to the supreme
`Court; * * *
`
`
`U.S. Const. art. II, § 2.
`Section 2. The President shall be Commander in
`Chief of the Army and Navy of the United States, and
`of the Militia of the several States, when called into
`the actual Service of the United States; he may re-
`quire the Opinion, in writing, of the principal Officer
`in each of the executive Departments, upon any Sub-
`ject relating to the Duties of their respective Offices,
`and he shall have Power to Grant Reprieves and Par-
`dons for Offences against the United States, except in
`Cases of Impeachment.
`He shall have Power, by and with the Advice and
`Consent of the Senate, to make Treaties, provided two
`thirds of the Senators present concur; and he shall
`nominate, and by and with the Advice and Consent of
`the Senate, shall appoint Ambassadors, other public
`Ministers and Consuls, Judges of the supreme Court,
`and all other Officers of the United States, whose Ap-
`pointments are not herein otherwise provided for, and
`which shall be established by Law: but the Congress
`may by Law vest the Appointment of such inferior Of-
`ficers, as they think proper, in the President alone, in
`the Courts of Law, or in the Heads of Departments.
`
`
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`
`2a
`
`The President shall have Power to fill up all Va-
`cancies that may happen during the Recess of the Sen-
`ate, by granting Commissions which shall expire at
`the End of their next Session.
`
`
`U.S. Const. art. III, § 1.
`The judicial Power of the United States, shall be
`vested in one supreme Court, and in such inferior
`Courts as the Congress may from time to time ordain
`and establish. The Judges, both of the supreme and
`inferior Courts, shall hold their Offices during good
`Behaviour, and shall, at stated Times, receive for
`their Services, a Compensation, which shall not be di-
`minished during their Continuance in Office.
`
`
`17 U.S.C. § 801. Copyright Royalty Judges;
`appointment and functions
`(a) APPOINTMENT.—The Librarian of Congress
`shall appoint 3 full-time Copyright Royalty Judges,
`and shall appoint 1 of the 3 as the Chief Copyright
`Royalty Judge. The Librarian shall make appoint-
`ments to such positions after consultation with the
`Register of Copyrights.
`*
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`*
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`*
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`
`3a
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`17 U.S.C. § 802. Copyright Royalty Judgeships;
`staff
`
`*
`*
`*
`INDEPENDENCE OF COPYRIGHT ROYALTY
`(f)
`JUDGE.—
`(1) IN MAKING DETERMINATIONS.—
`(A) IN GENERAL.—(i) Subject to subpara-
`graph (B) and clause (ii) of this subparagraph,
`the Copyright Royalty Judges shall have full
`independence in making determinations con-
`cerning adjustments and determinations of
`copyright royalty rates and terms, the distri-
`bution of copyright royalties, the acceptance or
`rejection of royalty claims, rate adjustment pe-
`titions, and petitions to participate, and in is-
`suing other rulings under this title, except that
`the Copyright Royalty Judges may consult
`with the Register of Copyrights on any matter
`other than a question of fact.
`(ii) One or more Copyright Royalty Judges
`may, or by motion to the Copyright Royalty
`Judges, any participant in a proceeding may,
`request from the Register of Copyrights an in-
`terpretation of any material questions of sub-
`stantive law that relate to the construction of
`provisions of this title and arise in the course
`of the proceeding. Any request for a written
`interpretation shall be in writing and on the
`record, and reasonable provision shall be made
`to permit participants in the proceeding to
`comment on the material questions of substan-
`tive law in a manner that minimizes duplica-
`tion and delay. Except as provided in subpar-
`agraph (B), the Register of Copyrights shall
`
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`
`4a
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`deliver to the Copyright Royalty Judges a writ-
`ten response within 14 days after the receipt
`of all briefs and comments from the partici-
`pants. The Copyright Royalty Judges shall ap-
`ply the legal interpretation embodied in the re-
`sponse of the Register of Copyrights if it is
`timely delivered, and the response shall be in-
`cluded in the record that accompanies the final
`determination. The authority under this
`clause shall not be construed to authorize the
`Register of Copyrights to provide an interpre-
`tation of questions of procedure before the
`Copyright Royalty Judges, the ultimate ad-
`justments and determinations of copyright
`royalty rates and terms, the ultimate distribu-
`tion of copyright royalties, or the acceptance or
`rejection of royalty claims, rate adjustment pe-
`titions, or petitions to participate in a proceed-
`ing.
