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"Members have flat-out said 'I can only give you x minutes because I am behind on my quota'."

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"There appears to be an expectation that the other members of the panel will review the case and correct the errors 'dumping'."

"You know the problem and try to live with it."

"The performance appraisal plan does not encourage extensive participation by No. 2, and in cases involving a conference between only No. 1 and No. 2, No. 3 receives no credit at all. It is not in No. 3's financial interest to spend any time on a case."

"This happens at the end of the year and sometimes before the mid-year review. "

"Colleagues have explicitly indicated that they could only spend limited time in conference due to the fact they were behind on their quota."

"Particularly at the end of the six and twelve month rating periods."

7. Have you ever felt constrained to not prepare a dissenting or concurring opinion because the existing quota system gives no "credit" for such opinions?

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"If I do not agree with a decision, I will dissent no matter what the consequences but sometimes feel constrained not to prepare a oncurring opinion if the majority opinion appears to be close enough."

"Concurring opinions will usually be adopted and incorporated into the majority opinion, just to cover themselves."

"The Administration does not want separate opinions, dissenting or concurring, and does not give time for them."

"Just count the dissenting and concurring opinions nowadays; they are virtually nonexistant. Typically, if I as No. 3 disagree with No. 1 and No. 2, I try to persuade them to change their mind to avoid writing a dissenting or concurring opinion, for which I receive no credit at all!"

"Absolutely. Due to time constraints, I now only write dissents in cases where I believe the majority's opinion is so erroneous that I would be derelict in my duty not to write one."

"There simply is no time for this. And the Chairman has expressed his displeasure in doing so.

"A proper and adequate dissent requires considerable consideration of entire record, i.e., time to prepare."

"I am at the point where I no longer write dissents because others complain it creates too much work to answer the dissent and consider the issues."

"Only address most obvious black-white disagreements and only if concerned with particular issue as significant."

"Dissents and concurring opinions take time for which no credit is given. They cut into an EIC's decision writing time."


Have you ever felt constrained to not remand a case because the existing quota system gives no "credit" for such remands?

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"Not only do we receive no credit but the Commissioner has made it known that such remands only delay the ultimate decision and unnecessarily add time to total pendency before the office."

"Primarily the Chairman is opposed to remands as it affects his count for the Board and his award."

"Once significant time is invested in a case as No. 1, all EICs are reluctant to remand and do so only when no other option is available."

"I am an inter parte EIC and interferences are not usually remanded to the examiner."

"Remands are a waste of time because examiners are not given any 'time' or 'credit' to prepare a response."

"Once you've spent enough time to determine that perhaps it should be remanded, you really try not to do so, because of pressure to produce numbers."

"I will not usually remand because I lose the count."

"Remands take time and are routinely avoided management does not permit .. search remand in any event, must send memo after deciding case to Chairman to go to Group Director."

"However, I know of other members who have tried their damnedest to keep cases that should clearly be remanded since they had put too much time into the case to lose the count."

"In many instances, the need for a remand does not become apparent until a significant amount of time has been consumed. At that point, I will seek ways to reach the merits."


Have you ever felt pressured to change your position in a case
to avoid writing a separate opinion for which there is no

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"Often the opinion I proposed ends up being the adopted one way, the original No. 1 does not lose a count, i.e. he will change before losing a count."

9 (a).

If yes, please provide an estimate of the number of cases in which you felt such pressure in the past three years.

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"This is a very insidious aspect of the performance/pay plan. We do not operate in an environment where all positions on an issue can be freely expressed."

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"The pressure was only ever applied when I was a new EIC before I had established my views with my fellow EICS."

"It is not that you compromise your principles as much as forcing an agreement."

"Interference cases."

"There is a temptation to switch sides and not give up the count if the second and third panel members go the other way."

"Simply not cost effective and highly detrimental under present system."

"In two of the three cases my separate position was proven correct by subsequent court decisions in other cases. The third is undecided."

"On relatively minor or secondary issues where main decisional point was key to the affirmance of reversal."

"If you spend several days on a case, you just can't afford to lose the counter. Therefore, you go with the flow."


With respect to opinions authored by another panel member and circulating for signature, have you ever felt pressured to sign such opinions rather than discuss concerns and issues with the author?

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"Members have said that they have spent all the time on that case that they are willing to (spend), that they are more concerned about the next case."

"Since last summer, when the problem was discussed in the Chairman's office, it became rather apparent, it became real apparent, that what went out was less of concern than that something in the form of a count went out."

"At the end of every month, you must sign and approve others' and get out your own at the same time. Yours is what you are rated on."

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