A Single Rule (40) for Petition for Rehearing En Banc is Slated

B. Proposed Amendment to Rules 35 and 40—Rehearing

JUN 3, 2021 | REPUBLISHED BY LIT: JUN 4, 2021

Professor Sachs presented the subcommittee’s report regarding Rule 35 and 40 (agenda book page 125). He explained that this project has been kicking around for some time.

There is considerable duplication that results from having two rules that address rehearing. The Committee previously focused on spelling out what happens when a petition for rehearing en banc is filed and the panel believes that it can fix the problem.

How do we make clear that this can happen while still preserving a party’s right to access the full court? Working on the specifics revealed a spaghetti string of cross-references.

As a result, the Committee asked the subcommittee to attempt to integrate the two rules. The main arguments against doing so is that the changes are mostly stylistic, that renumbering rules can produce some difficulties in legal research, and that local rules will themselves have to be renumbered.

On the other hand, having a single rule governing rehearing is much less confusing for those not already familiar with appellate practice.

The subcommittee proposes that Rule 35 be abrogated and that a single rule— Rule 40—govern all petitions for rehearing. Proposed Rule 40(a) provides that a party may petition for panel rehearing, for rehearing en banc, or for either. Proposed Rule 40(b) sets forth the criteria for each kind of rehearing. Proposed Rule 40(c) brings together in one place uniform provisions governing matters such as the time to file, form, and length.

The key moves to deal with the problem that prompted this project are contained in proposed (c)(1) and (c)(5). Proposed (c)(1) provides that any amendment to a decision restarts the clock for seeking rehearing, thereby not blocking access to the full court. Proposed (c)(5) provides that a petition for rehearing en banc does not limit a panel’s authority to grant relief.

Before turning to the details of the proposal, the Committee first discussed the big question: whether or not to engage in the comprehensive revision. Mr. Byron thanked Professor Sachs for the huge amount of work and reflection he put into this project. Mr. Byron stated that for the last several years he has been advocating a comprehensive revision. It provides a real benefit of clarifying the interaction of panel rehearing and rehearing en banc, and of creating a single resource rather than leaving readers flipping back and forth between two rules. This is a huge improvement.

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A lawyer member stated that overall this is great, but had one concern about the statement that panel rehearing is the “ordinary” means of reconsidering a panel decision. She found that phrasing too encouraging; panel rehearing is not ordinarily done. Judge Bybee added that none of this is favored.

A judge member stated that she has never been in favor of the comprehensive revision, seeing no problem that needs fixing.

The substantive standards for each kinds of rehearing are totally different.

The proposed additions contained in (c)(1) and (c)(5) to deal with the identified problem can be put in one of the rules; there is no need to redo the whole thing. The comprehensive revision will create tremendous work for the courts and will make people file combined petitions for panel rehearing and rehearing en banc.

Now, forty percent seek only panel rehearing; with this amendment, everyone will file for both.

The ship has sailed on a comprehensive revision, but it is important to keep people from filing for both all the time. The prohibition on oral argument should be placed in (b)(1) dealing with panel rehearing.

Professor Sachs responded that it is a good idea to extend the existing prohibition on oral argument to en banc petitions. A lawyer member stated that she was not aware that the Committee had yet made a decision to consolidate Rules 35 and 40, and that she had never heard of a court hearing argument on a petition for rehearing. She suggested adding “unless the court orders otherwise.”

No member of the Committee could identify a situation in which a court would hold oral argument on the question whether to grant rehearing—as opposed to hearing oral argument on the merits after deciding to grant rehearing.

Mr. Byron and Judge Bybee suggested moving the prohibition on oral argument to subsection (a). Professor Sachs voiced support for making clear that the prohibition on oral argument applies to the petition for rehearing itself and feared that adding “unless the court orders otherwise” would invite motions for oral argument on the petition. The Committee agreed to move the provision regarding oral argument to subsection (a) and revise it to read, “Oral argument on whether to grant the petition is not permitted.”

Discussion then turned to the first bracketed language in the subcommittee’s draft (agenda book page 127). That language in (b)(2) would require that a petition for rehearing en banc also meet the standard in (b)(1) for a petition for panel rehearing.

A lawyer member stated that this bracketed language doesn’t make sense. A petition for rehearing en banc might not involve a claim that the panel misapprehended any law or fact; it might simply argue that the prior precedent should be revisited. She urged deleting the bracketed language. Judge Bybee agreed, and no one urged keeping it.

Professor Sachs then explained the reasons for retaining the second bracketed language in the subcommittee’s draft. That language in (b)(3) establishes the criteria for rehearing en banc that applies even when the court acts sua sponte. He also worried about the negative inference that some could draw if the provision, which is in current Rule 35, were delated.

A lawyer member stated that the language is certainly duplicative, and that she is not worried about sua sponte rehearing. A judge member urged changing as little as possible in the existing rule. This accentuates the point. The proposed rule is so much shorter than the existing rules. Judge Bybee added that any redundancy is in the existing Rule 35.

A lawyer member noted that the proposed rule now says that rehearing en banc “is not favored” twice; maybe it’s worth making that point twice.

