Losing a federal appeal raises various options, some more appealing than others. These include filing a petition for panel rehearing, a petition for rehearing en banc, or a petition for writ of certiorari. Before deciding which petition makes sense, consider the following:
According to the Federal Rules of Appellate Procedure (FRAP), a petition for panel rehearing is used to call to the court’s attention any material errors of law or fact resulting in a denial of justice. FRAP 40(a)(2). These include: irregularities in the trial; serious evidentiary flaws; the discovery of important new evidence which was previously unavailable; accident; unpredictable surprise; or unavoidable mistake. But, mere technical errors are not proper grounds for a panel rehearing.
Though rare, a panel rehearing may also be appropriate to assess the impact of an intervening Supreme Court opinion that came down after the panel decision, that raises important questions of law. See Lowry v. Bankers Life and Cas. Retirement Plan (5th Cir. 1989) 871 F.2d 522, 525-26.
The most common practice is to file both a petition for panel rehearing along with a petition for rehearing en banc. Indeed, FRAP 35(b)(3) states that “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.”
A rehearing en banc is a rehearing heard by the chief judge of the circuit and ten additional judges drawn by lot from the active judges of the court. CTA9 Rule 35-3. Petitions for rehearing en banc are “not favored and ordinarily will not be ordered.” FRAP 35(a). To overcome this obstacle, one must demonstrate that “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions,” or show that “the proceeding involves a question of exceptional importance.” FRAP 35(a)(1) & (2).
A rehearing en banc on the ground of maintaining uniformity of the court’s decisions requires a showing of an “intra-circuit conflict,” which occurs when two panels from the same circuit court reach conflicting conclusions after considering the same issue, similar material facts, and the same controlling law. Only when conflicting decisions cannot be reconciled will a rehearing en banc be granted. This is a high burden to overcome because a single key factual distinction between the cases can easily lead to the conclusion that the decisions do not actually conflict.
Ninth Circuit Rule 35-1 additionally includes “inter-circuit conflicts” (or splits) as a ground for granting a petition for rehearing en banc. An inter-circuit split occurs when “the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity.” CTA9 35-1.
On the other hand, a rehearing en banc on the ground of “exceptional importance” is limited to “only those cases that raise issues of important systemic consequences for the development of the law and the administration of justice.” Watson v. Geren (2nd Cir. 2009) 587 F.3d 156, 160. The bar is so high that, as Senior Judge Jon O. Man of the Second Circuit put it, there is no case truly appropriate for a rehearing en banc on this ground because “it is either so unimportant as to fail to meet the criteria of Rule 35(b) or so important that the Supreme Court will surely grant certiorari!” Accordingly, some have suggested that this ground is illusory when not paired with an intra-circuit conflict or an inter-circuit split.
Both a petition for panel rehearing and a petition for rehearing en banc have demanding grounds that aren’t easily met. What’s important is knowing you have options at the Court of Appeals that you can exercise before perfecting an appeal in the Supreme Court.