`(B) NOVEL QUESTIONS.—(i) In any case in
`which a novel material question of substantive
`law concerning an interpretation of those pro-
`visions of this title that are the subject of the
`proceeding is presented, the Copyright Royalty
`Judges shall request a decision of the Register
`of Copyrights, in writing, to resolve such novel
`question. Reasonable provision shall be made
`for comment on such request by the partici-
`pants in the proceeding, in such a way as to
`minimize duplication and delay. The Register
`of Copyrights shall transmit his or her decision
`to the Copyright Royalty Judges within 30
`days after the Register of Copyrights receives
`all of the briefs or comments of the partici-
`pants. Such decision shall be in writing and
`
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`
`5a
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`included by the Copyright Royalty Judges in
`the record that accompanies their final deter-
`mination. If such a decision is timely delivered
`to the Copyright Royalty Judges, the Copy-
`right Royalty Judges shall apply the legal de-
`terminations embodied in the decision of the
`Register of Copyrights in resolving material
`questions of substantive law.
`(ii) In clause (i), a ‘‘novel question of law’’
`is a question of law that has not been deter-
`mined in prior decisions, determinations, and
`rulings described in section 803(a).
`*
`*
`*
`
`
`
`17 U.S.C. § 803. Proceedings of Copyright
`Royalty Judges
`(a) PROCEEDINGS.—
`(1) IN GENERAL.—The Copyright Royalty
`Judges shall act in accordance with this title, and
`to the extent not inconsistent with this title, in ac-
`cordance with subchapter II of chapter 5 of title 5,
`in carrying out the purposes set forth in section
`801. The Copyright Royalty Judges shall act in
`accordance with regulations issued by the Copy-
`right Royalty Judges and the Librarian of Con-
`gress, and on the basis of a written record, prior
`determinations and interpretations of the Copy-
`right Royalty Tribunal, Librarian of Congress, the
`Register of Copyrights, copyright arbitration roy-
`alty panels (to the extent those determinations
`are not inconsistent with a decision of the Librar-
`ian of Congress or the Register of Copyrights), and
`
`
`
`
`
`6a
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`the Copyright Royalty Judges (to the extent those
`determinations are not inconsistent with a deci-
`sion of the Register of Copyrights that was timely
`delivered to the Copyright Royalty Judges pursu-
`ant to section 802(f)(1)(A) or (B), or with a decision
`of the Register of Copyrights pursuant to section
`802(f)(1)(D)), under this chapter, and decisions of
`the court of appeals under this chapter before, on,
`or after the effective date of the Copyright Royalty
`and Distribution Reform Act of 2004.
`(2)
`JUDGES
`AND
`PANEL
`AS
`ACTING
`INDIVIDUALLY.— The Copyright Royalty Judges
`shall preside over hearings in proceedings under
`this chapter en banc. The Chief Copyright Roy-
`alty Judge may designate a Copyright Royalty
`Judge to preside individually over such collateral
`and administrative proceedings, and over such
`proceedings under paragraphs (1) through (5) of
`subsection (b), as the Chief Judge considers ap-
`propriate.
`(3) DETERMINATIONS.—Final determinations
`of the Copyright Royalty Judges in proceedings
`under this chapter shall be made by majority vote.
`A Copyright Royalty Judge dissenting from the
`majority on any determination under this chapter
`may issue his or her dissenting opinion, which
`shall be included with the determination.
`*
`*
`*
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`
`7a
`
`17 U.S.C. § 804. Institution of proceedings
`(a) FILING OF PETITION.—With respect to proceed-
`ings referred to in paragraphs (1) and (2) of section
`801(b) concerning the determination or adjustment of
`royalty rates as provided in sections 111, 112, 114,
`115, 116, 118, 119, and 1004, during the calendar
`years specified in the schedule set forth in subsection
`(b), any owner or user of a copyrighted work whose
`royalty rates are specified by this title, or are estab-
`lished under this chapter before or after the enact-
`ment of the Copyright Royalty and Distribution Re-
`form Act of 2004, may file a petition with the Copy-
`right Royalty Judges declaring that the petitioner re-
`quests a determination or adjustment of the rate. The
`Copyright Royalty Judges shall make a determination
`as to whether the petitioner has such a significant in-
`terest in the royalty rate in which a determination or
`adjustment is requested. If the Copyright Royalty
`Judges determine that the petitioner has such a sig-
`nificant interest, the Copyright Royalty Judges shall
`cause notice of this determination, with the reasons
`for such determination, to be published in the Federal
`Register, together with the notice of commencement
`of proceedings under this chapter. With respect to
`proceedings under paragraph (1) of section 801(b) con-
`cerning the determination or adjustment of royalty
`rates as provided in sections 112 and 114, during the
`calendar years specified in the schedule set forth in
`subsection (b), the Copyright Royalty Judges shall
`cause notice of commencement of proceedings under
`this chapter to be published in the Federal Register as
`provided in section 803(b)(1)(A).
