Case: 14-1437 Document: 93-3 Page: 1 Filed: 01/08/2016
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`Questions and Answers.
`
`Petitions for Panel Rehearing (Fed. Gir. R. 40)
`and
`Petitions for Hearing or Rehearing En Bane (Fed. GiL R. 35)
`
`Q. When is a petition for paoel rehearing appropriate?
`
`merit~ panel has followed circuit precedent:, which the party
`seeks to have overruled by the court en banco
`
`Q. How frequenUy are petitions for panel rehearing granted
`by merits panels or petitions for rehearing en bane granted
`by th~ cout1?
`
`A The data regarding petitions fof panel reheanng since
`1962 shows that merits panels granted some relief ill only
`three percent of the petitions filed. The relief granted'usually
`involved only minor corrections of factual misstatem~nts,
`rarely resulting in a change of outcome in the decision.
`
`En banc petitions have been granted less frequently.
`Historically, the court has initiated en bane review in a few
`of the appeals decided en bane since 1982.
`
`Q. Is it necessary to have filed either of these petitions
`before filing a petition for certioran· in the U. S. Supreme
`Court?
`
`A. No. All that is needed is a final judgmenl of the Court of
`Appeals.
`
`A. Petitions for panel r~nearingar~.rafeIYroilsidered
`meritorious. Consequently,itisei3~ie~ttofirstanswer when
`a petition tor panel reh~aiingis nPt;3~p"oPriate.A petitiOI1
`for panel rehearing' shoiJld not be .~~~dlorea:r!;Jue issues
`already briefed and orally arglJ;c1.lf ap'arty fail7d to..
`.
`persuade the court onarissu¢.}Q.t.t<~~r?lin~~nc~.they do
`not get a second chanc:;e. TtiiS i~:~§P~ib.i~.I~:SO Wheh the .
`court has entereda jUdg(f)erlt.?tflmt,rr@i)~~\N'thC?utopinion
`under Fed. Cir. R 36,a\adj~Rr3,§iti(j[iqlJhis ~~Jure is used
`only when the appellantlP~titiO.n~r/:l.~"~~t!~r1Yfaiiedlo
`raise
`any issues in the appealthai}~9.Q1r~.ah:~pipiont()be
`written in support of thetourt'?juqgrp~fj~pf affirmance.
`
`Q.
`
`\lVhen is a petition for reheanng enhanc appropriate?
`
`A En banc decisions are eXlraofl:jillaryoccuiTeflces. To
`properly answer 'theque~tion~one n'lus[trstunaers'taria the
`responsibility of ,a three~judge (llerits panel of the court.. The
`panel is charged with deciding individual appeals according
`10 the law of the circuit as establishedin the court's
`precedential opinions. While each mentspanel is
`empowered to enter precedential opihibllS, the ultimate duty
`of the court en banc is to set forth the law of the Federal
`Circuit, which m~rits panels are obliged to follow.
`
`Thus, as a usual prerequisite, a merits panel of the court
`must have entered a precedential opinion in support of its
`jUdgment for a petition for rehearing en banc to l?e
`appropriate. In addition, the party seeking rehearing en
`banc must show that either the merits panel has failed to
`follow decisions of the Supreme Court of the United States
`or Federal Circuit precedential opinions, or that ~he