II. Rehearing
A. Generally - Panel Rehearing and Rehearing En banc
Litigants who are unsatisfied with the panel opinion may petition for rehearing. There are two types of rehearing - panel rehearing and rehearing en banc. Panel rehearing occurs when the same panel that previously decided an appeal hears it again. Rehearing en banc occurs when all the active circuit judges on the court rehear a case previously decided by a panel. If the court grants a petition for either type of rehearing, the previous panel opinion and judgment are automatically vacated.15
Petitions for rehearing of either type are rarely successful. Nevertheless, there are certain limited situations that warrant rehearing. Petitions for panel rehearing are most likely to be successful when the court has made a manifest error of law or fact. Accordingly, petitions for panel rehearing that target single (or just a few) clear mistakes are most likely to succeed. Petitions for rehearing en banc are most likely to be successful when intervening precedent from the Supreme Court or the other courts of appeals casts doubt on the correctness of the panel opinion. Further, because a subsequent panel may not overrule a prior decision of the court,16 one function of en banc review in the Fourth Circuit is to overrule prior precedent.
Regardless of the type of rehearing sought, a petition for rehearing is more likely to be successful if the tone is respectful toward the panel opinion and gently points out why rehearing is warranted.
B. Form of Petition
Local Rule 35(a) provides that "[a] petition for rehearing en banc must be made at the same time, and in the same document, as a petition for [panel] rehearing." Thus, if a party wishes to make a petition for rehearing en banc, such a petition must also include a petition for panel rehearing. This requirement reflects the notion that the panel should have the opportunity to correct any errors in the opinion before escalating the matter to the full court.
Under the Local Rules, a petition for rehearing must contain an introductory statement attesting to the existence of one or more of the following situations:
• the panel decision overlooked a material factual or legal issue;
• a change in the law occurred after the case was submitted that was overlooked by the panel;
• the panel opinion conflicts with a decision of the Supreme Court or the Fourth Circuit, or a binding decision of another court of appeals and the conflict is not addressed by the opinion; or
• the proceeding involves one or more questions of exceptional importance.17
Only the last two of these situations will justify the rehearing en banc.18
The Local Rules also provide that the cover and title of a petition for rehearing en banc must note that rehearing en banc is being sought.19
Unless requested by the court, parties opposing a petition for rehearing are not permitted to file a response to the petition.20...
