Petition for Rehearing or Rehearing En Banc

When the petition for rehearing or rehearing en banc is used

Timing: after the court of appeals enters judgment. The petition is generally due within 14 days after entry of judgment. In a civil case, any party has 45 days if one of the parties is the United States, a federal agency, or a federal officer or employee sued in an official capacity or, in some cases, an individual capacity (Rule 40(d)(1)). The court may shorten or extend the time by order or local rule. Appeals follow a final judgment in most cases. The Federal Rules of Appellate Procedure govern this stage.

What the rule requires

• A petition for panel rehearing must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended.
• A petition for rehearing en banc must begin with a statement that the decision conflicts with precedent or involves a question of exceptional importance (Rule 40(b)(2)).
• Oral argument on whether to grant the petition is not permitted, and no response is permitted unless the court requests one (Rule 40(d)(4)-(5)).
• If a timely petition is filed, the mandate generally issues 7 days after the order denying it (Rule 41(b)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. App. P. 40 online. Also, the federal judiciary publishes the current rules and recent amendments.

The petition for rehearing or rehearing en banc in state court

State courts follow their own rules of procedure. Many states model their rules on the federal rules, so you will often find a similar petition for rehearing or rehearing en banc procedure. However, the name, the deadline and the required form can differ. Therefore, look up the matching rule in your state’s rules of civil procedure. Also read your court’s local rules. Our state procedures guide links to each state’s official rules.

Key terms

In addition, these terms come up often with this procedure:

• En banc: french for "on the bench." A case heard by all the active judges of a court of appeals rather than by a panel of three.
• Mandate: the formal order an appellate court sends to the lower court telling it the appeal has been decided and directing further action. In the federal courts of appeals, Federal Rule of Appellate Procedure 41 governs when the mandate issues.
• Rehearing: a second hearing of a case by the same court to reconsider its decision. In the federal courts of appeals, a party may petition for panel rehearing or rehearing en banc under Federal Rule of Appellate Procedure 40.

Related procedures

Similarly, these procedures often come up alongside it:

• Opening Brief (Appellant's Brief): the appellant's main written argument in an appeal, explaining what the trial court got wrong and what the appellate court should do.
• Petition for Writ of Certiorari: a petition asking the Supreme Court of the United States to review a lower court's decision. Review is discretionary: the Court decides which cases to hear. Many state high courts have similar discretionary review under their own rules.
• Notice of Appeal: the filing that starts an appeal from a federal district court to a court of appeals.

Before you rely on this page

First, read the current text of the rule. After that, check your court’s local rules and any standing order from the judge. In addition, look at recent decisions from your own court. They show how judges apply the rule in practice. For advice about your own case, speak with a licensed attorney, for example through our directory.

State court procedure for this filing

The federal rule above applies in federal court. In state court, the same filing is governed by that state's own rules of civil procedure, statutes and local court rules. Many states model their rules on the Federal Rules of Civil Procedure, so the requirements are often similar, but names, numbers, deadlines and forms can differ. Always use the version that applies to the court where your case is filed.

Find the rule in your state

In your state's rules, look for the rule on petition for rehearing or rehearing en banc. In states that number their rules like the federal rules, it is often the same rule number as the federal rule.