U.S. Court of Appeals for the Fourth Circuit
Appellate Procedure Guide
November 2014
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REHEARING & REHEARING EN BANC

REHEARING & REHEARING EN BANC
 
Grounds for Rehearing
 
Although petitions for rehearing are filed in a great many cases, few are granted. Filing a petition solely for purposes of delay or in order merely to reargue the case is an abuse of the privilege. A petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more of the following situations exist:
 
1.
2.
3.
4.
 
The petition must state with particularity the points of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Fed. R. App. P. 40; Loc. R. 40(a) & (b).
 
Grounds for Hearing or Rehearing En Banc
 
Hearings and rehearings en banc are not favored and ordinarily will not be ordered unless: en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a).
 
Length & Format of Petition
 
Format must comply with Fed. R. App. P. 32. No cover is required, but the title page must state plainly whether it is a petition for rehearing or petition for rehearing and rehearing en banc. A petition for rehearing en banc must be made at the same time and in the same document as a petition for rehearing. Except by permission of the court, a petition for rehearing, with or without a petition for rehearing en banc, may not exceed 15 pages. Fed. R. App. P. 40(b); 35(b)(2) & (3).
 
Filing Period
 
A petition for rehearing and/or rehearing en banc must be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. However, in all civil cases in which the United States or an agency or officer thereof is a party, the time within which any party may seek rehearing is 45 days after entry of judgment unless the time is shortened or enlarged by order. Fed. R. App. P. 40(a)(1). A petition that an appeal be heard initially en banc must be filed by the date the appellee's brief is due. Fed. R. App. P. 35(c).
 
The court strictly enforces the time limits for filing petitions for rehearing and petitions for rehearing en banc. The clerk's office will deny a late petition as untimely unless one of the following grounds is presented for extension: (i) the death or serious illness of counsel, or of a member of counsel's immediate family (or in the case of a party proceeding without counsel, the death or serious illness of the party or a member of the party's immediate family); or (ii) an extraordinary circumstance wholly beyond the control of counsel or a party proceeding without counsel. Loc. R. 40(c).
 
Petitions for rehearing and petitions for en banc rehearing from incarcerated persons proceeding without the assistance of counsel are deemed filed when they are delivered to prison or jail officials. All other such petitions are deemed filed only when received in the clerk's office. Loc. R. 40(c).
 
Submission to the Court
 
The clerk's office will hold any petition for rehearing or petition for rehearing en banc until the time for filing all such petitions, or any extension thereof granted in the particular case, has run. Thereafter, all petitions for rehearing in the same case will be distributed to the court simultaneously. IOP 40.1. A petition for rehearing is submitted to the panel that decided the case. A petition for rehearing en banc is distributed to all active and senior judges of the court, and to any visiting judge who heard and decided the appeal. Loc. R. 35(a).
 
Answer
 
No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing ordinarily will not be granted without a request for an answer. Fed. R. App. P. 40(a)(3). Similarly, no response to a petition for rehearing en banc may be filed unless ordered by the court. Fed. R. App. P. 35(e).
 
Panel Rehearing
 
The panel of judges who heard and decided the appeal will rule on the petition for rehearing. Such panel may include a senior circuit judge or a visiting judge sitting in the Fourth Circuit by designation. IOP 40.2. If a petition for rehearing is granted, the original judgment and opinion of the court are vacated and the case will be reheard before the original panel. IOP 40.2. The panel may make a final disposition of the case without reargument, restore the case to the calendar for reargument or resubmission, or issue any other appropriate order. Fed. R. App. P. 40(a)(4). The court may direct the filing of additional briefs, or the parties may seek leave of court to file additional briefs. IOP 40.2.
 
Decision to Hear or Rehear a Case En Banc
 
A majority of the circuit judges who are in regular active service and not disqualified in a case may grant a hearing or rehearing en banc. 28 U.S.C. § 46(c); Fed. R. App. P. 35(a); Loc. R. 35(b). A senior or visiting judge does not vote on a petition for rehearing en banc, even if the senior or visiting judge sat on the panel that decided the case. A judge who joins the court after a petition for rehearing en banc has been submitted to the court, and before an order has been entered, will be eligible to vote on the decision to hear or rehear a case en banc. Loc. R. 35(b).
 
Poll
 
Unless a judge requests that a poll be taken on the petition for rehearing en banc none will be taken. Fed. R. App. P. 35(f). A poll on whether to rehear a case en banc may be requested, with or without a petition, by an active judge of the court or by a senior or visiting judge who sat on the panel that decided the case originally. If no poll is requested, the panel's order on a petition for rehearing will bear the notation that no member of the court requested a poll. Loc. R. 35(b). If a poll is requested and hearing or rehearing en banc is denied, the order will reflect the vote of each participating judge. Loc. R. 35(b). If the court votes to grant a hearing or rehearing en banc, the order will simply recite that a majority of the judges in regular active service voted to grant hearing or rehearing en banc, but will not reflect the vote of each judge.
 
Additional Copies of Briefs
 
The order granting hearing or rehearing en banc will require the parties to file additional copies of the briefs and appendix. Loc. R. 35(d). Each party will bear the initial cost of the additional copies of its own briefs. The party that requested the hearing or rehearing en banc will bear the initial cost of filing additional copies of the appendix. In the event that cross-petitions for hearing or rehearing en banc are granted, the parties will share equally the initial cost of preparing additional copies of the appendix. The order granting rehearing en banc will also typically schedule the case for argument before the en banc court.
 
Panel Judgment Vacated
 
Granting of rehearing or rehearing en banc vacates the previous panel judgment and opinion; the rehearing is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel. Loc. R. 35(c); IOP 40.2.
 
Decision of Cases Heard or Reheard En Banc
 
An en banc hearing will be before all eligible, active and participating judges of the court. Loc. R. 35(c). An en banc rehearing will be before all eligible and participating active judges, and any senior judge of the court who sat on the panel that decided the case originally. Loc. R. 35(c). An active judge who takes senior status after a case is heard or reheard by an en banc court will be eligible to participate in the en banc decision. A judge who joins the court after argument of a case to an en banc court will not be eligible to participate in the decision of the case. A judge who joins the court after submission of a case to an en banc court without oral argument will participate in the decision of the case. Loc. R. 35(c).
 
Effect of Petition on Time to Petition for Certiorari
 
If a petition for rehearing or petition for rehearing en banc is timely filed, the time to petition for certiorari runs from the date of the denial of the petition for rehearing or petition for rehearing en banc. S. Ct. R. 13.3.
 
Papers Following Denial of Rehearing or Expiration of Rehearing Period
 
Except for timely petitions for rehearing en banc, cost and attorney fee matters, and other matters ancillary to the filing of an application for writ of certiorari with the Supreme Court (such as a motion to stay issuance of the mandate), the clerk's office will not accept motions or other papers requesting further relief in a case after the court has denied a petition for rehearing or the time for filing a petition for rehearing has expired. Loc. R. 40(d).
 
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