Circuit Rule 40: Petitions for Rehearing

(a) Table of Contents. The petition for rehearing shall include a table of contents with page references and a table of cases (alphabetically arranged), statutes and other authorities cited, with reference to the pages of the brief where they are cited.

(b) Number of Copies. Ten copies of a petition for rehearing shall be filed, except that fifteen shall be filed if the petitioner suggests rehearing en banc.

(c) Time for Filing After Decision in Agency Case. The date on which this court enters a final order or files a dispositive opinion is the date of the “entry of judgment” for the purpose of commencing the period for filing a petition for rehearing in accordance with Fed. R. App. P. 40, notwithstanding the fact that a formal detailed judgment is entered at a later date.

(d) Time for Filing after Decision from the Bench. The time limit for filing a petition for rehearing shall run from the date of this court’s written order following a decision from the bench.

(e) Rehearing Sua Sponte before Decision. A proposed opinion approved by a panel of this court adopting a position which would overrule a prior decision of this court or create a conflict between or among circuits shall not be published unless it is first circulated among the active members of this court and a majority of them do not vote to rehear en banc the issue of whether the position should be adopted. In the discretion of the panel, a proposed opinion which would establish a new rule or procedure may be similarly circulated before it is issued. When the position is adopted by the panel after compliance with this procedure, the opinion, when published, shall contain a footnote worded, depending on the circumstances, in substance as follows:

This opinion has been circulated among all judges of this court in regular active service. (No judge favored, or, A majority did not favor) a rehearing en banc on the question of (e.g., overruling Doe v. Roe.)