The court's Discretionary Panel is used whenever counsel is appointed after a judicial determination that appointment of counsel is in the interests of justice or would aid in resolution of the appeal. The court exercises its discretionary authority under 18 U.S.C. § 3006A (CJA counsel), 28 U.S.C. § 1915(e)(1) (IFP counsel), and the provisions for amicus participation (amicus counsel). The court's appointment and assignment procedures are described in Local Rule 46(d).
Discretionary CJA Appointments
After a judicial determination that the interests of justice require legal representation in an ancillary criminal matter, habeas corpus, or section 2255 appeal in which there is not a right to counsel, a discretionary CJA appointment is made from the court's Discretionary Panel. 18 U.S.C. § 3006A(a)(2); Local Rule 46(d).
Discretionary IFP Assignments
After a judicial determination that "further briefing and possible oral argument would be of assistance" in an indigent pro se appeal in a civil, civil rights, agency, tax, or bankruptcy case, a discretionary IFP assignment is made from the court's Discretionary Panel. 28 U.S.C. § 1915(e); Local Rule 34(b); Local Rule 46(d).
Discretionary Amicus Assignments
After a judicial determination that "further briefing and possible oral argument would be of assistance" in a case in which the pro se party is not indigent or in which the parties have not presented both sides of an issue, a discretionary amicus curiae assignment is made from the court's Discretionary Panel.
Attorneys must be admitted to practice in the Fourth Circuit to serve on the Discretionary Panel. Counsel should have appellate practice experience and the ability to brief and argue cases on appeal, since most discretionary appointment cases proceed to oral argument.
Third-Year Practice Rule
The Discretionary Panel is a particularly good fit for law school clinical programs. Local Rule 46(a) authorizes a third-year law student, in combination with a supervising attorney who is a member of the court's bar, to provide representation to indigent litigants with the written consent of the litigant and upon a showing that the student is enrolled in law school, has completed at least four semesters of legal studies, has been certified by the dean as being of good character and competent legal ability, and is familiar with the Rules of Professional Conduct in force in the state in which the law school is located.
Attorneys and law school clinical programs interested in serving on the Discretionary Panel should send a cover letter and resume to Robert Jaspen, Senior Staff Counsel, 600 East Main Street, Suite 2200, Richmond, Virginia 23219-2441.
Appointment and Assignment
The Senior Staff Counsel appoints and assigns counsel in rotation from the Discretionary Panel. Discretionary appointments and assignments are made in only a handful of cases per year.