10th Cir. R. 40

40.1 Generally.

(A) Panel rehearing is not routine. A petition for panel rehearing

should not be filed routinely. Panel rehearing will be granted only

if a significant issue has been overlooked or misconstrued by the

court.

(B) En banc consideration is extraordinary. A request for en banc

consideration is disfavored. Before seeking rehearing en banc

litigants should be aware and take account of the fact that,

before any published panel opinion issues, it is generally

circulated to the full court and every judge on the court is given

an opportunity to comment. En banc review is an extraordinary

procedure intended to focus the entire court on an issue of

exceptional public importance or on a panel decision that

conflicts with a decision of the United States Supreme Court or

of this court.

(C) Petition for writ of certiorari to Supreme Court. Filing a

petition for panel rehearing or for rehearing en banc is not

required before filing a petition for a writ of certiorari in the United

States Supreme Court.

(D) Sanctions. If a petition for panel rehearing or for rehearing en

banc is found to be frivolous, vexatious, or filed for delay, the

court may impose a monetary penalty. Counsel may be required

to personally pay the penalty to the opposing party. See 28

U.S.C. § 1927.

40.2 Petition for rehearing en banc.

(A) Cover. The cover page and title of a petition requesting en banc

consideration must clearly indicate that en banc consideration is

sought.

(B) Attachments. A copy of the panel decision that is the subject of

a request for rehearing en banc must be attached to the petition.

No other documents may be attached unless the petition is

accompanied by a motion for leave to attach additional

documents that identifies the attachments with particularity and

states the reason(s) why they are necessary for the court’s

consideration of the petition.

(C) Untimely request. Untimely en banc requests will be transmitted

to the full court only upon express order of the hearing panel.

(D) Who may vote; en banc panel. A majority of the active judges

who are not disqualified may order rehearing en banc. When en

banc rehearing is granted, the en banc panel consists of this

court’s active judges who are not disqualified and any senior

judge who was a member of the hearing panel, unless he or she

elects not to sit.

(E) Effect of rehearing en banc. The grant of rehearing en banc

vacates the judgment, stays the mandate, and restores the case

on the docket as a pending appeal. The panel decision is not

vacated unless the court so orders.

(F) Matters not considered en banc. The en banc court does not

consider procedural and interim orders. These include, but are

not limited to, stay orders; injunctions pending appeal; and

denials of appointment of counsel, leave to appeal in forma

pauperis, and leave to appeal from a nonfinal order. En banc

requests from these rulings are referred to the judge or panel

that entered the order, in the same manner as a petition for

panel rehearing.

40.3 Hard copies not required.

Hard copies of petitions for panel rehearing or for initial or rehearing en

banc are not required.

40.4 No successive petitions/no reconsideration.

(A) No successive petitions. The court will accept only one petition

for panel rehearing or for rehearing en banc from any party to an

appeal.

(B) No reconsideration. No motion to reconsider the court’s ruling

on a petition for panel rehearing or for rehearing en banc may be

filed.