I.O.P. 9.5: Rehearing En banc on Petition by Party
Local Appellate Rules and Internal Operating Procedures of the Third Circuit — I.O.P. Chapter 9. En Banc Consideration
9.5.1 It is presumed that a petition for rehearing before the panel or suggestion for en banc rehearing filed by a party as provided by Fed.R.App.P. 40(a) or 35(b) requests both panel rehearing and rehearing en banc, unless the petition for panel rehearing under Rule 40(a) states explicitly that it does not request en banc rehearing under Rule 35(b).
9.5.2 When a petition for rehearing is filed, a copy of the petition is transmitted by the clerk to each member of the panel which heard and decided the case and to the other active judges of the court with a request that they respond to the authoring judge if they desire rehearing or an answer. When the author is not a member of the court, the clerk requests that responses be directed to the ranking judge of the majority. Any member of the panel majority may direct the clerk to request an answer.
9.5.3 Pursuant to 28 U.S.C. Section 46(c), only active judges of this court may vote for rehearing en banc. Therefore, rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified.
9.5.4 An active judge who does not communicate with the authoring judge concerning rehearing within 10 calendar days after the date of the clerk's letter transmitting the petition for rehearing is presumed not to desire rehearing en banc or that an answer be filed. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.5 If, during the 10 day period for circulation of petitions for rehearing, one judge has timely voted for rehearing, another judge may obtain an extension of time to consider en banc rehearing by circulating a letter asking that the time for voting be extended for a period not to exceed 5 working days beyond the 10 day time period. This request results in an automatic extension. Irrespective of the number of such requests, the voting time automatically is extended this one period only, unless the chief judge, upon application, grants a further extension of time. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.6 If four active judges vote to request an answer to the petition or if there are a total of four votes for an answer or for rehearing, provided that there is at least one vote for an answer, the authoring judge enters an order directing such an answer within 14 calendar days from the date of the order. The clerk forwards the answer to the active judges with the request that they notify the authoring judge within 10 calendar days if they vote to grant the petition. A judge who does not desire rehearing is not expected to respond. Copies of the answer are sent as a courtesy to any senior judge or visiting judge who was a member of the panel which heard and decided the case. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.7 The authoring judge enters an order denying rehearing before the panel, and denying rehearing en banc if a majority of the active judges who are not disqualified, does not vote for rehearing. Separate orders may be entered if appropriate. When the panel grants a petition for rehearing and a petition for rehearing en banc is also pending, the judge who enters the order granting panel rehearing notifies the active judges of the vacatur of the panel opinion, and all action on the petition for rehearing en banc is suspended. Following panel rehearing, the authoring judge notifies the active judges of the disposition and whether any further vote on the petition for rehearing en banc is required.
9.5.8 If there is a dissent from the denial of rehearing and no dissenting opinion is filed, a notation will be added to the dispositive order, at the affirmative request of the dissenting judge, that "Judge would grant rehearing by the court en banc." Any active judge may file an opinion sur denial of the petition and direct its publication.
9.5.9 If a majority of the active judges of the court who are not disqualified votes for rehearing en banc, the chief judge enters an order which grants rehearing as to one or more of the issues, vacates the panel's opinion in full or in part and the judgment entered thereon, and assigns the case to the calendar for rehearing en banc.