Petition for Rehearing En Banc - Professional Workflow

You are tasked with drafting a comprehensive Petition for Rehearing En Banc, one of the most demanding and strategically critical documents in appellate practice. This petition seeks the extraordinary remedy of having the full appellate court reconsider a panel decision, and success requires demonstrating either that the case involves a question of exceptional importance or that the panel decision conflicts with controlling precedent under Federal Rule of Appellate Procedure 35 or applicable state equivalents.

Initial Case Assessment and Research

Before drafting begins, conduct a thorough analysis of all case materials to identify the strongest grounds for en banc review. Search through the panel opinion, briefs, and record to pinpoint specific conflicts with Supreme Court or circuit precedent, or to identify issues of exceptional importance that transcend this particular case. Pay particular attention to the panel's reasoning, any concurring or dissenting opinions that may signal division within the court, and the broader legal landscape surrounding the issues presented. Research the specific circuit's or state appellate court's standards for en banc review, statistical grant rates, and recent decisions granting or denying such petitions to understand institutional preferences and threshold requirements. Verify all legal citations and ensure you have the most current versions of any statutes, regulations, or precedential decisions that will form the foundation of your conflict or importance arguments.

Document Structure and Caption Requirements

The petition must open with a meticulously formatted caption that complies with the specific court's local rules, which vary significantly across jurisdictions. The caption should identify the full name of the appellate court, include the complete case number and any consolidated case numbers, list all parties with their proper appellate designations, and clearly title the document as "Petition for Rehearing En Banc." Federal circuits typically require centered text with specific spacing, margin, and font requirements that must be verified against the local rules. State appellate courts often have distinct formatting conventions that may include different caption styles, party designations, or required certifications. The caption must accurately reflect the current procedural posture and include counsel information as required by local rules.

Crafting a Compelling Introduction

The introduction serves as the critical gateway to your petition and must immediately establish why this case warrants the extraordinary remedy of en banc review. Open with a direct, powerful statement identifying the specific ground under Rule 35(a) that justifies full court consideration, whether the proceeding involves a question of exceptional importance or the panel decision conflicts with Supreme Court or circuit precedent. Within the first two paragraphs, articulate in concrete and compelling terms why this case transcends the interests of the immediate parties and demands the attention of the full court.

When asserting a circuit split or intra-circuit conflict, identify with precision the specific courts or panels in conflict, the exact legal question on which they diverge, and why this conflict creates uncertainty that requires resolution. Quote the conflicting language from the relevant decisions and explain how practitioners, lower courts, or future litigants face irreconcilable guidance. When claiming exceptional importance, demonstrate the broader impact on a significant area of law, a substantial class of litigants, or matters of public concern that extend beyond this case. Explain how the panel's decision affects the interpretation of important statutes, creates new legal standards with wide-ranging implications, or resolves questions that will recur frequently in future litigation. This introduction should be persuasive yet concise, typically not exceeding 300-400 words, as it sets the tone and frames the court's understanding of why en banc review is warranted.

Statement of the Case: Procedural History and Facts

Provide a streamlined procedural history that traces the case from the trial court through the panel decision, but focus exclusively on those procedural developments relevant to the en banc petition. Unlike a merits brief, this statement should not exhaustively recount every motion, hearing, or ruling, but rather establish the procedural context necessary to understand the panel's decision and why it warrants en banc review. Identify the key rulings below, the issues presented to the panel, and how the panel resolved them.

The factual summary must be strategically crafted to emphasize those aspects of the case that demonstrate its exceptional importance or the conflict with precedent. Search the record and prior briefing to extract facts that show why this case presents the legal question cleanly, why the question has broad applicability, or why the panel's resolution creates practical problems. Maintain scrupulous accuracy and objectivity while framing facts to support your threshold argument for rehearing. Avoid the temptation to relitigate every factual dispute or to present facts primarily relevant to the merits rather than the en banc standard. This combined statement typically ranges from 500-800 words depending on case complexity, but every sentence should advance the argument that en banc review is warranted.