`*
`*
`*
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`
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`
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`
`
`8a
`
`26 U.S.C. § 7443A. Special trial judges
`(a) Appointment
`The chief judge may, from time to time, appoint
`special trial judges who shall proceed under such
`rules and regulations as may be promulgated by the
`Tax Court.
`(b) Proceedings which may be assigned to
`special trial judges
`The chief judge may assign—
`(1) any declaratory judgment proceeding,
`(2) any proceeding under section 7463,
`(3) any proceeding where neither the amount of
`the deficiency placed in dispute (within the meaning
`of section 7463) nor the amount of any claimed over-
`payment exceeds $50,000,
`(4) any proceeding under section 6320 or 6330,
`(5) any proceeding under section 7436(c),
`(6) any proceeding under section 7623(b)(4), and
`(7) any other proceeding which the chief judge
`may designate, to be heard by the special trial judges
`of the court.
`(c) Authority to make court decision
`The court may authorize a special trial judge to
`make the decision of the court with respect to any pro-
`ceeding described in paragraph (1), (2), (3), (4), (5), or
`(6) of subsection (b), subject to such conditions and re-
`view as the court may provide.
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`9a
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`(d) Salary
`Each special trial judge shall receive salary—
`(1) at a rate equal to 90 percent of the rate for
`judges of the Tax Court, and
`(2) in the same installments as such judges.
`(e) Expenses for travel and subsistence
`Subsection (d) of section 7443 shall apply to spe-
`cial trial judges subject to such rules and regulations
`as may be promulgated by the Tax Court.
`
`
`28 U.S.C. § 455. Disqualification of justice,
`judge, or magistrate judge
`(a) Any justice, judge, or magistrate judge of the
`United States shall disqualify himself in any proceed-
`ing in which his impartiality might reasonably be
`questioned.
`(b) He shall also disqualify himself in the follow-
`ing circumstances:
`(1) Where he has a personal bias or prejudice
`concerning a party, or personal knowledge of dis-
`puted evidentiary facts concerning the proceed-
`ing;
`(2) Where in private practice he served as law-
`yer in the matter in controversy, or a lawyer with
`whom he previously practiced law served during
`such association as a lawyer concerning the mat-
`ter, or the judge or such lawyer has been a mate-
`rial witness concerning it;
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`10a
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`(3) Where he has served in governmental em-
`ployment and in such capacity participated as
`counsel, adviser or material witness concerning
`the proceeding or expressed an opinion concern-
`ing the merits of the particular case in contro-
`versy;
`(4) He knows that he, individually or as a fi-
`duciary, or his spouse or minor child residing in
`his household, has a financial interest in the sub-
`ject matter in controversy or in a party to the pro-
`ceeding, or any other interest that could be sub-
`stantially affected by the outcome of the proceed-
`ing;
`(5) He or his spouse, or a person within the
`third degree of relationship to either of them, or
`the spouse of such a person:
`(i) Is a party to the proceeding, or an of-
`ficer, director, or trustee of a party;
`(ii) Is acting as a lawyer in the proceeding;
`(iii) Is known by the judge to have an in-
`terest that could be substantially affected by
`the outcome of the proceeding;
`(iv) Is to the judge’s knowledge likely to be
`a material witness in the proceeding.
`(c) A judge should inform himself about his per-
`sonal and fiduciary financial interests, and make a
`reasonable effort to inform himself about the personal
`financial interests of his spouse and minor children
`residing in his household.
