(a) When Hearing or Rehearing En Banc May Be Ordered.
A majority of the circuit judges who are in regular active
service and who are not disqualified may order that an appeal
or other proceeding be heard or reheard by the court of
appeals en banc. An en banc hearing or rehearing is not
favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain
uniformity of the courtís decisions; or
(2) the proceeding involves a question of exceptional
(b) Petition for Hearing or Rehearing En Banc.
A party may petition for a hearing or rehearing en banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the
United States Supreme Court or of the court to which the
petition is addressed (with citation to the conflicting
case or cases) and consideration by the full court is
therefore necessary to secure and maintain uniformity of
the courtís decisions; or
(B) the proceeding involves one or more questions of
exceptional importance, each of which must be concisely
stated; for example, a petition may assert that a
proceeding presents a question of exceptional importance
if it involves an issue on which the panel decision
conflicts with the authoritative decisions of other United
States Courts of Appeals that have addressed the issue.
(2) Except by the courtís permission, a petition for an en
banc hearing or rehearing must not exceed 15 pages,
excluding material not counted under Rule 32.
(3) For purposes of the page limit in Rule 35(b)(2), if a
party files both a petition for panel rehearing and a
petition for rehearing en banc, they are considered a single
document even if they are filed separately, unless separate
filing is required by local rule.
(c) Time for Petition for Hearing or Rehearing En Banc.
A petition that an appeal be heard initially en banc must be
filed by the date when the appelleeís brief is due. A petition
for a rehearing en banc must be filed within the time
prescribed by Rule 40 for filing a petition for rehearing.
(d) Number of Copies.
The number of copies to be filed must be prescribed by local
rule and may be altered by order in a particular case.
No response may be filed to a petition for an en banc
consideration unless the court orders a response.
(f) Call for a Vote.
A vote need not be taken to determine whether the case will be
heard or reheard en banc unless a judge calls for a vote.
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Last modified at 12/16/2009