Formulating Issues with Surgical Precision

The statement of issues must crystallize with absolute precision the specific questions warranting en banc review. Each issue should be crafted to highlight either the conflict with precedent or the exceptional importance in a way that immediately resonates with judges considering whether to grant rehearing. Frame each issue as a discrete question that presents a pure question of law rather than fact-bound application, demonstrates broad applicability beyond the immediate parties, and shows that resolution will provide necessary guidance for future cases.

Consider whether the issue involves interpretation of a statute, regulation, or constitutional provision with significance across multiple cases, whether the panel decision has created uncertainty or confusion in an important area of law, and whether the issue affects the administration of justice or the operation of the court system itself. Limit your issues to one to three carefully selected questions, as courts are skeptical of petitions that attempt to relitigate every aspect of the panel decision. Each issue should be stated as a question that can be answered yes or no, avoiding argumentative language while still conveying the gravity and significance of the question. The issues should be self-evident in their importance or in revealing the conflict with precedent.

Constructing the Argument: Threshold and Merits

The argument section constitutes the substantive heart of the petition and requires sophisticated legal analysis that accomplishes two objectives simultaneously: demonstrating that the case meets the stringent threshold for en banc review while also showing that the panel erred in its legal analysis. Structure this section with clear, descriptive headings that correspond to your stated issues and guide the court through your analysis.

For each issue, begin by establishing why en banc review is warranted under Rule 35(a) before addressing the merits of the legal question. This threshold showing is paramount because even clear panel error does not justify en banc review unless the case also meets the exceptional importance or conflict standard. When arguing a conflict with precedent, provide a detailed, side-by-side comparison showing that the panel decision cannot be reconciled with prior binding authority. Search for and quote the precise language from both the panel opinion and the conflicting precedent, then explain with specificity how they reach incompatible legal conclusions on the same question. Distinguish between genuine conflicts in legal holdings versus mere differences in factual application, dicta, or alternative rationales. Courts grant en banc review for true conflicts in legal rules that create uncertainty about what law governs, not merely for different outcomes in factually distinct cases.

When arguing exceptional importance, demonstrate with concrete evidence the practical consequences of allowing the panel decision to stand. Identify the specific categories of cases, classes of litigants, or recurring legal questions that will be affected by this precedent. If the decision impacts statutory interpretation, explain how it affects the broader regulatory scheme, frustrates legislative purpose, or creates inconsistency with related statutory provisions. If constitutional questions are involved, articulate the implications for individual rights, governmental authority, or the balance of powers. Support these arguments with empirical data about case volume, scholarly commentary analyzing the legal question's significance, or perspectives from amicus briefs or professional organizations showing that the concern extends beyond your client's interests.

Throughout the argument, maintain appropriate tone and scope, recognizing that an en banoc petition is not an opportunity to simply reassert arguments the panel rejected or to challenge factual findings and credibility determinations. Focus relentlessly on demonstrating that the legal question is sufficiently important or the conflict sufficiently clear that the full court's attention is warranted. Acknowledge explicitly the high bar for en banc review and explain precisely why this case clears it. Address potential counterarguments about why the case might not warrant en banc review, such as fact-specific aspects or alternative grounds for decision. The argument section typically ranges from 2,000-3,500 words, though many circuits impose strict page or word limits (commonly 15 pages or 3,900 words under Federal Rule of Appellate Procedure 35(b)(2)) that must be scrupulously observed.

Conclusion and Required Certifications

The conclusion should be brief and direct, typically one paragraph of 50-100 words that simply requests the court grant the petition for rehearing en banc, vacate the panel decision, and either decide the case en banc or remand for further proceedings as appropriate. Avoid introducing new arguments, rehashing the entire petition, or making emotional appeals. The conclusion's sole purpose is to provide a clear, professional statement of the relief sought.

Include a certificate of compliance that certifies the petition complies with the applicable word or page limit, typeface requirements (typically 14-point for proportionally spaced fonts like Century Schoolbook or similar), and formatting rules specified in the local rules. Specify the word processing software used for the word count and the exact word count excluding exempted sections like the caption, table of contents, table of authorities, certificates, and signature block. This certificate must be accurate, as courts may reject non-compliant petitions or impose sanctions for false certifications.

