Rule 70 - Judges Sitting En BancA. Grounds for Consideration En Banc. A majority of the administrative law judges may order that a matter of law be considered by all the judges sitting en banc where (1) consideration by all the judges is necessary to serve or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance and public concern.B. Quorum and Presiding Judge. When the administrative law judges sit en banc, a majority of the judges constitutes a quorum. A concurrence of a majority of the judges sitting is necessary for a decision. The Chief Administrative Law Judge shall preside at all en banc proceedings and in his absence, the administrative law judge next senior in service and who is present shall preside.C. Petition for Consideration En Banc. No later than forty-five (45) days after the assignment of a case by the Chief Administrative Law Judge to an administrative law judge, a party may suggest the appropriateness of consideration of a matter en banc by filing a petition with the clerk of the Court. No response to the petition shall be required unless ordered by the assigned judge or by a majority of the judges. The presiding administrative law judge in a case may also request en banc consideration at any time during the proceedings. After receipt of the petition or request, the clerk will immediately circulate to the administrative law judges a vote sheet with the petition seeking an en banc hearing attached. No vote of the judges need be taken to determine whether the cause should be heard en banc unless a judge, within ten (10) days of receipt of the vote sheet, notifies the clerk in writing of his request for a vote of the judges on the suggestion. If no poll is requested, the Chief Administrative Law Judge will issue an order which bears the notation that no judge requested a poll. If a poll is requested and the hearing en banc is granted or denied, the Chief Administrative Law Judge will issue an order reflecting the decision.D. Procedure. En banc consideration in an individual case is limited to only the particular issue(s) of law which meet the criteria set forth in paragraph A of this Rule 70. Upon a majority of the administrative law judges ordering a matter to be considered by the judges sitting en banc, notice will be given to the parties of the issue(s) under consideration. The parties may be required to file briefs and may be allowed to present oral argument on the issue(s). After the hearing, the Chief Administrative Law Judge will assign the authorship responsibility for the opinion.E. En Banc Consideration Interlocutory. En banc consideration of a matter of law in a contested case or appellate case is an interlocutory measure. It is dispositive of the limited issue(s) addressed, but the decision is not final and conclusive until all factual issues and remaining legal issues in the contested case, or all issues in the appellate case, are resolved by the final order of the administrative law judge assigned to preside over the hearing in the case. Parties have no direct right of appeal from an en banc decision. Any appeal must follow the issuance of the final order on the merits of the case.F. Effect of an En Banc Order. The issue(s) addressed in en banc decisions by the administrative law judges are binding upon all individual administrative law judges in all subsequent cases, unless a majority of the judges determine otherwise. S.C. R. P. Admin. Law. Ct. 70
2009 Revised Notes
Rule 70 provides a procedure for en banc consideration of a matter of law in specified circumstances. If an issue in a case before the Court is considered en banc, that consideration must occur prior to the contested case or appeal hearing on the merits by the assigned administrative law judge. En banc consideration does not replace the contested case or appeals hearing before the administrative law judge. An en banc proceeding is not an evidentiary hearing and the administrative law judges sitting en banc cannot make findings of fact. After the judges sitting en banc render their decision, the assigned administrative law judge assigned to the case must conduct all further proceedings and render all further orders necessary in the matter.