Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 35
EN BANC DETERMINATION
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.
(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or
(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of every other United States Court of Appeals that has addressed the issue.
(2) Except by the court's permission, a petition for an en banc hearing or rehearing must not exceed 15 pages, excluding material not counted under Rule 32.
(3) For purposes of the page limit in Rule 35(b)(2), 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.
(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee's brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.
(d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case.
(e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response.
(f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.
SUGGESTION OF APPROPRIATENESS OF REHEARING EN BANC
Where a suggestion of the appropriateness of a rehearing en banc is made pursuant to FRAP 35(b) as part of a petition for rehearing, a reference to such suggestion, as well as to the petition for rehearing, shall appear on the cover of the combined petition and suggestion.
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, the existence of such conflict is an appropriate ground for suggesting a rehearing en banc.
OPPORTUNITY TO RESPOND
Where a party makes a suggestion of the appropriateness of a hearing or rehearing en banc, the Court will not order a hearing or rehearing without giving the other parties an opportunity to express their views whether hearing or rehearing en banc is appropriate. Where no suggestion of appropriateness is filed, the Court will not ordinarily order a hearing or rehearing en banc without giving counsel an opportunity to respond on the appropriateness of such a hearing.
LIMITED EN BANC COURT
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside.
The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc.
If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot.
Notwithstanding the provision herein for random drawing of names by lot, if a judge is not drawn on any of three successive en banc courts, that judge's name shall be placed automatically on the next en banc court.
In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.
Cross Reference: FRAP 40, Petition for Rehearing.
FORMAT; NUMBER OF COPIES
(1) Format/Length of Petition and Answer. The format and length of a petition for rehearing en banc and any answer shall be governed by Ninth Circuit Rule 40-1(a).
The petition or answer must be accompanied by the completed certificate of compliance found at Form 11. (New Rule 7/1/2000)
(2) Number of Copies. A petition for rehearing en banc shall be filed in an original and 50 copies.
CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 35-1 TO 35-3
(1) Calculation of Filing Deadline. Litigants are reminded that a petition for rehearing en banc must be received by the clerk in San Francisco on the due date. See, Federal Rule of Appellate Procedure 25(a)(1) and (2)(A) and Circuit Rule 25-2; see also, United States v. James, 146 F.3d 1183 (9th Cir. 1998). Pursuant to General Order 6.3a, the clerk may grant (1) upon motion or sua sponte, an extension of time of no more than seven (7) calendar days in all cases subject to the 14-day filing period and (2) upon motion, an extension of time of no more than thirty (30) days in direct criminal appeals.
(2) Number of Copies. If a petition for rehearing does not include a suggestion for a rehearing en banc, an original and 3 copies shall be filed. If a petition for rehearing does include a suggestion for a rehearing en banc, an original and 40 copies shall be filed.
(3) Initial Hearing En Banc. While a party may suggest an initial en banc hearing pursuant to FRAP 35(b), such requests are virtually never granted. When a suggestion is submitted, the Clerk notifies the parties that the case will be heard in due course by a panel unless the court votes to hear it en banc.
(4) Suggestions for Rehearing En Banc. When the clerk receives a timely petition for rehearing which also suggests rehearing en banc, copies are sent to all active judges. If the panel grants a rehearing it so advises the other members of the Court, and the suggestion for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing. Cases are rarely reheard en banc.
If no suggestion for rehearing en banc has been submitted and the panel votes to deny rehearing, an order to that effect will be prepared and filed.
If a suggestion for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc suggestion, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc suggestion, the panel will enter an order denying rehearing and rejecting the suggestion for rehearing en banc.
Any active judge who is not recused or disqualified and who entered upon active service before the call for a vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member.
The En Banc Coordinator notifies the judges when voting is complete. If the recommendation or request fails of a majority, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc consideration. The order will not specify the vote tally. However, if the recommendation or request fails by an evenly divided court, the order will so state. In addition, any active judge may direct that the judge’s dissent be incorporated in the order.
(5) Grant of Rehearing En Banc. When the court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The opinion of the three-judge panel remains in effect pending decision on the rehearing en banc unless the en banc court orders the opinion be withdrawn. Where an order specifies that the opinion of the panel has been withdrawn, that opinion shall not be regarded as precedent and shall not be cited in either briefs or oral argument to the Ninth Circuit or any district court in the Ninth Circuit. Where an order does not so specify, any citation to the opinion shall indicate that a rehearing en banc has been granted.
After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. Upon the submission of a case to the en banc court, the judge senior in service among those voting with the majority assigns the writing of the majority disposition. (rev. 1/97)
CIRCUIT RULE 35-4
NUMBER OF COPIES
A petition for rehearing en banc shall be filed in an original and 50 copies.