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`11a
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`(d) For the purposes of this section the following
`words or phrases shall have the meaning indicated:
`(1) ‘‘proceeding’’ includes pretrial, trial, appel-
`late review, or other stages of litigation;
`(2) the degree of relationship is calculated ac-
`cording to the civil law system;
`(3) ‘‘fiduciary’’ includes such relationships as
`executor, administrator, trustee, and guardian;
`(4) ‘‘financial interest’’ means ownership of a
`legal or equitable interest, however small, or a re-
`lationship as director, adviser, or other active par-
`ticipant in the affairs of a party, except that:
`(i) Ownership in a mutual or common in-
`vestment fund that holds securities is not a
`‘‘financial interest’’ in such securities unless
`the judge participates in the management of
`the fund;
`(ii) An office in an educational, religious,
`charitable, fraternal, or civic organization is
`not a ‘‘financial interest’’ in securities held by
`the organization;
`(iii) The proprietary interest of a policy-
`holder in a mutual insurance company, of a
`depositor in a mutual savings association, or
`a similar proprietary interest, is a ‘‘financial
`interest’’ in the organization only if the out-
`come of the proceeding could substantially af-
`fect the value of the interest;
`(iv) Ownership of government securities
`is a ‘‘financial interest’’ in the issuer only if
`the outcome of the proceeding could substan-
`tially affect the value of the securities.
`
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`12a
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`(e) No justice, judge, or magistrate judge shall ac-
`cept from the parties to the proceeding a waiver of any
`ground for disqualification enumerated in subsection
`(b). Where the ground for disqualification arises only
`under subsection (a), waiver may be accepted pro-
`vided it is preceded by a full disclosure on the record
`of the basis for disqualification.
`(f) Notwithstanding the preceding provisions of
`this section, if any justice, judge, magistrate judge, or
`bankruptcy judge to whom a matter has been assigned
`would be disqualified, after substantial judicial time
`has been devoted to the matter, because of the appear-
`ance or discovery, after the matter was assigned to
`him or her, that he or she individually or as a fiduci-
`ary, or his or her spouse or minor child residing in his
`or her household, has a financial interest in a party
`(other than an interest that could be substantially af-
`fected by the outcome), disqualification is not required
`if the justice, judge, magistrate judge, bankruptcy
`judge, spouse or minor child, as the case may be, di-
`vests himself or herself of the interest that provides
`the grounds for the disqualification.
`
`
`35 U.S.C. § 315 (2000). Appeal
`
`(a) PATENT OWNER.—The patent owner involved
`in an inter partes reexamination proceeding under
`this chapter—
`(1) may appeal under the provisions of section
`134 and may appeal under the provisions of sec-
`tions 141 through 144, with respect to any deci-
`sion adverse to the patentability of any original or
`proposed amended or new claim of the patent; and
`
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`13a
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`(2) may be a party to any appeal taken by a
`third-party requester under subsection (b).
`(b) THIRD-PARTY REQUESTER.—A third-party re-
`quester may—
`(1) appeal under the provisions of section 134
`with respect to any final decision favorable to the
`patentability of any original or proposed amended
`or new claim of the patent; or
`(2) be a party to any appeal taken by the pa-
`tent owner under the provisions of section 134,
`subject to subsection (c).
`(c) CIVIL ACTION.—A third-party requester whose
`request for an inter partes reexamination results in
`an order under section 313 is estopped from asserting
`at a later time, in any civil action arising in whole or
`in part under section 1338 of title 28, United States
`Code, the invalidity of any claim finally determined to
`be valid and patentable on any ground which the
`third-party requester raised or could have raised dur-
`ing the inter partes reexamination proceedings. This
`subsection does not prevent the assertion of invalidity
`based on newly discovered prior art unavailable to the
`third-party requester and the Patent and Trademark
`Office at the time of the inter partes reexamination
`proceedings.
`
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`14a
`
`38 U.S.C. § 7101. Composition of Board of
`Veterans’ Appeals
`(a) There is in the Department a Board of Veter-
`ans’ Appeals (hereinafter in this chapter referred to as
`the ‘‘Board’’). The Board is under the administrative
`control and supervision of a chairman directly respon-
`sible to the Secretary. The Board shall consist of a
`Chairman, a Vice Chairman, and such number of
`members as may be found necessary in order to con-
`duct hearings and dispose of appeals properly before
`the Board in a timely manner. The Board shall have
`such other professional, administrative, clerical, and
`stenographic personnel as are necessary in conducting
`hearings and considering and disposing of appeals
`properly before the Board. The Board shall have suf-
`ficient personnel under the preceding sentence to en-
`able the Board to conduct hearings and consider and
`dispose of appeals properly before the Board in a
`timely manner.
