Petition for Panel Rehearing; En Banc Determination

(a) Number of Copies. When a petition for panel rehearing or rehearing en banc is filed electronically in compliance with the court’s electronic filing system, paper copies are not required and a disk copy is not required. When a petition for panel rehearing or rehearing en banc is filed in paper form, ten copies must be filed with the clerk, including one copy on computer generated disk. The disk must be filed regardless of page length but otherwise in accordance with Local Rule 32.0.

83 (b) Motions for Leave to File Oversized Petitions. A motion for leave to file a petition for panel rehearing or rehearing en banc in excess of the page length limitations of Fed. R. App. P. 40(d) must be filed at least five days in advance of the petition’s due date, must specify the additional length sought, and must contain a detailed statement of grounds. Such motions will be granted only for compelling reasons. (c) En Banc Procedures (1) Who May Vote.

The decision whether a case should be heard or reheard en banc is made solely by the circuit judges of this circuit who are in regular active service. Rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service. (2) Composition of En Banc Court. (A) A court en banc consists solely of the circuit judges of this circuit in regular active service except that any senior circuit judge of this circuit shall be eligible to participate (i) at that judge’s election, as a member of an en banc court reviewing a decision of a panel of which that judge was a member, or (ii) to continue to participate in the decision of a case or controversy that was heard or reheard by the court en banc at a time when such judge was in regular active service.

(B) For the purpose of determining those who may be a member of the en banc court under subsection (A)(ii), a case is heard or reheard by the court en banc when oral argument is held, or if no oral hearing is held, as of the date the case is ordered to be submitted to the en banc court. Rule 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 84 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) the period is extended for good cause; or (B) 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 (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.