Rule 12; Fifth Circuit Statements on Petitions for Rehearing or Rehearing En Banc

     [||ada646a7-c4d0-4b0e-af06-b203b173cd9d||] Rule 12. En Banc — Required Statement For 

Rehearing En Banc 

A suggestion for a hearing or rehearing en banc may be made as provided 

in Rule 35 of the Federal Rules of Appellate Procedure or by any Judge of 
the Court in active service on his own motion. 

Where the petitioner for rehearing en banc is represented by counsel, the 

petition shall contain on the first page of the petition, one or both of the 

following statements of counsel as applicable: 

REQUIRED STATEMENT FOR REHEARING EN BANC 

I express a belief, based on a reasoned and studied professional 
judgment, that the panel decision is contrary 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 uniformity 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 en banc consideration of a case is an 
extraordinary measure, and 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 Rule 35(a) of the Federal Rules of Appellate 

Procedure. 

A 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 controversy if he sat in the Court or division at the 

original hearing thereof. (See also Rule 35, F.R.A.P., 28 U.S.C. § 46(c), and 

Allen v. Johnson, 5 Cir., 1968, 391 F.2d 527. See Rules 40, 32(a) and 31(b), 
F.R.A.P., on time for filing, form of petition, number to be filed, filing and 
service of petition for rehearing. 

 



FIFTH ReUIT STATEMENTS On PETIT@NS 
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. 

PURPOSE OF PETITION FOR REHEARING 
  

A petition for rehearing is intended to bring to the attention of 
the panel claimed errors of fact or law in the opinion. It 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 rehear- 
ing are reviewed by panel members only. 

EXTRAORDINARY NATURE OF PETITIONS 
FOR REHEARING EN BANC 
  

A petition for rehearing 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.   

THE MOST ABUSED PREROGATIVE 
  

Petitions for rehearing en banc are the most abuses 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 in most 
of the rehearings granted, a judge of the court initiated an independent 
request for en banc reconsideration. 

PROCEDURES - COUNSEL'S DUTY FULLY DISCHARGED 
WITHOUT FILING A PETITION FOR REHEARING EN BANC 
  

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 
questions 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. and the number of copies fixed by Local Rule 13(i). 

(Local Rule 12 Reproduced on the Reverse Side) [||ada646a7-c4d0-4b0e-af06-b203b173cd9d||]