Federal Circuit Rules, Rule 36(a).66 UPC Agreement, Article 78(2); UPC Rules of Procedure, Rule 350(3).67 UPC Rules of Procedure, Rule 242(2)(b); UPC Agreement, Article 75(1) (“The Court of Appeal may in exceptional cases … refer the case back to the Court of First Instance for decision.”). If the UPC Court of Appeal refers the case back to the Court of First Instance, it must specify whether the same panel or a different panel (appointed by the presiding judge of the division) will “deal further with the action.” UPC Rules of Procedure, Rule 243(1).68 UPC Rules of Procedure, Rule 242(2)(b).69 UPC Agreement, Article 75(2). Similarly, Rule 243(2) states that the Court of First Instance “shall be bound by the decision of the Court of Appeal and its ratio decidendi.” UPC Rules of Procedure, Rule 243(2).70 Federal Rules of Appellate Procedure, Rule 41; 35 U.S.C. § 144.71 UPC Rules of Procedure, Rule 238A(1).72 UPC Rules of Procedure, Rule 238A(2).73 UPC Rules of Procedure, Rule 238A(3).74 Federal Rules of Appellate Procedure, Rule 35(a); Federal Circuit Rules, Rule 35.75 Federal Rules of Appellate Procedure, Rule 35(b); Federal Circuit Rules, Rule 35, Practice Notes.76 UPC Agreement, Article 81; UPC Rules of Procedure, Rule 245(1).77 UPC Agreement, Article 81(1)(b). Rule 247 arguably expands the circumstances in which rehearing can be granted, by enumerating other examples of a “fundamental procedural defect,” including a “fundamental violation” of Article 76, which requires the Court to “evaluate evidence freely and independently” and requires its decisions on the merits to be “based on grounds, facts, and evidence” in the record “on which the parties have had an opportunity to present their comments.” UPC Agreement, Articles 76(1)-(3); UPC Rules of Procedure, Rules 247(a)-(e). However, a party requesting rehearing based on a “fundamental procedural defect” must have raised the defect during the proceedings (unless the defect could not have been raised) and must have brought an appeal based on the defect (unless the

Historically, however, federal appellate courts rarely grant petitions for rehearing by the full panel of judges. Rule 35 of the Federal Rules of Appellate Procedure explicitly provides that an en banc rehearing “is not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions or (2) the proceeding involves a question of exceptional importance.”Because this is the first appellate challenge to Labor Code 432.6, it is unlikely that the 9th Circuit will determine that such consideration is necessary to secure or maintain uniformity of the court’s decisions.

We noted that Preferred planned to file a new en banc petition but warned that relief could be months or even years away and that defendants might have to live with Hunstein II for a while.But hard on the heels of our advisory, the Eleventh Circuit bus arrived in the form of a sua sponte grant of en banc review, coupled with an order vacating the Hunstein II decision. En banc review may be conducted under Federal Rule of Appellate Procedure 35(a) on a vote of the majority of the circuit judges who are in active service, without the filing by a party of a petition for rehearing en banc. Review under FRAP 35(a) is limited to circumstances where “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions,” or “the proceeding involves a question of exceptional importance.”

Could the petition just be denied for lack of judges available to vote in the first place? After all, Federal Rule of Appellate Procedure 35(f) states“A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.” But does a litigant have a “right” to at least have a full circuit court consider the petition, even if the consideration results in no judges calling for a vote?

First published in a Preliminary Draft ‎during late 2018, when Covid-19 wasn’t even a twinkle in the eyes of our over-burdened public ‎health system, the earliest amendments to the Federal Rules in the present cycle become effective ‎in December of this year. Outlined below are the pending amendments, organized broadly by ‎the year they will become effective, including summaries of the particular changes incorporated ‎into each amended rule. ‎December 1, 2020‎2Federal Rules of Appellate Procedure 35 and 40. ‎ Federal Rule of Appellate Procedure 35(e) amendments clarify that the ‎length limits applicable to petitions for hearing or rehearing en banc also apply ‎to responses if requested by the court. ‎Amendments to Rule 40(a) clarify that the provisions of ‎Rule 40(b) ‎regarding a petition for panel rehearing also ‎apply to a response to such a ‎petition, if the court orders a ‎response, and stylistically the amendment ‎changes the language to ‎refer to a “response,” rather than an “answer,” ‎consistent with Rule 35.‎Federal Rules of Bankruptcy Procedure 2002, 2004, 8012‎ Federal Rule of Bankruptcy Procedure 2002 amendments add cases filed ‎under chapters 12 and 13 to certain sub-sections, conform respective time ‎periods to the ‎deadlines for filing proofs of claim, and confirm that ‎transmittal of ‎notice of relevant deadlines to the U.S. trustee is still ‎required.‎Amended Rule 2004 refers expressly to the production of electronically ‎stored ‎information, in addition to the general production of documents,‎ ‎and provides that

