United States Court of Appeals for the Federal Circuit
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The Clerk’s Office has prepared the following guidance to litigants concerning the filing of either a petition for rehearing or a petition for hearing or rehearing en banc at the Federal Circuit.
Please consult Federal Circuit Rule 40 (Petitions for Rehearing) and Federal Circuit Rule 35 (Petitions for Hearing or Rehearing En Banc) for additional information and filing requirements.
The Federal Circuit grants few petitions for rehearing each year. These petitions for rehearing are rarely successful because they typically fail to articulate sufficient grounds upon which to grant them.
Petitions for rehearing should not be used to reargue issues previously presented that were not accepted by the merits panel during initial consideration of the appeal.
This is especially so when the court has entered a judgment of affirmance without opinion under Fed. Cir. R. 36. Such dispositions are entered if the court determines the judgment of the trial court is based on findings that are not clearly erroneous, the evidence supporting the jury verdict is sufficient, the record supports the trial court’s ruling, the decision of the administrative agency warrants affirmance under the appropriate standard of review, or the judgment or decision is without an error of law.
En banc consideration is rare. Each three-judge merits panel is charged with deciding individual appeals under existing Federal Circuit law as established in precedential opinions.
Because each merits panel may enter precedential opinions, a party seeking en banc consideration must typically show that either the merits panel has (1) failed to follow existing decisions of the U.S. Supreme Court or Federal Circuit precedent or (2) followed Federal Circuit precedent that the petitioning party now seeks to have overruled by the court en banc.
Federal Circuit Internal Operating Procedure #13 identifies several reasons when the Federal Circuit may opt to hear a matter en banc.
Parties do not need to file a petition for rehearing with the Federal Circuit before filing a petition for writ of certiorari with the U.S. Supreme Court. A petition for a writ of certiorari may be filed once the Federal Circuit has entered final judgment in a case. See Information Sheet: Filing a Petition for a Writ of Certiorari (pdf).