A judge member noted that 50% of appeals involve pro se litigants.

No member of the Committee objected to retaining this language.

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A judge member suggested that proposed (c)(1), which restarts the time to file a petition for rehearing after a decision is amended, should refer to when the “panel” amends its decision, not when the “court” amends its decision. Professor Sachs responded that use of the word “court” was deliberate, to take account of the possibility of seeking rehearing of an en banc court’s decision.

While rare, an en banc court could make a mistake; even the Supreme Court allows petitions for rehearing of its decisions. A judge member stated that this project started because of an identified problem dealing with panel decisions; we shouldn’t make this change.

Judge Bybee pointed out that using the word “panel” would include the en banc panels used in the Ninth Circuit, where it is possible to have a super en banc.

The Committee decided to use the word “panel” rather than “court.”

A judge member stated that Professor Sachs had produced a phenomenal draft, and asked what happens if a party files a petition for rehearing en banc and, while it is pending, the panel changes its decision? She urged that a party should be able to stand on the already-filed petition for rehearing en banc, amend it, or file a new one.

Professor Sachs responded that, under the current draft, the earlier petition is wiped out and treated as moot. The clock starts for a new one. The party may have a very different point.

A judge member stated that the change might be minor, so a party might want to simply stand on the existing petition or amend it.

A lawyer member stated that she would file a new petition, alerting the court that she still wanted the rehearing en banc. She suggested that it might be worth clarifying this in (c)(5).

Mr. Byron agreed that a litigant’s response should be clear. A new petition makes the litigant’s response clear, including to the clerk. A judge member expressed concern that this will lead to pro se litigants having to file new sets of papers, even where the change was minor.

Mr. Byron stated that requiring a new filing is the clearest way to know the litigant’s position.

Judge Bybee stated that this could be very difficult for little folks; Mr. Byron responded that a pro se letter could be treated as a petition.

The Reporter noted that we are not trying to submit a draft for the Standing Committee to approve for publication at its January meeting.

The Committee decided to leave this issue to be considered further by the subcommittee.

A lawyer member raised an issue that had not been considered by the subcommittee. Subsection (c)(3) of the subcommittee’s draft provides that “ordinarily” a petition will not be granted in the absence of a request for a response.

She was recently involved in a case where a panel amended an opinion in response to a petition for rehearing without calling for a response.

Perhaps the panel figured that since the same party prevailed, it didn’t matter. But if a response had been sought, the prevailing party could have pointed out that the issue had been expressly waived.

She is still dealing with the fallout. Perhaps stronger language could be used.

Judge Bybee noted that sometimes scrivener’s errors are fixed without calling for a response.

Sometimes parties simply want their ages stated correctly, or their names spelled correctly.

A judge member suggested maybe something that required that a decision not be “substantively amended” without calling for a response.

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A lawyer member stated that in another context, the subcommittee struggled with a similar question, and ultimately decided against using the modifier “substantive.”

Professor Sachs then turned to the final bracketed language from the subcommittee draft, subsection (c)(4)(C) (agenda book page 128). The question is whether to include language that would add new language, not in the current rules, empowering a panel to prevent second or successive rehearing petitions; a concern is not preventing access to the full court. In response to a question from a judge member, he explained that rest of proposed section (c)(4) currently applies to panel rehearing, but that it makes sense for it to apply to both a panel and the full court. It doesn’t impose a restriction on the full court.

A judge member stated that we should not add the new bracketed language, especially if we require a new petition in response to changes made by a panel. Judge Bybee noted that his court issues these orders, but he now questions whether it should.

A lawyer member stated that even if a panel is empowered to block further petitions for panel rehearing, it should not be empowered to block petitions for rehearing en banc.

A judge member urged keeping out the new language and suggested, more broadly, that subsection (c)(4) doesn’t really fit the en banc court, urging that it remain limited to panel rehearing.

A lawyer member responded that no substantive change is intended, that applying subsection (c)(4) to the en banc court is the consequence of combing the two rules, and that it does fit the en banc court.

Professor Sachs agreed that while it is a change, it is not a substantive change, and worries about negative inferences if the subsection is limited to panels. A judge member responded that the en banc court has inherent power to do whatever it wants.

A lawyer member noted that the rule can make clear to litigants what a court may do.

A judge member drew attention to current Rule 35 (b)(3), which provides that length limitations apply to separately filed petitions for panel rehearing and rehearing en banc as if they were a single document, unless a local rule requires separate petitions.

Does the subcommittee proposal change that?

Professor Sachs responded that it was intentional to require a single document subject to the word limits. In response to a question about what would happen if a party filed separate documents, Professor Sachs stated that the subcommittee did not envision that the use of the word “either” in subsection (a) would lead parties to file two separate documents. A lawyer member suggested using the word “both” rather than “either.”

The concern remains whether to remove the ability of local rules to require separate documents. The Committee’s recollection is that at this point only the Court of Appeals for the Fifth Circuit has such a local rule. We will check with the Fifth Circuit.

The subcommittee will continue its work in light of this discussion. A judge member stated that it was a great improvement.