IOP 12: Petitions for Panel Rehearing

In accordance with Fed. R. App. P. 26(a)(1), which states that its provisions apply in computing any period of time specified in a local rule, one must “[e]xclude the day of the act, event, or default that begins the period.” Thus, for example, when a voting deadline is seven working days in this IOP, the day that the clerk distributes the petition is excluded from the seven-day count.

1. Distribution of Petition.

(a) Unless a petition expressly asks for en banc action, it will be deemed to request only rehearing by the panel. Petitions for rehearing en banc and combined petitions for panel rehearing and for rehearing en banc are first processed as petitions under this IOP and thereafter may be processed under IOP #14.

(b) Promptly on receipt, the clerk will distribute the petition for rehearing to the merits panel members with a petition for panel rehearing vote sheet. The voting deadline will be ten working days following distribution of the petition.

2. Voting.

(a) Panel members who desire no action on a petition need do nothing.

(b) If the clerk does not receive a form from a panel member by the day following the deadline, that panel member will be deemed to have voted to deny the petition.

(c) A panel member desiring action on the petition will so indicate on the petition for panel rehearing vote sheet and send it to the clerk. Copies of the marked form will be sent to the other panel members, with an attached memorandum of reasons if desired.

3. Orders.

(a) On the day following the deadline, if the vote of the panel is to deny the petition, the clerk will forthwith prepare and issue an order if en banc action is not requested, but if en banc action is requested, the panel order denying the petition will be withheld and entered in a consolidated order disposing of the petition for rehearing en banc.

(b) In preparing an order granting the petition, the clerk will include the action specified by the panel (oral argument; additional briefing; modification of opinion; etc.). If oral argument is ordered, the clerk will notify the chief judge. If modification of the opinion is desired, the author of the original opinion will supply the clerk with an appropriate order.

4. Responses.

(a) When a panel wishes to grant a petition (other than to make mere language changes without change in result) the clerk will invite a response from the non-petitioning parties and will not issue the order granting the petition until ten working days following distribution of a response. The response will be distributed with a new petition for panel rehearing vote sheet with a voting deadline of ten working days following distribution of the response. During the period following distribution of a response, a judge may change his or her earlier vote to grant by distributing a memo to the other panel members and the clerk. Judges who have not voted, and who continue after receipt of a response to favor denial, need do nothing. If the invitation to respond is declined, the clerk will issue the order granting the petition.

(b) A judge may, before the original voting deadline, direct the clerk to request a response, notifying the other panel members by a copy of his or her petition for panel rehearing vote sheet. The original voting deadline is stayed pending receipt of the response. A new voting deadline, ten working days after the clerk distributes the response, will appear on the new petition for panel rehearing vote sheet accompanying the response. If the party declines to file a response, the new date shall be seven working days after the clerk distributes a routing slip indicating no response will be filed.

5. In General.

(a) When a judge votes to grant a petition “only to make language changes attached,” the clerk will withhold issuance of an order for seven additional working days, to enable other merits panel members to review those changes.

Absent contrary notice on a petition for panel rehearing vote sheet, the clerk will issue the order making the changes attached.

(b) When a panel’s action on a petition is limited to changes in the language of an original precedential opinion (without change in the result) but the panel deems the changes major substantive changes, the petition for panel rehearing vote sheet, any revised opinion reflecting the changes, and any accompanying order addressing the rehearing request will be circulated to the court under the same process set forth in IOP #10(5). If the original precedential opinion was accompanied by a concurring or dissenting opinion, the authoring judge will communicate those changes to the panel before circulation and the dissenting or concurring judge will promptly (1) notify the panel that no change will be made in the dissent or concurrence; or (2) communicate to the panel any changes deemed necessary to the original dissent or concurrence that should be circulated along with the revised opinion to the court.

(c) When a senior judge of this court or a visiting judge served on the panel, that judge will participate in consideration and disposition of a petition. The clerk will send two copies of the petition for panel rehearing vote sheet to a visiting judge who authored the panel’s original opinion.

(d) If the panel’s action on the petition involves substitution of a precedential for an original nonprecedential opinion, the substituted opinion will be circulated to the court.