Over the last several months, we’ve covered a number of topics dealing with en banc practice in the Sixth Circuit, including Pierre Bergeron’s posts on the dwindling number of Sixth Circuit en banc cases (only two en banc decisions last year) and the lack of an en banc sitting this past June (a month when the Sixth Circuit traditionally holds an en banc session), as well as my practitioner’s discussion about those rare occasions where it is appropriate to request that an appeal initially be reheard en banc. And just last month, of course, Amy Hocevar and I posted an informative video blog discussing the “ins and outs” of seeking en banc review of panel decisions and highlighting the various pitfalls to avoid. That video brings us to the related topic of petitions for panel rehearing.
As a starting point, it is important to distinguish between the purpose of a petition for panel rehearing and a petition for rehearing en banc. Although the vast majority of parties in the Sixth Circuit file a petition for panel rehearing along with a suggestion for rehearing en banc, there is a clear division between the two petitions. A petition for panel rehearing is intended to bring to the attention of the panel alleged errors in the determination of state law or in the facts of the case (including sufficient evidence), or errors in the application of correct precedent to the facts of the case. See 6 Cir. R. 35; 6 Cir. I.O.P. 40(a). A petition for rehearing en banc, by contrast, is an “extraordinary procedure” intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent.
Thus, if a three-judge panel misapprehends the facts in the record (perhaps because the factual record is confusing or not well-developed or not adequately described by the parties in their briefs) or if the panel overlooks a controlling principle law (which could happen if the parties fail to develop their arguments on a particular area of law in their briefs), a party is likely to secure panel rehearing. It is much more difficult to convince a majority of the active judges on the Sixth Circuit that a particular case is so extraordinary that the resources of the full Court should be expended to rehear it en banc. In addition, an en banc rehearing entails a majority of the Circuit judges sitting in judgment of two or three of their colleagues, so there are institutional reasons why en banc review (unlike panel rehearing) is saved for “the rarest of circumstances.” Mitts v. Bagley (Case No. 05-4420, 6th Cir. Dec. 3, 2010) (Sutton, J., concurring) (citation omitted). Panel rehearings, however, are still very rare. No court is perfect, but it is unusual for a panel to make a clear error of fact (e.g., the facts in the record show that the light was green instead of red) or mistake of law (e.g., relying on a case that has been eclipsed by other cases).
Another difference between petitions for panel rehearing and petitions for rehearing en banc is what happens when they are granted. If a panel rehearing is granted, the Sixth Circuit usually will reconsider the case without additional briefing or argument. The panel only occasionally will allow supplemental briefing and reargument. It depends on the case, and it is up to the Court.
If you are planning on filing a petition for panel rehearing, be familiar with all the requirements under Rule 40 of the Federal Rules of Appellate Procedure (and related Sixth Circuit rules) governing such petitions. In the Sixth Circuit, a petition for panel rehearing may be filed within 14 days after entry of judgment, except in a civil case where the United States or its officer or agency is a party, in which case the time for seeking rehearing is 45 days after entry of judgment, unless an order shortens or extends the time.
The page limit for a petition for panel rehearing is 15 pages. Note that for purposes of the page limit, a petition for panel rehearing and a petition for rehearing en banc are considered a single document, even if they are filed separately.
Answers to a petition for a panel rehearing are not permitted. Generally, when the panel does not request an answer from the opposing party, the petition for rehearing will not be granted (which is similar to the U.S. Supreme Court’s general practice with regard to the granting of cert petitions).
Finally, be aware of the Sixth Circuit’s policy that motions for extension of time to file a petition for rehearing should not be filed except for “the most compelling reasons.” 6 Cir. R. 40. The Sixth Circuit also makes clear that “counsel should not assume that the request for additional time will be granted.” 6 Cir. I.O.P. 40. Thus, practitioners should not consider themselves “covered” simply because they have requested an extension of time in advance of a filing deadline.