IOP § IV(D): Petitions for Rehearing by Panel; Petitions for Rehearing En Banc
Rules of Appellate Procedure and Internal Operating Procedures of the Eighth Circuit — Internal Operating Procedures: IV. Deciding the Appeal
Petitions for rehearing are not favored by the court and are granted infrequently. Petitions for rehearing en banc require a substantial expenditure of time by judges who have not participated in the case, as well as by the hearing panel, and should be reserved for cases necessary to maintain and secure the uniformity of decisions or that raise questions of exceptional importance. See FRAP 35. Petitions in support of rehearing filed by amicus curiae are governed by FRAP 29(b).
The issue of whether a case should be reheard en banc is separate and distinct from the issue of whether the case should be reheard by the panel. A panel may rehear a case if it questions whether its decision was correct. The court may rehear a case en banc if the case “is of such significance to the full court that it deserves the attention of the full court.” Western Pac. Ry. Corp. v. Western Pac. Ry. Co., 345 U.S. 247, 262-63 (1953). Requirements and procedures for seeking rehearing by a panel and rehearing en banc are contained in FRAP 35 and 40; and 8th Cir. R. 35A and 40A.
When a petition for rehearing en banc is filed, a copy is distributed to each judge on the panel and to every active judge on the court who is not disqualified in that particular case. A judge who has taken senior status does not participate in the vote to determine whether to grant an en banc rehearing petition. If rehearing en banc is granted, any senior judge who participated in the three-judge panel may elect to participate on the en banc panel. A petition for rehearing en banc does not remove the case from the plenary control of the panel deciding the case. The panel may grant rehearing without action by the full court.
The court strictly enforces the fourteen-day deadline FRAP 40(a) establishes. There is no mailing grace period. Extensions of time to file a petition must be filed before the deadline. By local rule, the clerk may grant a motion for an extension of time not to exceed fourteen days. 8th Cir. R. 27A(a)(15). Requests for extensions of time to file a petition for rehearing in excess of fourteen days will be referred to the court. The judges have two weeks to review the petition and request a poll or a response. Unless a judge requests a poll or otherwise indicates the petition for rehearing en banc deserves more consideration, the clerk automatically enters an order denying petitions for rehearing twenty-one days after circulation to the court. If a poll is requested on a petition for rehearing en banc, each active judge casts a vote. When a poll is requested, the clerk’s office will request the opposing party file a response to the petition for rehearing. No response is permitted absent the court’s request. See FRAP 35(e). A rehearing en banc is granted if a majority of judges in regular active service and who are not disqualified vote affirmatively.
On their own motion, active judges or any senior judge who sat on the three-judge panel may also request a poll for rehearing en banc within the same time limit fixed for the filing of petitions for rehearing by the parties.
The court may assess costs against counsel who files a frivolous petition for rehearing en banc deemed to have multiplied the proceedings in the case and to have increased the costs unreasonably and vexatiously. See 8th Cir. R. 35A(2).