Case: 14-1019 Document: 41-3 Page: 1 Filed: 11/19/2014
e.Digital Corporation v. Futurewei Technologies Inc., et al.,
UNITED STAlES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Questions and Answers
Petitions for Panel Rehearing (Fed. Cir. R. 40)
and
Petitions for Hearing or Rehearing En Banc (Fed. Cir. R. 35)
Q. When is a petition for panel rehearing appropriate?
A. Petitions for panel rehearing are rarely considered meritorious. Consequently, it is easiest to first answer when
a petition for panel rehearing is not appropriate. A petition for panel rehearing should not be used to reargue issues already briefed and orally argued. If a party failed to
persuade the court on an issue in the first instance, they do not get a second chance. This is especially so when the court has entered a judgment of affirmance without opinion under Fed. Cir. R. 36, as a disposition of this nature is used
only when the appelian petitioner has utterly failed to raise
any issues in the appeal that require an opinion to be
written In support of the court's judgment of affirmance.
Thus, as a usual prerequisite, the court must have filed
an opinion In support of its jUdgment for a petition for panel
rehearing to be appropriate. Counsel seeking panel
rehearing must be able to identify in the court's opinion a
material error of fact or law, the correction of which would
require a different judgment on appeal.
Q. When is a petition for rehearing en bane appropriate?
A En banc decisions are extraordinary occurrences. To
properly answer the question, one must first understand the
responsibility of a three-judge merits panel of the court. The
panel is charged with deciding individual appeals according
to the law of the circuit as established in the court's
precedential opinions. While each merits panel is
empowered to enter precedential opinions, the ultimate duty
of the court en banc is to set forth the law of the Federal
Circuit, which merits 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 bane to be
appropriate. In addition, the party seeking rehearing en
bane 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 the
merits panel has followed circuit precedent, which the party
seeks to have overruled by the court en banco
Q. How frequently are petitions for panel rehearing granted by merits panels or petitions for rehearing en bane granted by the eourt?
A. The data regarding petitions for panel rehearing since
1982 shows that merits panels granted some relief in only
three percent of the petitions filed. The relief granted usually involved only minor corrections off actual misstatements,rarely resulting in a change of outcome in the decision.
En banc petitions have been granted less frequently.
Historically, the court has initiated en banc 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 certiorari in the U. S. Supreme
Court?
A. No. All that is needed is a final judgment of the Court of
Appeals.
