Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

     [||e428541b-1b92-4a0c-8e51-8bb3905ebaaa||] FIFTH CIRCUIT STATEMENT ON PETITIONS 
FOR REHEARING OR REHEARING EN BANC 

  

  

NECESSITY FOR FILING 
  

It is not necessary to file a petition for rehearing in the 

Court of Appeals as a prerequisite to the filing of a petition for 
certiorari in the Supreme Court of the United States. 

PETITION FOR PANEL REHEARING 
  

A petition for rehearing is intended to bring to the attention 
of the panel claimed errors of fact or law in the opinion. lt is not 
to be used for reargument of the issue previously presented or to 
attack the court's well settled summary calendar procedures. Petitions 
for rehearing are reviewed by panel members only. Four copies of all 

petitions for rehearing shall be filed. 

EXTRAORDINARY NATURE Or PETITIONS 

FOR REHEARING EN BANC 
  

A petition for rehearing en banc 1s an extraordinary procedure 
which is intended to bring to the attention of the entire court a 
precedent-setting error of exceptional public importance or an opinion 
which directly conflicts with prior Supreme Court or Fifth Circuit 
precedent. Alleged errors in the determination of state law, or in the 
facts of the case (including sufficiency of the evidence), or error 
asserted in the misapplication of correct precedent to the facts of the 
case, are matters for panel rehearing but not for rehearing en banc.   

THE MOST ABUSED PREROGATIVE 
  

Petitions for rehearing en banc are the most abused prerogative 
of appellate advocates in the Fifth Circuit. While such petitions were 
filed in 15% of the cases decided by this circuit last year, less than 
1% of the cases decided by the court are reheard en banc; and most of 
the rehearings granted resulted from a request for en banc reconsidera- 
tion by a judge of the court initiated independent of any petition. 

PETITION FOR REHEARING EN BANC 
  

Twenty-five copies of every petition suggesting rehearing en banc 
shall be filed. The petition shall be complete in itself and shall in 
no case refer to or adopt by reference any matter from other briefs or 
motions in the case. The form and contents of the petition are set out 

in local Rule 12(b). 

Under Fifth Circuit local Rule 12, counsel are required to file 
a written statement setting forth why, in their studied professional 
judgment, the case should be reheard en banc, listing either the Fifth 
Circuit or Supreme Court cases with which the decision conflicts or the 
guestions of exceptional importance which would require en banc considera- 
tion. Therefore, unless these rigid standards of Federal Rule of 
Appellate Procedure 35 are met, the duty of counsel is fully discharged 
without the filing of such a petition. 

RESPONSE TO PETITIONS 
  

No response to a petition for rehearing or rehearing en banc 
should be filed unless requested by the court. 

TIME AND FORM--EXTENSIONS 
  

The petition (panel or en banc) must be filed within 14 days 
after the date of the opinion. Counsel should not request extensions 
of time except for the most compelling reasons. Printing delays will 
not be considered a sufficient reason, as clear and legible reproduced 
copies of typewritten petitions are authorized in the form prescribed 
by Rule 40(b) F.R.A.P. 

(Local Rule 12 Reproduced on the Reverse Side) 

 



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RULE 12. EN BANC 

  

  

(a) Procedure. A suggestion for a hearing or rehearing en banc may 
be made as provided in F.R.A.P. 35 and herein or by any judge of the 
Court in active service on his. own motion. 

The court en banc shall consist of all circuit judges in regular 
active service of the circuit. A circuit judge of the circuit.who 
has retired from regular active service shall also be competent to 
sit as a judge of the court en banc in the rehearing of a case or con- 
troversy if that judge sat on the panel at the original hearing thereof. 
See also Fed. R. App. P. 35,728 U.S.C. 846(c), and Allen v. Johnson, 

  

  
381 ‘F.24.527 (5th. Cir. 1969). 1f rehearing en banc is granted, every 
party shall furnish to the clerk 15 additional copies of every brief 
the party has previously filed. 

(b) Form of Suggestion. Twenty-five copies of every petition suggesting 
rehearing en banc shall be filed. The petition shall be complete in it~ 
self and shall in no case refer to or adopt by reference any matter from 
other briefs or motions in the case. It shall contain the following 

items, in order: 

  

(1) The certificate of interested persons required for briefs 

by local Bule 1I3(f)(1l); 

(2) Where the petitioner for rehearing en banc is represented 

by counsel, one or both of the following statements of counsel 

is applicable: 

I express a belief, based on a reasoned and studied 

professional judgment, that the panel decision is con- 

trary to the following decision(s) of the United States 
Court of Appeals for the Fifth Circuit [or the. Supreme 

Court of the United States], and that consideration by 
the full court is necessary to secure and maintain uni- 

formity of decisions in this court: [citing specifically 

the case or cases] 

I express a belief, based on a reasoned and studied 

professional judgment, that this appeal involves one or 

more questions of exceptional importance: [set forth 

each question in one sentence] 

  

Attorney of record for 
  

Counsel are reminded that in every case the duty of counsel is 

fully discharged without filing a suggestion for rehearing en banc 

unless the case meets the rigid standards of F.R.A.P. 35(a). 

(3) Table of contents and citations; 

(4) A statement of the issue or issues asserted to merit en banc 

consideration. Jt will rarely occur that these will be the same 

as those appropriate for panel rehearing. A petition for rehear- 
ing en banc is an extraordinary procedure which is intended to 
bring to the attention of the entire court a precedent-setting 
error of exceptional public importance or an opinion which directly 

conflicts with prior Supreme Court or Fifth Circuit precedent. 

Alleged errors in the determination of state law, or in the facts 
of the case (including sufficiency of the evidence), or error 

asserted in the misapplication of correct precedent to the facts 
of the case, are matters for panel rehearing but not for rehearing 
en banc; 

  

(5) A statement of the course of proceedings and disposition of 
the case; 

(6) A statement of any facts necessary to the argument of the issues; 

(7) Argument and authorities. These shall concern only the issues 

required by paragraph (4) hereof and shall address specifically, 
not only their merit, but why they are contended to be worthy of 
en banc consideration; 

(8) Conclusion; and [||e428541b-1b92-4a0c-8e51-8bb3905ebaaa||]