Rehearing and Rehearing En Banc
Two petitions travel in the same envelope and ask for entirely different things, of different audiences, under different standards. Confusing them wastes the only chance a party has to be heard again by the court that just decided against it.
The rule in short
Federal Rule of Appellate Procedure 40 allows a petition for panel rehearing stating with particularity each point of law or fact the petitioner believes the court overlooked or misapprehended. Rule 35 governs rehearing en banc, which is not favored and is ordered only where necessary to secure or maintain uniformity of the court's decisions or where the proceeding involves a question of exceptional importance. Rule 41 controls when the mandate issues and how it may be stayed.
A federal appeal is normally decided by a panel of three judges. Two mechanisms allow a party to ask for more. A petition for panel rehearing asks the same three judges to reconsider. A petition for rehearing en banc asks the full court to take the case away from them. The two are frequently filed together and are governed by different rules and different standards.
What each petition actually asks for
Panel rehearing is a correction device. Rule 40 requires the petition to state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended, and to argue in support. It is not an occasion to reargue what the panel considered and rejected, and petitions that do so are denied without comment.
Rehearing en banc is an institutional device. Rule 35 states that an en banc hearing or rehearing is not favored and ordinarily will not be ordered unless it is necessary to secure or maintain uniformity of the court's decisions, or the proceeding involves a question of exceptional importance. The concern is the coherence of circuit law rather than the correctness of one outcome.
The petition to the panel
The time to file is short. In a civil case where the United States is not a party, a petition is due within fourteen days after entry of judgment, and the period is extended where the United States, a federal agency, or a federal officer or employee sued in an official capacity is a party. The court may shorten or extend the time by order.
No answer is permitted unless the court requests one, and the rule states that rehearing ordinarily will not be granted without a requested answer. If rehearing is granted, the panel may make a final disposition without reargument, may restore the case to the calendar, or may issue any other appropriate order. In practice most grants produce a revised opinion rather than a new hearing.
The most useful petitions are narrow. A demonstrable factual error in the opinion, a misreading of the record, an issue briefed but not addressed, or a holding that reaches further than the parties argued are the categories that occasionally succeed. A petition arguing that the panel weighed the evidence wrongly is not one of them.
Rule 35(b)(1) requires a petition for rehearing en banc to begin with a statement that either the panel decision conflicts with a decision of the Supreme Court or of the court to which the petition is addressed, and that consideration by the full court is necessary to secure and maintain uniformity, or that the proceeding involves one or more questions of exceptional importance, each concisely stated. Petitions that open with a summary of the facts instead of that statement are routinely denied, and some circuits treat the omission as a defect in form.
The petition to the full court
The vote required is a majority of the circuit judges who are in regular active service and who are not disqualified. Senior judges generally do not vote on whether to rehear, though a senior judge who sat on the original panel may participate in the rehearing itself where the rule allows. In the largest circuits a limited en banc court sits in place of all active judges.
The conflict ground requires an actual inconsistency between decisions of the same court, not a decision the petitioner considers wrong. Where a panel decision cannot be reconciled with an earlier published decision of the circuit, the point is well made, because a panel generally cannot overrule circuit precedent and only the full court can resolve the inconsistency.
Exceptional importance is harder to establish. The strongest showings identify a recurring question affecting many cases, a conflict with another circuit that the court may wish to address, or a holding with consequences beyond the parties. A statement that the case is important to the petitioner is not a statement of exceptional importance.
| Feature | Panel rehearing | Rehearing en banc | Stay of the mandate |
|---|---|---|---|
| Rule | Rule 40 | Rule 35 | Rule 41 |
| What is asked | Correction of an overlooked point | Reconsideration by the full court | Delay in the decision taking effect |
| Who decides | The three-judge panel | Majority of active circuit judges | The panel or the court |
| Standard | Point overlooked or misapprehended | Conflict or exceptional importance | Substantial question and good cause |
| Response | Only if the court requests one | Only if the court requests one | Ordinary motion practice |
| Usual outcome | Denial, sometimes a revised opinion | Denial, occasionally with dissent | Granted where further review is likely |
When the decision takes effect
Rule 41 governs the mandate, which is the document that returns jurisdiction to the district court and makes the appellate decision operative. The mandate issues a set number of days after the time to file a petition for rehearing expires, or after entry of an order denying a timely petition, whichever is later. Until it issues, the court of appeals retains control of the case.
A party seeking review in a higher court may move to stay the mandate. The motion must show that the petition would present a substantial question and that there is good cause for a stay. Where the mandate has already issued, the remedy is a motion to recall it, which courts grant only in extraordinary circumstances.
Where the petitions sit in the sequence
Neither petition is a second appeal, and neither reopens the record. Both are decided on what was already submitted under the brief requirements and the argument section they prescribe, and a petition that introduces a new theory is treated as raising a forfeited point.
For most parties the practical value lies downstream. A timely petition preserves the issue and fixes the date from which further review is measured, and the reasoning in a dissent from denial of rehearing en banc is often the material a later petition relies on. That next stage is governed by the discretionary review a higher court may grant. Where the panel decided without hearing from counsel, the reasons are found in the criteria for allotting and dispensing with argument.
Points to carry away
- A panel rehearing petition must identify what the panel overlooked or misapprehended.
- En banc rehearing requires a conflict in the court's decisions or exceptional importance.
- A petition for rehearing en banc must open with the statement the rule prescribes.
- A majority of the circuit judges in regular active service must vote to rehear en banc.
- No answer to a petition is filed unless the court requests one.
- A timely petition delays issuance of the mandate until it is resolved.
Questions readers ask
Does filing a petition stop the decision from taking effect?
It delays the mandate. Rule 41 provides that the mandate issues a set number of days after the time to file a petition for rehearing expires, or after entry of an order denying a timely petition, whichever is later. Until the mandate issues, the court of appeals retains control of the case and the district court cannot proceed on the decision. That is different from a stay: a party who wants the mandate held while it seeks review in a higher court must move separately under the rule.
Is a response filed to a petition for rehearing?
Only if the court asks for one. Rule 40 provides that unless the court requests, no answer to a petition for panel rehearing is permitted, and that ordinarily rehearing will not be granted unless an answer has been requested. That structure means a request for a response is meaningful information: it signals that at least one judge is taking the petition seriously. A party that files an unsolicited answer is usually told to withdraw it, and the filing may be stricken.
How often is en banc rehearing granted?
Rarely, and the rules say so in terms. Rule 35 states that an en banc hearing or rehearing is not favored and ordinarily will not be ordered unless the case meets one of the two stated conditions. Circuits differ in practice, but every one of them rehears a small fraction of the petitions filed, and the largest circuits use a limited en banc court rather than sitting all judges. The realistic function of most petitions is to preserve the issue for the next stage.
Sources
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 35, En Banc DeterminationThe disfavored standard, the required opening statement and the vote needed.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 40, Petition for Panel RehearingTime to file, content, the answer requirement and the panel's options on granting.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 41, MandateWhen the mandate issues, how a petition affects it, and staying it pending further review.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 32, Form of Briefs and PapersThe form requirements and word limit applying to a petition.
- Cornell Legal Information Institute — 28 U.S.C. 1254, Courts of Appeals CertiorariThe route that follows an unsuccessful petition in the court of appeals.
- United States Courts — AppealsThe description of panel decision-making and the exceptional nature of en banc review.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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