Sample Petition for Rehearing En Banc: Grounds, Deadlines, and Filing

A petition for rehearing en banc asks every active judge on a federal court of appeals to reconsider a three-judge panel’s ruling, and the document itself is governed by Federal Rule of Appellate Procedure 40.¹ The petition must open with a statement identifying one of four recognized grounds for full-court review, stay within 3,900 words if computer-produced, and reach the clerk within 14 days of the panel’s judgment in most cases. Rule 40 itself says en banc rehearing “is not favored and ordinarily will be allowed only if” the stated criteria are met, so a petition that doesn’t fit cleanly into one of the four grounds is almost certain to fail.

The Four Grounds You Must Claim

Rule 40(b)(2) recognizes only four bases for en banc rehearing, and the petition has to state which one it relies on at the outset.¹

Intra-circuit conflict: the panel’s decision contradicts a prior ruling from the same court of appeals, and full-court review is needed to keep the circuit’s law consistent.
Conflict with a Supreme Court decision: the panel reached a result that cannot be squared with controlling Supreme Court precedent.
Inter-circuit conflict: the decision conflicts with an authoritative decision from a different federal circuit, creating a split on the same legal question.
Exceptional importance: the case raises one or more legal questions of unusual significance, concisely stated in the petition.

The first three grounds all require citing the specific conflicting decision. Vague claims that the panel “got it wrong” won’t carry the petition. The fourth ground requires showing the legal question matters well beyond the parties, typically because it affects the administration of justice or involves a rule of national application. Most circuits grant en banc rehearing only a handful of times per year.

Deadlines

The standard deadline is 14 days after entry of the panel’s judgment. If the panel later amends its decision on rehearing, a new 14-day window runs from the amended decision.¹

A longer 45-day deadline applies in civil cases where one of the parties is the United States, a federal agency, or a current or former federal officer or employee sued for actions taken in an official capacity.¹ Courts enforce these limits strictly. A petition filed a day late typically gets rejected at the clerk’s office before any judge sees it.

If you want both panel rehearing and en banc review, the two requests go in a single document unless local circuit rules say otherwise.¹ The same deadline applies to the combined petition.

Length and Formatting Limits

A computer-produced petition cannot exceed 3,900 words. This cap applies whether the document seeks en banc rehearing alone or combines a panel rehearing petition with an en banc request. A handwritten or typewritten petition is capped at 15 pages.¹

General formatting follows FRAP 32. For a computer-produced document, that means a proportionally spaced font of at least 14 points with serifs, though sans-serif fonts may appear in headings and captions.² Individual circuits add their own requirements for cover color, paper copies, and margins, so check the local rules before filing.

The word limit is tight on purpose. The petition is not a second brief; it should concentrate on why the case meets the standard for the extraordinary step of full-court review.

What Goes Inside the Petition

The federal rules and standard practice call for the following components, in roughly this order:

Cover page. Identifies the case, the parties, and the type of filing. If the document combines a panel rehearing petition with an en banc request, the cover must plainly say so.
Corporate disclosure statement. Any nongovernmental corporate party must identify its parent corporation and any publicly held company that owns 10% or more of its stock, unless one has already been filed in the case.³
Table of contents and table of authorities. Lists section headings and cites every case, statute, and other authority referenced.
Statement of counsel. The required opening statement identifying which of the four Rule 40(b)(2) grounds the petition relies on. This is where you cite the conflicting decision or concisely state the question of exceptional importance.¹
Statement of the case. A concise factual summary of the case’s history and the panel’s decision. Describe what happened; do not argue here.
Argument for rehearing. The heart of the petition. Demonstrate why the panel’s decision meets the stated ground, with citations to the conflicting authority and an explanation of why the conflict matters.
Certificate of compliance. Required for computer-produced petitions. The certificate states the word count and confirms it falls within the 3,900-word limit.²
Certificate of service. Proves the petition was delivered to all other parties.

Close with a short conclusion and counsel’s signature. Skip exhibits, appendices, and attachments unless the rules or local practice require them.

Filing and Service

Federal courts of appeals use the CM/ECF electronic filing system. Counsel in most circuits must file electronically, and filing through CM/ECF counts as service on parties registered for electronic notifications. A proof of service showing the date and method is still required.

There is no filing fee. The court of appeals miscellaneous fee schedule does not list any fee for rehearing petitions, so costs are limited to preparation time and any paper copies required by local rule.⁴

Work from Rule 40, Not Rule 35

Before December 1, 2024, the criteria for en banc rehearing sat in a separate rule, FRAP 35. That rule’s contents were transferred into an expanded Rule 40, which now governs both panel rehearing and en banc determination in one place.⁵ Older sample petitions and practice guides that cite “Rule 35” are pointing to a rule that no longer contains the operative language. Draft from Rule 40.

What Happens After You File

The clerk’s office circulates the petition to every active circuit judge. The opposing party may not respond unless the court specifically asks for one, and the court rarely grants a petition without first requesting that response.¹

Any active judge may call for a poll. The petition is granted only if a majority of the circuit’s active, non-disqualified judges vote in favor.¹ Senior judges do not vote on this question.⁶ The court may also order en banc rehearing on its own, without any petition.

If rehearing is granted, the original panel decision is vacated. The full court may order new briefing, supplemental briefing on specific issues, or both, and oral argument is typical.

Filing a timely petition also delays the mandate. The mandate does not issue until 7 days after denial or, if the petition is granted, until the en banc proceedings conclude.⁷ A timely en banc petition also resets the 90-day clock for seeking Supreme Court certiorari: if the petition is denied, that 90-day period runs from the date of the denial order rather than the original panel decision, and the tolling applies to every party in the case, not just those who joined the petition.⁸

Don’t File One Without a Real Argument

A petition filed without a colorable legal basis carries real risk. Under FRAP 38, the court can award the opposing side damages along with single or double costs if it finds the filing frivolous. Before imposing sanctions, the court must either receive a separate motion from the opposing party or give notice on its own and allow a response.⁹ A passing mention of sanctions in a brief is not enough; it takes a standalone filing.

The practical point is that a petition for rehearing en banc is not a routine next step after losing a panel decision. It exists for cases that genuinely present a conflict with binding authority or raise a question important enough to warrant the attention of every active judge on the circuit. Filing one without a credible argument for either ground wastes the court’s time and can add a fee-shifting order to an already lost case.

1
Legal Information Institute. Federal Rules of Appellate Procedure Rule 40 – Panel Rehearing; En Banc Determination
2
Legal Information Institute. Federal Rules of Appellate Procedure Rule 32 – Form of Briefs, Appendices, and Other Papers
3
Legal Information Institute. Federal Rules of Appellate Procedure Rule 26.1 – Corporate Disclosure Statement
4
United States Courts. Court of Appeals Miscellaneous Fee Schedule
5
Legal Information Institute. Federal Rules of Appellate Procedure Rule 35 – Committee Notes on Rules-2024 Amendment
6
GovInfo. 28 USC 46 – Assignment of Judges; Panels; Division
7
Legal Information Institute. Federal Rules of Appellate Procedure Rule 41 – Mandate: Contents; Issuance and Effective Date; Stay
8
Legal Information Institute. Supreme Court Rule 13 – Review on Certiorari: Time for Petitioning
9
Legal Information Institute. Federal Rules of Appellate Procedure Rule 38 – Frivolous Appeal, Damages and Costs