Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

     [||82b4d3a2-1c86-4198-b8bc-449806bfa8ca||] * ® 

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. 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 rehearing are reviewed by panel members only. Four copies of all 

petitions for rehearing shall be filed. 

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 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 iz, 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. 3 

(Local Rule 12 Reproduced on the Reverse Side) 



RULE 12. EN BANC 

{a) Procedure. A 9... for a hearing or . 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, 28 U.S.C. §46(c), and Allen v. Johnson, 

391 F.2d 527 (5th Cir. 1969). If 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 im 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 

itenws, in order: 

(1) The certificate of interested persons required for briefs 

by Local Rule 13(£)(1); 

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

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

is applicable: 

1 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] 

1 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. It 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 mot 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 

(9) Certificate of service. [||82b4d3a2-1c86-4198-b8bc-449806bfa8ca||]