Interpanel Accord: An Important Concept for Civil Litigants in the New Court of Appeals of Virginia

The term “interpanel accord” has increased importance in Virginia civil state court practice after the General Assembly recently expanded the size and scope of the Court of Appeals of Virginia. More information about the expansion can be found here. Previously when a civil litigant lost in a Virginia circuit court, except in limited instances, it had to petition the Supreme Court of Virginia to appeal the decision and hope that the Supreme Court would grant the case for full argument. Now, when a civil party seeks to challenge a circuit court decision, it may appeal to the Court of Appeals of Virginia and have it heard in full as a matter of right.

While at the Supreme Court, granted cases are heard by the entire court in Richmond, in the Court of Appeals of Virginia, cases are generally heard by three-judge panels at numerous locations across the Commonwealth.

Thus, only a small fraction of the entire Court of Appeals renders a binding decision on behalf of the entire court. And because different groups of three judges are deciding cases all over the Commonwealth, there is the logical concern of inconsistent decisions between the various panels leading to uncertainty as to what exactly is the leading interpretation of a point of law in a statewide court. The doctrine of interpanel accord addresses this concern. Under this doctrine, a decision made by a Court of Appeals 3-judge panel is generally treated as precedent of the entire Court of Appeals and cannot be overruled except by the Court of Appeals sitting en banc or by the Supreme Court of Virginia. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 74 (2003). Thus, a party seeking to challenge a Court of Appeals precedent may have to lose before the three-judge panel of the Court of Appeals and hope that the Court of Appeals will agree to hear the case en banc and/or that the Supreme Court will hear the case.

It is also important to note that judges that make up those panels change each session. Judges are not assigned to a particular panel or geographic area each time—judges may sit at any panel in the state with any other group of judges. The fact that the panels change from session to session logically is consistent with the concept of the entire Court of Appeals speaking through its panels by mitigating the risk that a panel in one part of the state consistently follows one interpretation of law, while a panel in another part of the state follows another. The fact that there is no set Eastern Virginia panel or Western Virginia panel, for example, would seem to encourage an approach that there is one Court of Appeals that speaks with one precedent through its panels.

The Court of Appeals may sit en banc (with 13 or more judges) either (i) when there is a dissent to the three-judge panel decision and the aggrieved party requests an en banc hearing and at least six judges agree or (ii) when a judge on the panel certifies that in his or her opinion, a decision of the panel is in conflict with a prior decision of the court and five other judges agree with that opinion. To overturn a panel decision via an en banc decision, the concurrence of at least a majority of the sitting judges is required. Va. Code §§ 17.1-402 (D), (E). Thus, the en banc procedure in part is designed to address situations where there are concerns about conflicts amongst the various panel decisions and provides another safeguard against this potential problem.

Given the expansion of the size and scope of the Court of Appeals, it is important to understand the mechanisms of the interpanel accord doctrine when deciding whether to appeal a case, crafting arguments on appeal, and in navigating the appellate process.