`(b)(1) The Chairman shall be appointed by the
`President, by and with the advice and consent of the
`Senate, for a term of six years. The Chairman shall
`be subject to the same ethical and legal limitations
`and restrictions concerning involvement in political
`activities as apply to judges of the United States Court
`of Appeals for Veterans Claims.
`(2) The Chairman may be removed by the Presi-
`dent for misconduct, inefficiency, neglect of duty, or
`engaging in the practice of law or for physical or men-
`tal disability which, in the opinion of the President,
`prevents the proper execution of the Chairman’s du-
`ties. The Chairman may not be removed from office
`by the President on any other grounds. Any such re-
`moval may only be made after notice and opportunity
`for hearing.
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`15a
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`(3) The Chairman may be appointed under this
`subsection to more than one term. If, upon the expi-
`ration of the term of office for which the Chairman
`was appointed, the position of Chairman would be-
`come vacant, the individual serving as Chairman
`may, with the approval of the Secretary, continue to
`serve as Chairman until either appointed to another
`term or a successor is appointed, but not beyond the
`end of the Congress during which the term of office
`expired.
`(4) The Secretary shall designate one member of
`the Board as Vice Chairman. The Vice Chairman
`shall perform such functions as the Chairman may
`specify. Such member shall serve as Vice Chairman
`at the pleasure of the Secretary.
`*
`*
`*
`
`
`
`38 U.S.C. § 7101A. Members of Board: appoint-
`ment; pay; performance review
`(a)(1) The members of the Board of Veterans’ Ap-
`peals other than the Chairman (and including the
`Vice Chairman) shall be appointed by the Secretary,
`with the approval of the President, based upon recom-
`mendations of the Chairman.
`(2) Each member of the Board shall be a member
`in good standing of the bar of a State.
`*
`*
`*
`(e)(1) A member of the Board (other than the
`Chairman or a member of the Senior Executive Ser-
`vice) may be removed as a member of the Board by
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`16a
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`reason of job performance only as provided in subsec-
`tions (c) and (d). Such a member may be removed by
`the Secretary, upon the recommendation of the Chair-
`man, for any other reason as determined by the Sec-
`retary.
`(2) In the case of a removal of a member under this
`section for a reason other than job performance that
`would be covered by section 7521 of title 5 in the case
`of an administrative law judge, the removal of the
`member of the Board shall be carried out subject to
`the same requirements as apply to removal of an ad-
`ministrative law judge under that section. Section
`554(a)(2) of title 5 shall not apply to a removal action
`under this subsection. In such a removal action, a
`member shall have the rights set out in section
`7513(b) of that title.
`
`*
`
`*
`
`*
`
`
`
`38 U.S.C. § 7102. Assignment of members of
`Board
`(a) A proceeding instituted before the Board may
`be assigned to an individual member of the Board or
`to a panel of not less than three members of the Board.
`A member or panel assigned a proceeding shall make
`a determination thereon, including any motion filed in
`connection therewith. The member or panel, as the
`case may be, shall make a report under section
`7104(d) of this title on any such determination, which
`report shall constitute the final disposition of the pro-
`ceeding by the member or panel.
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`17a
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`(b) A proceeding may not be assigned to the Chair-
`man as an individual member. The Chairman may
`participate in a proceeding assigned to a panel or in a
`reconsideration assigned to a panel of members.
`
`
`38 U.S.C. § 7103. Reconsideration; correction of
`obvious errors
`(a) The decision of the Board determining a mat-
`ter under section 7102 of this title is final unless the
`Chairman orders reconsideration of the decision in ac-
`cordance with subsection (b). Such an order may be
`made on the Chairman’s initiative or upon motion of
`the claimant.
`(b)(1) Upon the order of the Chairman for recon-
`sideration of the decision in a case, the case shall be
`referred—
`(A) in the case of a matter originally decided
`by a single member of the Board, to a panel of not
`less than three members of the Board; or
`(B) in the case of a matter originally decided
`by a panel of members of the Board, to an en-
`larged panel of the Board.