The certificate of service must document that the petition was served on all parties or their counsel of record on the date of filing. Specify the method of service, which in most federal courts is electronic filing through the CM/ECF system that constitutes service on all registered users. List each party served with their counsel's name and contact information. Include the date and the signature of the attorney or party effectuating service.

Provide a signature block containing the attorney's handwritten or electronic signature as permitted by local rules, printed name, bar number, law firm name, complete mailing address, telephone number, email address, and the date of signing. Verify that the signing attorney is admitted to practice before the appellate court, as some circuits require separate admission beyond trial court bar membership.

Critical Timing and Strategic Considerations

Timing is absolutely critical and jurisdictional for en banc petitions. Federal Rule of Appellate Procedure 35(c) requires filing within 14 days after entry of judgment, and this deadline cannot be extended except in the most extraordinary circumstances involving court closure or similar events. State courts may have different deadlines ranging from 14 to 30 days. Verify the exact deadline by counting from the date of the panel's judgment or mandate, not the date of the opinion if they differ, and account for weekends and holidays under the applicable rules. Missing this deadline deprives the court of jurisdiction to grant the petition regardless of its merits.

Consider whether the case presents an appropriate vehicle for the legal question you seek to have the full court address. Courts are reluctant to grant en banc review in cases with unusual or extreme facts, significant procedural complications, or alternative grounds for decision that might prevent the court from reaching the question presented. The ideal en banc case presents a clean legal question on a well-developed record where the court can provide clear guidance without being distracted by factual disputes or procedural obstacles. If your case has vehicle problems, acknowledge them candidly and explain why they should not preclude review, or consider whether the legal question might be better presented in a future case.

Research the institutional dynamics and receptivity of the specific court to en banc petitions. Statistical grant rates vary dramatically by jurisdiction, with some circuits granting en banc review in less than one percent of petitions while others are more receptive to certain categories of cases. Understanding these patterns helps calibrate expectations and may influence strategic decisions about whether to file, how to frame the issues, and what arguments to emphasize. In circuits with many active judges, achieving a majority vote first for rehearing and then for a particular legal position can be challenging, and you should consider the composition of the court and whether the legal question might divide along predictable jurisprudential lines.

Quality Control and Final Review

Before filing, ensure absolute accuracy in all citations, quotations, and representations to the court. Search through the petition to verify every citation against the original source, confirm that quotations are exact including proper indication of any alterations with brackets or omissions with ellipses, and ensure that characterizations of precedent or the panel decision are fair and accurate. Mischaracterizing precedent or the panel's reasoning can be fatal to credibility and may result in summary denial. Use pinpoint citations for all quoted material and substantive propositions, and verify that you are citing the most current version of any statutes or regulations.

The petition should be self-contained and comprehensible to judges who did not participate in the panel decision and may not be intimately familiar with the case. Provide sufficient context and explanation without assuming prior knowledge of the facts, procedural history, or legal background. However, avoid unnecessary detail that obscures the central issues or makes the petition difficult to follow. Every paragraph should advance the argument that en banc review is warranted.

Review the petition against the specific court's local rules one final time to ensure compliance with all formatting requirements, filing procedures, and any special requirements for en banc petitions. Some courts require a separate statement of why en banc review is warranted, a disclosure of related cases, or other specialized sections beyond the standard components.

Expected Output Format

The final petition should be a polished, professionally formatted document of approximately 3,500-4,000 words (or within the specific court's page/word limit) that includes: a compliant caption; a compelling introduction establishing grounds for en banc review; a focused statement of the case; precisely crafted issues; a sophisticated argument demonstrating both threshold requirements and panel error; a brief conclusion; and all required certificates. The document should be formatted in a professional legal style with proper headings, citations in Bluebook format, and a tone that is persuasive yet respectful of the high bar for en banc review. Every element should work together to convince the full court that this case warrants the extraordinary remedy of rehearing en banc.

This petition represents a rare and critical opportunity to obtain reconsideration by the full appellate court. Approach it with the gravity, precision, and strategic sophistication it demands, recognizing that success requires not merely demonstrating panel error, but showing that the case warrants the exceptional remedy of en banc review based on conflict with precedent or exceptional importance that transcends the immediate parties.