General Order 5.4: Rehearing En Banc

a. Duties of Clerk

Upon the filing by a party of a petition for rehearing en banc, the Clerk shall circulate a copy to each active judge and to those senior judges who have requested copies.

b. Request for Notice of Panel Vote on Petition for Panel Rehearing

and Time Within Which Judges Must Act After Notice

1. Request for Notice

An off-panel judge may request notice of the panel’s vote on a petition for panel rehearing and petition for rehearing en banc within 21 days of the circulation of the last-filed petition for rehearing en banc. In the absence of a timely request for notice, the panel may enter an order denying the petition for rehearing en banc and denying the petition for panel rehearing. (Rev. 9/17/14)

2. Circulation of Notice; Vote on Petitions; Proposed

Amendments

If a judge timely requests notice pursuant to G. O. 5.4.b.1, the panel shall circulate to all judges notice of its vote on the petitions for panel rehearing and rehearing en banc. If the panel decides to amend its opinion the panel shall notify all judges of its proposed amendments. The panel should respond as soon as possible to the G.O. 5.4b.1 request, but ordinarily within 90 days of the request or the petition for rehearing, whichever is later. (New 7/1/06)

A judge may withdraw a request for G.O. 5.4.b.1 notice by notifying the En Banc Coordinator in writing with copies to all judges. The time periods set forth in this Chapter shall be suspended for a period of 7 days following circulation of the notice to enable another judge to pursue en banc consideration. (New 10/26/21)

A judge must call for an en banc vote within: (1) 14 days of the date of the panel’s distribution of the G.O. 5.4b notice; (2) 21 days after the circulation of the last-filed petition for rehearing en banc; or (3) if a response to the petition for rehearing en banc has been requested, within 14 days after the circulation of the response, whichever is latest. (Rev. 7/1/02)

3. Procedure When Only a Petition for Panel Rehearing

is Filed

In a case where a party files only a petition for panel rehearing and no petition for rehearing en banc, an off-panel judge may call for en banc within the time limits set forth for sua sponte calls in G.O. 5.4.c.3. Any such call shall act as a request for notice of the panel’s vote on the petition for rehearing. Alternatively, an off-panel judge may expressly request notice of the panel’s vote on the petition for rehearing, but such a request must also be made within the time limits for sua sponte calls set forth in G.O. 5.4.c.3. The time to call for en banc shall expire 14 days after such notice.

c. En Banc Calls and Supplemental Briefing

1. En Banc Calls

Any judge may call for a vote to rehear a case en banc: (1) in response to notice of the panel's vote that a petition for rehearing en banc be denied and a petition for panel rehearing denied (see G.O. 5.4.b), or (2) sua sponte. The requesting judge shall notify the panel and all other members of the Court of any call, and shall forward a memorandum setting forth reasons: (1) within 14 days of the date of distribution of the call; (2) within 14 days after the circulation of the response to the petition for rehearing en banc; or (3) in the case of sua sponte calls, within 7 days after the circulation of the simultaneous briefing, whichever is latest. (Rev. 7/1/02)

2. Supplemental Briefing

When an en banc call is made in a case in which a party has petitioned for en banc consideration and in which no response to the petition has been previously filed, the author of the panel opinion or the Clerk of Court upon request of the En Banc Coordinator, shall ordinarily enter an order directing counsel to file within 21 days of the date of the order a response to the petition for rehearing en banc. The time provided by G.O. 5.5.a in which judges shall circulate memoranda will not start to run until the response is filed or the En Banc Coordinator determines that no response will be filed.

3. Sua Sponte Calls

A judge may sua sponte call for a vote on rehearing en banc within 7 days of the expiration of the time for filing a petition for panel rehearing or rehearing en banc. This means the sua sponte call must ordinarily be made within 21 days of the filing of the panel’s decision (or amended decision) in all cases, except civil cases in which the United States is a party. In such cases, the call must ordinarily be made within 52 days of the filing of the panel’s decision (or amended decision). See FRAP 40(d)(1). If the panel orders that no petitions for panel rehearing or rehearing en banc may be filed from the amended decision, the sua sponte call must be made within 7 days of the filing of the amended decision. When the panel grants a party an extension of time to file a petition for rehearing or rehearing en banc, the time to make a sua sponte call will extend for 7 days after the petition is due. If a judge makes a sua sponte en banc call when a party has filed a petition for rehearing and rehearing en banc, then the panel or the En Banc Coordinator will order a response to the petition for rehearing and rehearing en banc pursuant to G.O. 5.4.c.2 rather than ordering the parties to file simultaneous supplemental briefing. A judge may also call for en banc within 21 days of the filing of an order directing that a previously unpublished disposition be published. Upon receipt of a timely sua sponte en banc call, the author of the panel opinion or the Clerk of Court upon the request of the En Banc Coordinator shall ordinarily enter an order directing the parties to file simultaneous briefs within 21 days setting forth their respective positions on whether the matter should be reheard en banc. If the En Banc Coordinator orders that no supplemental briefing will be filed, the parties will be notified of the sua sponte en banc call. (Rev. 7/1/02; 10/4/06; 9/17/14; 12/1/24)

4. Withdrawal of En Banc Calls

A judge may withdraw an en banc call by notifying the En Banc Coordinator in writing with copies to all judges. The time periods set forth in this Chapter shall be suspended for a period of 7 days following circulation of the notice to enable another judge to pursue en banc consideration. (New 7/1/02; Rev. 10/26/21)