5th Cir. R. 40.2 — Determination of Causes by the Court En Banc

High confidence· verified September 26, 2026Local Rules

Summary

5th Cir. R. 40.2 — Determination of Causes by the Court En Banc: the court's own rule, verbatim from RULES and INTERNAL OPERATING PROCEDURES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT (December 2025), official PDF, sha-custodied. Court-level requirement: applies to appeals in the U.S. Court of Appeals for the Fifth Circuit alongside the Federal Rules of Appellate Procedure.

Requirement

40.2.1 Caution. Counsel are reminded that in every case the duty of counsel is fully discharged without filing a petition for rehearing en banc unless the case meets the rigid standards of FED. R. APP. P. 40(b)(2)(A)-(D). As is noted in FED. R. APP. P.40(g) and 40(d), en banc hearing or rehearing is not favored. Among the reasons is that each request for en banc consideration must be studied by every active judge of the court and is a serious call on limited judicial resources. Counsel have a duty to the court commensurate with that owed their clients to read with attention and observe with restraint the standards of FED. R. APP. P. 40(b)(2). The court takes the view that, given the extraordinary nature of petitions for en banc consideration, it is fully justified in imposing sanctions on its own initiative under, inter alia, FED. R. APP. P. 38 and 28 U.S.C. § 1927, upon the person who signed the petitions, the represented party, or both, for manifest abuse of the procedure. 40.2.2 Form of Petition. Twenty copies of every petition for en banc consideration, whether upon initial hearing or rehearing, must be filed. The petition must not be incorporated in the petition for rehearing before the panel, if one is filed, but must be complete in itself. In no case will a petition for en banc consideration adopt by reference any matter from the petition for panel rehearing or from any other briefs or motions in the case. A petition for en banc consideration must contain the following items, in order: 40.2.2.1 Certificate of interested persons required for briefs by 5TH CIR. R. 28.2.1. 40.2.2.2 If the party petitioning for en banc consideration is represented by counsel, a statement as set forth in FED. R. APP. P. 40(b)(2). 40.2.2.3 Table of contents and authorities. 40.2.2.4 Statement of the issue or issues asserted to merit en banc consideration. It will rarely occur that these will be the same as those appropriate for panel rehearing. A petition for en banc consideration must be limited to the circumstances enumerated in FED. R. APP. P. 40(b)(2)(A)-(D). 40.2.2.5 Statement of the course of proceedings and disposition of the case. 40.2.2.6 Statement of any facts necessary to the argument of the issues. 40.2.2.7 Argument and authorities. These will concern only the issues required by paragraph (.2.2.4) hereof and shall address specifically, not only their merit, but why they are contended to be worthy of en banc consideration. 40.2.2.8 Conclusion. 40.2.2.9 A certificate of service if required by FED. R. APP. P. 25(d). 40.2.2.10 A copy of the opinion or order sought to be reviewed. The opinion or order will be bound with the petition and shall not be marked or annotated. 40.2.3 Response to Petition. No response to a petition for en banc consideration will be received unless requested by the court. 40.2.4 Time and Form - Extensions. Any petition for rehearing en banc must be received in the clerk’s office within the time specified in FED. R. APP. P. 40(d)(1). Counsel should not request extensions of time except for the most compelling reasons. 40.2.5 Length. See FED. R. APP. P. 40(d)(3). The statement required by FED. R. APP. P. 40(b)(2) is included in the limit and is not a “certificate[ ]of counsel” that is excluded FED. R. App. P. 32(f). 40.2.6 Determination of Causes En Banc and Composition of En Banc Court. A cause will be heard or reheard en banc when it meets the criteria for en banc set out in FED. R. APP. P. 40(b)(2). The en banc court will be composed of all active judges of the court. Any senior circuit judge of this circuit shall be eligible (1) to participate, at his or her election and upon designation and assignment pursuant to 28 U.S.C. § 294(c) and the rules of this court, as a member of an en banc court reviewing a decision of a panel of which such judge was a member, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court en banc at a time when such judge was in regular active service. An election to participate is to be communicated timely to the chief judge and clerk.

Source of truth

40.2.1 Caution. Counsel are reminded that in every case the duty of counsel is fully discharged without filing a petition for rehearing en banc unless the case meets the rigid standards of FED. R. APP. P. 40(b)(2)(A)-(D). As is noted in FED. R. APP. P.40(g) and 40(d), en banc hea

Official source: U.S. Court of Appeals — Fifth Circuit (Rules & Procedures)
Source health: Healthy · checked October 4, 2026
Effective date: —
Last verified: September 26, 2026benchpath-appfed-rules-2026-09-25

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