(1)

Leave. The brief must be accompanied by a motion for leave to file. (2) Timeliness. Any brief and motion for leave must be filed within fourteen (14) days after the date of the filing of the petition or response that the amicus curiae supports. If the amicus curiae does not support either party, then the brief and motion for leave to file the brief must be filed within fourteen (14) days after the date of the filing of the petition. (3) Type-Volume Limitation. The brief must not exceed 2,600 words if prepared electronically, or ten (10) pages otherwise. (4) Paper Copies. Paper copies of the brief must be provided to the court in accordance with Federal Circuit Rule 25(c)(3). PRACTICE NOTES TO RULE 40 Timeliness. A petition for panel rehearing, hearing en banc, rehearing en banc, or combined petition is filed when the court receives it, not on the date it was mailed. The clerk of court may return an untimely petition. Hearing or Rehearing En Banc. The court may sua sponte order that an appeal be initially heard or be reheard en banc. The panel or a judge on the panel that is considering a case may at any time request the judges of the court in regular active service to hear or rehear the case en banc with or without further briefs or argument by counsel. Rehearing En Banc; Senior Judges. If a senior judge participated in the original hearing and disposition of a case for which rehearing en banc is granted, that senior judge may, as provided in the statute, participate fully in the rehearing, if rehearing is granted. See 28 U.S.C. § 46(c). Federal Circuit Rules of Practice (December 1, 2025) Page 176 (Return to Table of Contents) PRACTICE NOTES TO RULE 40 Petition for Rehearing En Banc Referred to Panel. A petition for rehearing en banc is presumed to request relief that can be granted by the panel that heard the appeal, and action on the petition for rehearing en banc will be deferred until the panel has an opportunity to grant the relief requested. Review of En Banc Nonprecedential Opinions. A petition for rehearing en banc is rarely appropriate if the appeal was the subject of a nonprecedential opinion or Rule 36 disposition by the panel of judges that heard it. Combined Petition for Panel Rehearing and Rehearing En Banc. When a combined petition for panel rehearing and rehearing en banc is filed, the petition for panel rehearing is decided first in the same manner as a petition for panel rehearing without an accompanying petition for rehearing en banc. If the panel grants the requested relief, the petition for rehearing en banc is deemed moot. Action by the Court in Petition for Panel Rehearing. When a petition for panel rehearing is filed, the clerk of court will transmit copies to the panel that decided the case. The clerk of court will enter an order denying the petition unless a majority of the panel agrees to rehear the case. Rehearing before the panel may take place with or without further briefing or oral argument by the parties as the court directs. Writ of Certiorari. Filing a petition for a panel rehearing or rehearing en banc is not a prerequisite to filing a petition for a writ of certiorari in the Supreme Court. Federal Circuit Rules of Practice (December 1, 2025) Page 177 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 41 Mandate: Contents; Issuance and Effective Date; Stay (a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs. (b) When Issued. The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time by order.* (c) Effective Date. The mandate is effective when issued. (d) Staying the Mandate Pending a Petition for Certiorari. (1) Motion to Stay. A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the petition would present a substantial question and that there is good cause for a stay. (2) Duration of Stay; Extensions. The stay must not exceed 90 days, unless: (A) (B) the period is extended for good cause; or the party who obtained the stay notifies the circuit clerk in writing within the period of the stay: (i) that the time for filing a petition has been extended, in which case the stay continues for the extended period; or *The court does not issue mandates in original proceedings or in appeals transferred to other courts or agencies. Federal Circuit Rules of Practice (December 1, 2025) Page 178 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 41 (ii) that the petition has been filed, in which case the stay continues until the Supreme Court’s final disposition. (3) Security. The court may require a bond or other security as a condition to granting or continuing a stay of the mandate. (4) Issuance of Mandate. The court of appeals must issue the mandate immediately on receiving a copy of a Supreme Court order denying the petition, unless extraordinary circumstances exist.