Rule 40 — Panel Rehearing; En Banc Determination

Fed. R. App. P. 40

• Source: Federal Rules of Appellate Procedure
• Rule: 40
• TITLE VII: GENERAL PROVISIONS
• Citation: Fed. R. App. P. 40

Text

(a) A Party’s Options. A party may seek rehearing of a decision
through a petition for panel rehearing, a petition for rehearing en

banc, or both. Unless a local rule provides otherwise, a party seek-
ing both forms of rehearing must file the petitions as a single doc-
ument. Panel rehearing is the ordinary means of reconsidering a
panel decision; rehearing en banc is not favored.
(b) Content of a Petition.
(1) Petition for Panel Rehearing. A petition for panel rehear-
ing must:
(A) state with particularity each point of law or fact
that the petitioner believes the court has overlooked or
misapprehended; and
(B) argue in support of the petition.
(2) Petition for Rehearing En Banc. A petition for rehearing
en banc must begin with a statement that:
(A) the panel decision conflicts with a decision of the
court to which the petition is addressed (with citation to
the conflicting case or cases) and the full court’s consider-
ation is therefore necessary to secure or maintain uni-
formity of the court’s decisions;
(B) the panel decision conflicts with a decision of the
United States Supreme Court (with citation to the con-
flicting case or cases);
(C) the panel decision conflicts with an authoritative de-
cision of another United States court of appeals (with cita-
tion to the conflicting case or cases); or
(D) the proceeding involves one or more questions of ex-
ceptional importance, each concisely stated.
(c) When Rehearing En Banc May Be Ordered. On their own or
in response to a party’s petition, a majority of the circuit judges
who are in regular active service and who are not disqualified may
order that an appeal or other proceeding be reheard en banc. Un-
less a judge calls for a vote, a vote need not be taken to determine
whether the case will be so reheard. Rehearing en banc is not fa-
vored and ordinarily will be allowed only if one of the criteria in
Rule 40(b)(2)(A)–(D) is met.
(d) Time to File; Form; Length; Response; Oral Argument.
(1) Time. Unless the time is shortened or extended by order
or local rule, any petition for panel rehearing or rehearing en
banc must be filed within 14 days after judgment is entered—
or, if the panel later amends its decision (on rehearing or
otherwise), within 14 days after the amended decision is en-
tered. But in a civil case, unless an order shortens or extends
the time, the petition may be filed by any party within 45 days
after entry of judgment or of an amended decision if one of the
parties is:
(A) the United States;
(B) a United States agency;
(C) a United States officer or employee sued in an offi-
cial capacity; or
(D) a current or former United States officer or em-
ployee sued in an individual capacity for an act or omis-
sion occurring in connection with duties performed on the
United States’ behalf—including all instances in which the
United States represents that person when the court of ap-
peals’ judgment is entered or files that person’s petition.

(2) Form of the Petition. The petition must comply in form
with Rule 32. Copies must be filed and served as Rule 31 pre-
scribes, except that the number of filed copies may be pre-
scribed by local rule or altered by order in a particular case.
(3) Length. Unless the court or a local rule allows otherwise,
the petition (or a single document containing a petition for
panel rehearing and a petition for rehearing en banc) must not
exceed:
(A) 3,900 words if produced using a computer; or
(B) 15 pages if handwritten or typewritten.
(4) Response. Unless the court so requests, no response to the
petition is permitted. Ordinarily, the petition will not be
granted without such a request. If a response is requested, the
requirements of Rule 40(d)(2)–(3) apply to the response.
(5) Oral Argument. Oral argument on whether to grant the
petition is not permitted.
(e) If a Petition Is Granted. If a petition for panel rehearing or
rehearing en banc is granted, the court may:
(1) dispose of the case without further briefing or argument;
(2) order additional briefing or argument; or
(3) issue any other appropriate order.
(f) Panel’s Authority After a Petition for Rehearing En Banc. The
filing of a petition for rehearing en banc does not limit the panel’s
authority to take action described in Rule 40(e).
(g) Initial Hearing En Banc. On its own or in response to a par-
ty’s petition, a court may hear an appeal or other proceeding ini-
tially en banc. A party’s petition must be filed no later than the
date when its principal brief is due. The provisions of Rule 40(b)(2),
(c), and (d)(2)–(5) apply to an initial hearing en banc. But initial
hearing en banc is not favored and ordinarily will not be ordered.

Advisory Committee Notes

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27, 2020, eff. Dec. 1, 2020; Apr. 2, 2024, eff. Dec. 1, 2024.)