9th Cir. R. 40-3

History

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 40 -2 TO 40- 3 (1) Petition for Rehearing En Banc. When the clerk receives a timely petition for rehearing en banc, copies are sent to all active judges. Cases are rarely reheard en banc. If no petition for rehearing en banc has been submitted and the panel votes to deny rehearing, an order to that effect will be prepared and filed. If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to FRAP 40 en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc review within 21 days of the receipt of the en banc petition, the panel may enter an order denying rehearing and rejecting the petition for rehearing en banc. Any active judge who is neither recused nor disqualified is eligible to vote. A judge who takes senior status during a vote is not eligible to vote. A senior judge is not eligible to be drawn to serve on the en banc Court, subject to two exceptions: (1) a judge who takes senior status during the pendency of an en banc case for which the judge has already been chosen as a member of the en banc Court may continue to serve on that Court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc Court when it reviews a decision of a panel of which the judge was a member. The En Banc Coordinator notifies the judges when voting is complete. If the call fails, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc review. The order will not specify the vote tally. (Rev. 12/1/24) (2) Grant of Rehearing En Banc. When the Court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion is vacated, subject to reinstatement by the en banc Court. (Rev. 1/1/00; 12/1/24) After the en banc Court is chosen, the judges on the en banc Court decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time, and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc Court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. (Rev. 1/03; 12/1/09; 12/1/24)