6 Cir. I.O.P. 40: Petitions for Rehearing
Rules and Internal Operating Procedures of the Sixth Circuit — Title VII. General Provisions
(a) Panel Rehearing
(1) When Necessary.
(A) Purpose. The purpose of a petition for panel rehearing is to bring a claimed error of fact or law in the opinion to the panel’s attention. It is not to be used for re-argument of issues previously presented.
(B) Not a Prerequisite to Supreme Court Filing. A party is not required to petition for rehearing—with or without a petition for rehearing en banc—as a prerequisite to a petition for a writ of certiorari in the Supreme Court of the United States.
(2) Review. Only the original panel members will review petitions for panel rehearing that are unaccompanied by a petition for rehearing en banc.
(3) Briefing, Reargument, and Disposition. If a petition for panel rehearing is granted, the court will usually make a final disposition without additional briefing or reargument.
(4) Extension of Time or Leave to File Out-of-Time. The court will refer a motion for additional time to file a petition for panel rehearing or for permission to file out of time to the original panel members. Counsel should not presume that the motion will be granted.
(b) Rehearing En Banc
(1) Extraordinary Nature of Petition for Rehearing En Banc. A petition for rehearing en banc is an extraordinary request intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent.
Counsel fully discharges his or her duty in a case without filing a petition for rehearing en banc unless the case meets the rigid standards of Fed. R. App. P. 40(b)(2). Alleged errors in the determination of state law or in the facts of the case (including sufficient evidence), or errors in the application of correct precedent to the facts of the case, are matters for panel rehearing but not for rehearing en banc.
(2) Voting to Sit En Banc. Only Sixth Circuit judges in regular active service who have not recused themselves from the case may vote in a poll on an en banc petition.
See 28 U.S.C. § 46(c).
(3) Composition of En Banc Court. The en banc court is composed of all judges in regular active service at the time of a hearing or rehearing, any senior judge of the court who sat on the original panel, and, if no oral argument en banc is held, any judge in regular active service at the time that the en banc court agreed to decide the case without oral argument.
(4) General Procedure.
(A) A petition for rehearing en banc will first be treated as a petition for rehearing before the original panel. The original panel has 14 days to submit comments on the petition to the clerk.
(1) If the panel changes the substance of its decision, it will provide its modified decision to the clerk. The modified decision will be filed and counsel notified. Counsel will then have 14 days to withdraw, modify, or maintain the pending petition for rehearing en banc or to file a new petition.
(2) If the panel does not substantially modify its decision, the clerk will then circulate the petition and the panel’s comments to the en banc court.
(B) Any active judge or any member of the panel whose decision is the subject of the rehearing petition may request a poll. If a poll is requested, 14 days are allowed for voting. Voting on a poll will not commence until a response to the petition has been requested and filed.
(5) When a Poll Can Be Requested.
(A) Poll After Petition is Filed. Any active judge or any member of the original hearing panel whose decision is under review may request a poll within 14 days from the date of circulation of the petition and the panel’s comments.
(B) Sua Sponte Poll. Notwithstanding subsection (A), any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition. Following a request for a sua sponte poll, the clerk will immediately circulate voting forms to the en banc court.
(6) Response to Petition. When a poll is requested, or if a judge requests a response, the clerk will ask for a response to the petition if none has been previously requested.