`(2) A panel referred to in paragraph (1) may not
`include the member, or any member of the panel, that
`made the decision subject to reconsideration.
`(3) A panel reconsidering a case under this sub-
`section shall render its decision after reviewing the
`entire record before the Board. The decision of the
`panel shall be made by a majority vote of the members
`of the panel. The decision of the panel shall constitute
`the final decision of the Board.
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`18a
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`(c) The Board on its own motion may correct an
`obvious error in the record, without regard to whether
`there has been a motion or order for reconsideration.
`
`
`38 U.S.C. § 7104. Jurisdiction of the Board
`(a) All questions in a matter which under section
`511(a) of this title is subject to decision by the Secre-
`tary shall be subject to one review on appeal to the
`Secretary. Final decisions on such appeals shall be
`made by the Board. Decisions of the Board shall be
`based on the entire record in the proceeding and upon
`consideration of all evidence and material of record
`and applicable provisions of law and regulation.
`(b) Except as provided in section 5108 of this title,
`when a claim is disallowed by the Board, the claim
`may not thereafter be readjudicated and allowed and
`a claim based upon the same factual basis may not be
`considered.
`(c) The Board shall be bound in its decisions by the
`regulations of the Department, instructions of the
`Secretary, and the precedent opinions of the chief le-
`gal officer of the Department.
`(d) Each decision of the Board shall include—
`(1) a written statement of the Board’s findings
`and conclusions, and the reasons or bases for those
`findings and conclusions, on all material issues of
`fact and law presented on the record;
`(2) a general statement—
`(A) reflecting whether evidence was not
`considered in making the decision because the
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`19a
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`evidence was received at a time when not per-
`mitted under section 7113 of this title; and
`(B) noting such options as may be availa-
`ble for having the evidence considered by the
`Department; and
`(3) an order granting appropriate relief or
`denying relief.
`(e)(1) After reaching a decision on a case, the
`Board shall promptly mail a copy of its written deci-
`sion to the claimant at the last known address of the
`claimant.
`(2) If the claimant has an authorized representa-
`tive, the Board shall—
`(A) mail a copy of its written decision to the
`authorized representative at the last known ad-
`dress of the authorized representative; or
`(B) send a copy of its written decision to the
`authorized representative by any means reasona-
`bly likely to provide the authorized representative
`with a copy of the decision within the same time a
`copy would be expected to reach the authorized
`representative if sent by first-class mail.
`
`
`
`38 U.S.C. § 7111. Revision of decisions on
`grounds of clear and unmistakable error
`(a) A decision by the Board is subject to revision
`on the grounds of clear and unmistakable error. If ev-
`idence establishes the error, the prior decision shall
`be reversed or revised.
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`20a
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`(b) For the purposes of authorizing benefits, a rat-
`ing or other adjudicative decision of the Board that
`constitutes a reversal or revision of a prior decision of
`the Board on the grounds of clear and unmistakable
`error has the same effect as if the decision had been
`made on the date of the prior decision.
`(c) Review to determine whether clear and unmis-
`takable error exists in a case may be instituted by the
`Board on the Board’s own motion or upon request of
`the claimant.
`(d) A request for revision of a decision of the Board
`based on clear and unmistakable error may be made
`at any time after that decision is made.
`(e) Such a request shall be submitted directly to
`the Board and shall be decided by the Board on the
`merits.
`(f) A claim filed with the Secretary that requests
`reversal or revision of a previous Board decision due
`to clear and unmistakable error shall be considered to
`be a request to the Board under this section, and the
`Secretary shall promptly transmit any such request to
`the Board for its consideration under this section.
`
`
`38 U.S.C. § 7264.
`procedure
`(a) The proceedings of the Court of Appeals for
`Veterans Claims shall be conducted in accordance
`with such rules of practice and procedure as the Court
`prescribes.
`(b) The mailing of a pleading, decision, order, no-
`tice, or process in respect of proceedings before the
`
` Rules of practice and
`
`
`
`
`
`21a
`
`Court shall be held sufficient service of such pleading,
`decision, order, notice, or process if it is properly ad-
`dressed to the address furnished by the appellant on
`the notice of appeal filed under section 7266 of this
`title.
`(c) Section 455 of title 28 shall apply to judges and
`proceedings of the Court.