This article, however, concerns the Court’s grant of en banc review in the first place, which all three dissenting Judges condemned in their opinions. Federal Rule of Appellate Procedure 35 provides that an “en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” The majority states, “we did not take this case en banc to decide important legal questions about the inner workings of the law of obviousness.

A divided three-judge panel of the Third Circuit affirmed summary judgment in favor of the major American professional sports leagues in their suit to stop enforcement of New Jersey’s law providing for regulated sports wagering, because it conflicted with federal law: the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). Under Federal Rule of Appellate Procedure 35(a), rehearing is “not favored” and available only when “necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.” New Jersey had argued that the Panel’s ruling conflicts with several Supreme Court rulings related to commandeering and state sovereignty:New York v. United States, 505 U.S. 144 (1992), Printz v. United States, 521 U.S. 898 (1997), and Coyle v. Smith, 221 U.S. 559 (1911), cases in which the Supreme Court has struck state laws on anti-commandeering grounds, and which New Jersey contends bar “a federal prohibition on the exercise of state regulatory power”;Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009) and Shelby County v. Holder, 133 S. Ct. 2612 (2013), two recent Voting Rights Act cases in which the Supreme Court invalidated federal laws on “equal sovereignty” grounds, because PASPA favors Nevada (and other grandfathered states) over the other states.

The government also could petition the Second Circuit for a rehearing, or a rehearing en banc, or both. See Fed. R. App. P. 35 – 35.1, 40. Rehearing is generally disfavored, and will not be ordered unless “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or . . . the proceeding involves a question of exceptional importance.” Id. at Rule 35. Should the government proceed with a rehearing, it must file its petition within 14 days after the entry of judgment, which occurred on December 3, 2012.

A judge must call for a vote of all of the active judges on whether to take the case en banc. FRAP 35(f). The rule itself does not indicate whether that judge has to be an active judge.

d by the D.C. Circuit in Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004) and the Tenth Circuit in Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004), when the NRC licensed an away-from-reactor CISF in the early 2000s.The Fifth Circuit decision creates a circuit split with the D.C. Circuit in Bullcreek and the Tenth Circuit in Skull Valley Band, and this may prompt the U.S. Supreme Court to take this case for review, among other considerations in the case. It remains to be seen whether the NRC will petition the Supreme Court to review the decision and if so, whether the Court would take the case under review—but unless and until the Fifth Circuit decision is overturned, it remains binding authority in the Fifth Circuit and could influence other courts. The NRC could also request that the Fifth Circuit review the case en banc (i.e. with all active Fifth Circuit judges presiding), but these requests are not granted often. Pursuant to Federal Rule of Appellate Procedure 35, this requires a majority of active judges on the Fifth Circuit voting in favor of en banc review, and will not ordinarily be ordered unless “necessary to secure or maintain uniformity of the court's decisions” or if “the proceeding involves a question of exceptional importance.”As an immediate consideration, the NRC recently issued a similar CISF license to Holtec International, which would be located very close to the ISP project—about an hour drive away—but the distance between the two puts the Holtec project just across the Texas state line in New Mexico, which resides in the Tenth Circuit. The Holtec facility’s NRC license was challenged by New Mexico in State of New Mexico v. NRC, but the U.S. Court of Appeals for the Tenth Circuit granted the NRC’s motion to dismiss the New Mexico petition for lack of jurisdiction, finding that the Nuclear Waste Policy Act (NWPA) invoked by New Mexico “governs the establishment of a federal repository for permanent storage—not temporary storage