Rule 26 Application for Reconsideration; Application for En Banc Consideration; Application for Reopening

App.R. 26(A) has now been subdivided into two provisions: App.R. 26(A)(1) governs applications for reconsideration (former App.R. 26(A)), while App.R. 26(A)(2) is a new provision governing en banc consideration.

The amendment to former App.R. 26(A) (now App.R. 26(A)(1)) contemplates a future amendment to the Supreme Court Practice Rules that will extend the time to appeal to the Supreme Court if a party has filed a timely application for reconsideration in the court of appeals. It also ensures a responding party’s full ten-day response period, even if that party does not receive the application on the day it is filed. Because the ten-day response period now begins to run from the date of service, a party served by mail now has an extra three days to file an opposition. See App.R. 14(C). Finally, the amendment permits the moving party a reply in support of the application within seven days of service of the opposition; this clarification avoids any ambiguity about the right to file a reply in support of a motion under App.R. 15(A).

The addition of App.R. 26(A)(2) is designed to address the Supreme Court’s decision in McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672 and, in particular, the holding that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Id., paragraph two of the syllabus. The new provision establishes a standard for parties to seek en banc consideration under the same procedures that govern applications for reconsideration under App.R. 26(A)(1), except that a party may also seek consideration en banc within ten days of a judgment or order ruling on an application for reconsideration if that ruling itself creates an intra-district conflict that did not appear from the panel’s original decision. The new provision also allows courts of appeals to establish their own procedures to the extent consistent with the statewide rule.

Former App.R 26(C), which required courts of appeals to decide applications for reconsideration within 45 days, has been eliminated in anticipation of an amendment to the Supreme Court Rules of Practice that will toll the time to appeal to the Supreme Court if a party has filed a timely application for reconsideration or en banc consideration in the court of appeals.

There are two amendments to App.R. 26(A)(1)(a). The first changes the event that starts the running of the ten-day period for filing an application for reconsideration. Under the former rule, the motion was due before the judgment or order of the court was approved by the court and filed by the court with the clerk for journalization or within ten days of the announcement of the court’s decision, whichever was later. Under the amended rule, the motion is due within ten days after the clerk complies with the mailing and docketing requirements of App.R. 30(A). And because the timing requirements for applications for reconsideration under App.R. 26(A)(1)(a) also govern the timing for filing an application for en banc consideration under App.R. 26(A)(2), the clerk’s compliance with the mailing and docketing requirements of App.R. 30(A) also now trigger the time to file an application for en banc consideration. The second amendment to App.R. 26(A)(1)(a) deletes language warning that an application for reconsideration did not extend the time to appeal to the Ohio Supreme Court; effective July 1, 2010, a timely filed application for reconsideration under App.R. 26(A)(1) or for en banc consideration under App.R. 26(A)(2) does extend the time to appeal to the Ohio Supreme Court under S.Ct. Prac. R. 2.2(A)(5) and (6).

There are also several amendments to App.R. 26(A)(2). Two of them are clarifications. The first clarification appears in App.R. 26(A)(2)(a) and is designed to clarify that a majority of the “en banc court”, a defined term that does not include judges who have recused themselves or been disqualified, must agree to consider a case en banc. By contrast, under App.R. 26(A)(2)(d), in order to render an en banc decision, “a majority of the full-time judges of the appellate district” including those who do not actually participate in the en banc consideration, must agree. The second clarification appears in App.R. 26(A)(2)(b), which expressly permits the en banc court to decide sua sponte to consider a case en banc. No substantive changes are intended by either of these amendments.

Two substantive amendments to App.R. 26(A)(2)(c) govern the process for sua sponte en banc consideration. First, the rule now specifies that any sua sponte decision to consider a case en banc must be made within ten days of the date the clerk complies with the mailing and docketing requirements of App.R. 30(A). The former rule included no time limit for a sua sponte decision to consider a case en banc, and this addition was intended to ensure finality to the appellate process. Second, if the court decides sua sponte to consider a case en banc, it must vacate the judgments or orders in the case that will be considered en banc so that the time for a party to appeal to the Ohio Supreme Court does not run concurrently with the court’s sua sponte en banc consideration. A recent amendment to the Supreme Court Practice Rules extends the time to appeal to the Ohio Supreme Court in the event that a party files a timely application for en banc consideration, but there is no such provision in the event the court of appeals decides sua sponte to consider a case en banc. See S.Ct. Prac. R. 2.2(a)(6).

The amendment to App.R. 26(A)(2)(c) removes language added in 2011 that required a court of appeals to vacate a panel decision in the event of a sua sponte decision to consider a case en banc. That language was added to ensure that a party’s time to appeal to the Supreme Court would not begin to run while en banc consideration was pending. But the language is no longer necessary in light of a 2011 amendment to S.Ct.Prac.R. 2.2.

Removed from divisions (A)(1)(a) and (A)(2)(c) is language that appeared to require the clerk of the court of appeals to mail notices to the parties about the filing of the court’s orders and judgments. The amended rule indicates that the clerk is to send to each party a copy of the court’s order or judgment itself rather than just a notice.

Those same divisions of the rule set a new triggering event that starts the time period when applications for reconsideration and for en banc consideration can be filed. Formerly, that period did not begin to run until the clerk had sent a notice to the parties about the filing of the court’s order or judgment. Under the amended rule, the time period for filing applications for reconsideration or for en banc consideration begins to run when the court’s order or judgment is issued.

To account for that possibly earlier starting date for the running of the application period, the amended rule shifts the filing period from 10 days to 15 days, meaning that any application for reconsideration or for en banc consideration must generally be filed within 15 days from the filing date of the court’s judgment or order.

The former rule was silent about the content and length of any application for reconsideration filed under division (A). The amended rule—in division (A)(1)—explains briefly the information that a reconsideration request should contain and also establishes a limit of 15 pages for any application for reconsideration. The amendment similarly sets a 15-page cap on the length of any response. And finally, the amended rule indicates that no reply brief is to be filed by the applicant.

Division (A)(2) of the amended rule implements the same page limits for en banc applications and responses outlined above for reconsideration applications, and it includes a similar ban on the filing of any reply brief by the applicant.

Amended division (A)(2)(c) now includes the kind of triggering-event language described above in the second paragraph of this staff note. That is, the amendment provides that the time period for filing an en banc application begins to run when the court’s order or judgment is issued rather than when the clerk sends a notice about the issuance of the order or judgment. As with the reconsideration provision in division (A)(1), the en banc provision in division (A)(2) accounts for that new filing-period triggering event by extending from 10 days to 15 days the window for the filing of any en banc applications.

Amended division (A)(2)(b), in addressing instances when an appellate court orders en banc review of one of its own decisions even in the absence of a request from a party for that extraordinary procedure, now includes the kind of triggering-event language described above in the second paragraph of this staff note. That is, the amendment provides that the time period within which the court of appeals can, even in the absence of an en banc application from a party, decide to review en banc one of its own decisions begins to run when the court’s order or judgment is issued rather than when the clerk sends a notice about the issuance of the order or judgment. The time period for the court to take that step on its own remains unchanged at 10 days. Also, nothing in the amendment alters the recent holding of the Supreme Court in State v. Maldonado, 2024-Ohio-2652, ¶ 20 (“App.R. 26(A)(2) requires that a decision in a case be issued by a three-judge panel before the court of appeals may sua sponte order en banc consideration of an issue in that case”).

Other stylistic updates intended to improve the readability of the rule and to bring greater clarity to some of its existing provisions have also been made.