Fed. Cir. IOP 12

In accordance with Fed. R. App. P. 26(a)(1), which states that its provisions apply in

computing any period of time specified in a local rule, one must “[e]xclude the day of the act,

event, or default that begins the period.” Thus, for example, when a voting deadline is seven

working days in this IOP, the day that the clerk distributes the petition is excluded from the seven-day count.

1. Distribution of Petition.

(a) Unless a petition expressly asks for en banc action, it will be deemed to

request only rehearing by the panel. Petitions for rehearing en banc and combined

petitions for panel rehearing and for rehearing en banc are first processed as

petitions under this IOP and thereafter may be processed under IOP #14.

(b) Promptly on receipt, the clerk will distribute the petition for rehearing to

the merits panel members with a petition for panel rehearing vote sheet. The

voting deadline will be ten working days following distribution of the petition.

2. Voting.

(a) Panel members who desire no action on a petition need do nothing.

(b) If the clerk does not receive a form from a panel member by the day

following the deadline, that panel member will be deemed to have voted to deny

the petition.

(c) A panel member desiring action on the petition will so indicate on the

petition for panel rehearing vote sheet and send it to the clerk. Copies of the

marked form will be sent to the other panel members, with an attached

memorandum of reasons if desired.

3. Orders.

(a) On the day following the deadline, if the vote of the panel is to deny the

petition, the clerk will forthwith prepare and issue an order if en banc action is not

requested, but if en banc action is requested, the panel order denying the petition

will be withheld and entered in a consolidated order disposing of the petition for

rehearing en banc.

(b) In preparing an order granting the petition, the clerk will include the action

specified by the panel (oral argument; additional briefing; modification of opinion;

etc.). If oral argument is ordered, the clerk will notify the chief judge. If

modification of the opinion is desired, the author of the original opinion will

supply the clerk with an appropriate order.

4. Responses.

(a) When a panel wishes to grant a petition (other than to make mere language

changes without change in result) the clerk will invite a response from the non-petitioning parties and will not issue the order granting the petition until ten

working days following distribution of a response. The response will be

distributed with a new petition for panel rehearing vote sheet with a voting

deadline of ten working days following distribution of the response. During the

period following distribution of a response, a judge may change his or her earlier

vote to grant by distributing a memo to the other panel members and the clerk.

Judges who have not voted, and who continue after receipt of a response to favor

denial, need do nothing. If the invitation to respond is declined, the clerk will

issue the order granting the petition.

(b) A judge may, before the original voting deadline, direct the clerk to request

a response, notifying the other panel members by a copy of his or her petition for

panel rehearing vote sheet. The original voting deadline is stayed pending receipt

of the response. A new voting deadline, ten working days after the clerk

distributes the response, will appear on the new petition for panel rehearing vote

sheet accompanying the response. If the party declines to file a response, the new

date shall be seven working days after the clerk distributes a routing slip indicating

no response will be filed.

5. In General.

(a) When a judge votes to grant a petition “only to make language changes

attached,” the clerk will withhold issuance of an order for seven additional

working days, to enable other merits panel members to review those changes.

Absent contrary notice on a petition for panel rehearing vote sheet, the clerk will

issue the order making the changes attached.

(b) When a panel’s action on a petition is limited to changes in the language of

an original precedential opinion (without change in the result) but the panel deems

the changes major substantive changes, the petition for panel rehearing vote sheet,

any revised opinion reflecting the changes, and any accompanying order

addressing the rehearing request will be circulated to the court under the same

process set forth in IOP #10(5). If the original precedential opinion was

accompanied by a concurring or dissenting opinion, the authoring judge will

communicate those changes to the panel before circulation and the dissenting or

concurring judge will promptly (1) notify the panel that no change will be made in

the dissent or concurrence; or (2) communicate to the panel any changes deemed

necessary to the original dissent or concurrence that should be circulated along

with the revised opinion to the court.

(c) When a senior judge of this court or a visiting judge served on the panel,

that judge will participate in consideration and disposition of a petition. The clerk

will send two copies of the petition for panel rehearing vote sheet to a visiting

judge who authored the panel’s original opinion.

(d) If the panel’s action on the petition involves substitution of a precedential

for an original nonprecedential opinion, the substituted opinion will be circulated

to the court.