Handbook XIII.B: Reconsideration

1. Rehearing by the Panel (See Fed. R. App. P. 32, 40; D.C. Cir. Rule 40.)

Very few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.

A party seeking rehearing must file a petition within 45 days after entry of the judgment in any case in which a party is either the United States, one of its agencies, a federal officer or employee sued in an official capacity, or, under certain circumstances, a federal officer or employee sued in an individual capacity. See Fed. R. App. P. 40(d)(1); D.C. Cir. Rule 40(a). If no party fits into one of these categories, the petition must be filed within 30 days. These time limits will not be extended except for good cause shown. The petition must state with particularity the errors that the panel is claimed to have made. An original and 4 copies must be filed. A copy of the panel's opinion, a Rule 28(a)(1)(A) certificate of parties and amici, and any disclosure statement required by Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1 must be attached as an addendum to the petition. See D.C. Cir. Rule 40(c). The form of a petition for rehearing is governed by Federal Rule of Appellate Procedure 32, and the petition may not exceed 3,900 words if produced using a computer and 15 pages if handwritten or typewritten. See Fed. R. App. P. 40(d)(2)-(3); D.C. Cir. Rule 40(b). Motions to exceed this length limitation are viewed with disfavor and will be granted only for extraordinarily compelling reasons.

A response to the petition is not permitted unless the panel requests one. A petition for rehearing, however, will not ordinarily be granted, nor will an opinion or judgment be modified in any significant respect, in the absence of a request by the Court for a response. The length limits for a petition for rehearing also apply to a response. See Fed. R. App. P. 40(d)(4); D.C. Cir. Rule 40(d).

The Clerk does not send the mandate to the district court or agency until a timely petition for rehearing has been decided, unless the Court expressly so orders. The Clerk also will delay issuing the mandate when a party moves for an extension of the time within which to petition for rehearing or rehearing en banc. A timely petition for rehearing or rehearing en banc extends the time for petitioning the United States Supreme Court for a writ of certiorari.

The Clerk’s Office transmits the petition to the panel members via an electronic vote sheet. When voting is complete, the Clerk enters an appropriate order for the Court. If a petition for rehearing en banc also has been filed, the Clerk will withhold entry of an order denying rehearing by the panel until the en banc question has been resolved. If rehearing en banc is granted, the panel's judgment, but ordinarily not its opinion, is vacated, but the panel may act on the petition for rehearing without waiting for final termination of the en banc proceeding. On termination of the en banc proceeding (including when the en banc Court divides evenly), a new judgment will be issued.

Prior to either a decision by the Court to grant rehearing en banc or issuance of the Court’s mandate, a panel may reconsider or amend its decision sua sponte, or on consideration of a petition for panel rehearing, or upon consideration of a petition for rehearing en banc. If a panel decides to reconsider or amend its decision, voting may be deferred on any pending petition for rehearing en banc or the en banc petition may be dismissed as moot with notice to the parties that a new period for seeking rehearing en banc will begin to run after the panel concludes its reconsideration of its decision. The panel may order new or supplemental briefing and oral argument. If the panel reconsiders the case, it may issue a new opinion along with a new judgment.

2. Rehearing En Banc (See Fed. R. App. P. 40; D.C. Cir. Rule 40.)

Like petitions for rehearing by a panel, petitions for rehearing en banc are rarely granted. Federal Rule of Appellate Procedure 40(c) expressly states that en banc hearings are not favored and ordinarily will be allowed only if one of the criteria in Rule 40(b)(2)(A)-(D) is met.

The timing requirements for a petition for rehearing en banc are the same as those for panel rehearing. The petition must begin with a section that sets forth why the case is of exceptional importance or cites the decisions with which the panel judgment is claimed to be in conflict. An original and 19 copies must be filed. As with panel rehearing petitions, a copy of the panel opinion, a Rule 28(a)(1)(A) certificate of parties and amici, and any disclosure statement required by Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1 must be attached as an addendum to the petition. See D.C. Cir. Rule 40(c). The petition may not exceed 3,900 words if produced using a computer and 15 pages if handwritten or typewritten. Motions to exceed this limitation are viewed with disfavor and will be granted only for extraordinarily compelling reasons.

If a party is submitting both a petition for rehearing by the panel and a petition for rehearing en banc, the two must be combined in the same document, in which event an original and 19 copies must be filed. The combined pleading may not exceed 3,900 words if produced using a computer and 15 pages if handwritten or typewritten.

As in the case of petitions for panel rehearing, the rules do not provide for a response to a petition for rehearing en banc, except by request of the Court. If any member of the Court wishes a response, the Clerk will enter an order to that effect. The length limits for a petition for rehearing en banc also apply to a response. See Fed. R. App. P. 40(d)(4); D.C. Cir. Rule 40(d). There is no oral argument on the question whether rehearing en banc should be granted.

The Clerk’s Office transmits a vote sheet and the petition for rehearing en banc electronically to all members of the original panel, including a senior judge of this Court, and to all other active judges of this Court. A vote may be requested by an active judge of the Court, or by any member of the panel. If no judge asks for a vote within a specified time, and none requests more time to consider the matter, the Clerk will enter an order denying the petition.

If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted.

When rehearing en banc is granted, the Clerk enters an order granting the rehearing en banc and vacating the judgment by the original panel, either in whole or in part, as circumstances warrant. This order is posted on the Court’s website and is published in the federal reporter system. An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish.

The Court has followed a variety of procedures in conducting rehearing en banc. On occasion, only the original briefs have been considered; in other cases, the Court has requested supplemental briefs. The Court almost always hears oral argument in considering a case en banc.

The Court sitting en banc consists of all active judges, plus any senior judges of the Court who were members of the original panel and wish to participate. When the Court sits en banc with an even number of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or judgment under review, and it may publish the en banc Court's divided views.

In the absence of a request from a party, any active judge of the Court, or member of the panel, may suggest that a case be reheard en banc. If a majority of the active judges who are not recused agree, the Court orders rehearing en banc.

In addition, a party may petition for initial en banc consideration. Such a petition must include a concise statement of the issue and its importance and conform to the other requirements of Federal Rule of Appellate Procedure 40(b)(2), (c), and (d)(2)-(5). If a party wishes a case to be heard initially en banc, the petition ideally should be filed within the first 30 days after docketing, but in no event later than the date on which that party’s brief is due. A judge also may suggest en banc consideration prior to the panel decision; on occasion this has been done by the panel itself.