`
`
`38 U.S.C. § 7265. Contempt authority; assistance
`to the Court
`(a) The Court shall have power to punish by fine
`or imprisonment such contempt of its authority as—
`(1) misbehavior of any person in its presence
`or so near thereto as to obstruct the administra-
`tion of justice;
`(2) misbehavior of any of its officers in their
`official transactions; or
`(3) disobedience or resistance to its lawful
`writ, process, order, rule, decree, or command.
`(b) The Court shall have such assistance in the
`carrying out of its lawful writ, process, order, rule, de-
`cree, or command as is available to a court of the
`United States. The United States marshal for a dis-
`trict in which the Court is sitting shall, if requested
`by the chief judge of the Court, attend any session of
`the Court in that district.
`
`
`
`
`
`
`
`
`
`22a
`
`42 U.S.C. § 1316. Administrative and judicial
`review of public assistance determinations
`*
`*
`*
`(e) Disallowance of items covered under sub-
`chapter XIX
`(1) Whenever the Secretary determines that any
`item or class of items on account of which Federal fi-
`nancial participation is claimed under subchapter XIX
`shall be disallowed for such participation, the State
`shall be entitled to and upon request shall receive a
`reconsideration of the disallowance, provided that
`such request is made during the 60-day period that
`begins on the date the State receives notice of the dis-
`allowance.
`(2)(A) A State may appeal a disallowance of a
`claim for federal financial participation under sub-
`chapter XIX by the Secretary, or an unfavorable re-
`consideration of a disallowance, during the 60-day pe-
`riod that begins on the date the State receives notice
`of the disallowance or of the unfavorable reconsidera-
`tion, in whole or in part, to the Departmental Appeals
`Board, established in the Department of Health and
`Human Services (in this paragraph referred to as the
`‘‘Board’’), by filing a notice of appeal with the Board.
`(B) The Board shall consider a State’s appeal of a
`disallowance of such a claim (or of an unfavorable re-
`consideration of a disallowance) on the basis of such
`documentation as the State may submit and as the
`Board may require to support the final decision of the
`Board. In deciding whether to uphold a disallowance
`of such a claim or any portion thereof, the Board shall
`be bound by all applicable laws and regulations and
`shall conduct a thorough review of the issues, taking
`
`
`
`
`
`23a
`
`into account all relevant evidence. The Board’s deci-
`sion of an appeal under subparagraph (A) shall be the
`final decision of the Secretary and shall be subject to
`reconsideration by the Board only upon motion of ei-
`ther party filed during the 60-day period that begins
`on the date of the Board’s decision or to judicial review
`in accordance with subparagraph (C).
`(C) A State may obtain judicial review of a deci-
`sion of the Board by filing an action in any United
`States District Court located within the appealing
`State (or, if several States jointly appeal the disallow-
`ance of claims for Federal financial participation un-
`der section 1396b of this title, in any United States
`District Court that is located within any State that is
`a party to the appeal) or the United States District
`Court for the District of Columbia. Such an action
`may only be filed—
`(i) if no motion for reconsideration was filed
`within the 60-day period specified in subpara-
`graph (B), during such 60-day period; or
`(ii) if such a motion was filed within such pe-
`riod, during the 60-day period that begins on the
`date of the Board’s decision on such motion.
`
`
`
`
`
`24a
`
`37 C.F.R. § 41.52 Rehearing.
`(a)(1) Appellant may file a single request for re-
`hearing within two months of the date of the original
`decision of the Board. No request for rehearing from
`a decision on rehearing will be permitted, unless the
`rehearing decision so modified the original decision as
`to become, in effect, a new decision, and the Board
`states that a second request for rehearing would be
`permitted. The request for rehearing must state with
`particularity the points believed to have been misap-
`prehended or overlooked by the Board. Arguments
`not raised, and Evidence not previously relied upon,
`pursuant to §§ 41.37, 41.41, or 41.47 are not permitted
`in the request for rehearing except as permitted by
`paragraphs (a)(2) through (a)(4) of this section. When
`a request for rehearing is made, the Board shall ren-
`der a decision on the request for rehearing. The deci-
`sion on the request for rehearing is deemed to incor-
`porate the earlier opinion reflecting its decision for ap-
`peal, except for those portions specifically withdrawn
`on rehearing, and is final for the purpose of judicial
`review, except when noted otherwise in the decision
`on rehearing.
`(2) App
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