www.loubar.org 12 Louisville Bar Briefs Navigating Recent Changes to Sixth Circuit Rules and Procedures Brandon Girdley PROFESSIONAL EXCELLENCE On April 2, 2024, the Federal Rules of Ap- pellate Procedure (FRAP) governing panel rehearings and rehearings en banc were amended. The amendments took effect on December 1, 2024, and led to corresponding changes to the Sixth Circuit Rules and Sixth Circuit Internal Operating Procedures. The FRAP amendments transferred the contents of Rule 35, which governed hearings and rehearings en banc, to Rule 40, which governed panel rehearings. The contents of both rules, which contained separate, overlapping and duplicative provisions, have now been consolidated into Rule 40. The new Rule 40 addresses panel rehearing and rehearing en banc together in a single, streamlined rule. Subdivision (a) of the new Rule 40 clari- fies that a party may seek panel rehearing, rehearing en banc or both. However, in doing so, the subdivision makes clear that panel rehearing is the ordinary and preferred means of revisiting a panel decision and that rehearing en banc is not favored. The Advisory Committee Notes also point out that, while the new Rule 40 allows a party to seek rehearing, it does not diminish the court’s inherent power to order rehearing sua sponte, even if a petition for rehearing has not been filed. Subdivision (b) of the new Rule 40 is meant to emphasize that panel rehearing and re- hearing en banc are intended for different circumstances. The amendment highlights the distinction by contrasting the required content of a panel rehearing petition with that of a rehearing en banc petition. A panel rehearing petition must state each point of law or fact the petitioner believes the court got wrong and must argue in support of the petition. On the other hand, a rehearing en banc petition must open with a statement that does one of four things: (1) states that the panel decision conflicts with another decision of the court, and so the full court must consider the case to maintain unifor- mity with prior decisions; (2) states that the panel decision conflicts with a decision of the United States Supreme Court; (3) states that the panel decision conflicts with an authoritative decision by another United States court of appeals; or (4) states that the proceeding involves one or more excep- tionally important questions. If the petition statement falls into category (1), (2), or (3), then the petition must provide citations to the conflicting case or cases. Subdivision (c) of the new Rule 40 preserves the existing criteria and voting protocols for ordering rehearing en banc, which were car- ried over from the old Rule 35. A majority of the circuit judges in regular service who are not otherwise disqualified may order rehearing en banc. They may do so on their own or in response to a petition. No vote need be taken to determine whether a case will be reheard en banc, unless a judge calls for such a vote. This subdivision also reiterates the admonition from subdivision (a) that rehear- ing en banc is not favored. Subdivision (d) of the new Rule 40 estab- lishes uniform mechanics of a rehearing petition, including the time to file, the form, the length, the response and oral argu- ment. Absent any order or local rule to the contrary, the time to file a petition for panel rehearing and rehearing en banc is the same: 14 days after judgment is entered or, if the panel later amends its decision, 14 days after the amended decision is entered. There is an exception to the time limit if one of the parties is the United States, a United States agency, a United States officer or employee sued in an official capacity, or a current or former United States officer or employee sued individually in connec- tion with duties performed for the United States. In such cases, the 14-day time limit for filing a petition is extended to 45 days. The form of the petition must comply with Rule 32, which governs forms for briefs, appendices and other papers. The length of the petition is limited to 3,900 printed words or 15 handwritten or typewritten pages. No response to the petition is permitted unless requested by the court, but a petition will ordinarily not be granted absent a response. The Advisory Committee Notes explain that the use of the word “ordinarily” “recognizes that there may be circumstances where the need for rehearing is sufficiently clear to the court that no response is needed.” However, before the court grants rehearing without a response to the petition, it should consider the possibility that a response might raise points about the propriety of a rehearing that might otherwise be overlooked. The Ad- visory Committee Notes give the examples that a response might point out that an argu- ment raised by the party seeking rehearing has already been waived or forfeited, or that there are important parts of the record that had not previously been brought to the court’s attention. There is no oral argument on whether to grant a petition for rehearing. Subdivision (e) of the new Rule 40 explains what happens if a petition for panel rehearing or rehearing en banc is granted. The court has three options: (1) dispose of the case without any further briefing or argument from the par- ties; (2) order additional briefing or argument; or (3) issue any other appropriate order. This subdivision is analogous to Supreme Court Rule 16.1, which advises counsel that an order disposing of a petition for certiorari “may be a summary disposition on the merits.” Subdivision (f) of the new Rule 40 is a new provision. It governs a panel’s authority after a rehearing en banc petition has been filed and explains that the filing of such a petition does not limit the panel’s authority to take action on the case. For example, as the Advisory Com- mittee Notes explain, a panel may conclude that it can fix whatever problem is identified in the rehearing en banc petition simply by amending its decision. Subdivision (f) clari- fies that the panel is free to do so and that its hands are not tied simply because a rehearing petition was filed. Of course, even if a panel takes steps to fix the problem identified in the rehearing petition, the petitioner may not agree that the panel’s actions actually fixed the problem. A party may also believe that whatever action the panel took to fix the prob- lem inadvertently created a new problem. To address those possibilities, the rehearing en banc petition remains pending until disposed of by the court, even if the panel amends its decision in the interim. Lastly, subdivision (g) of the new Rule 40 governs initial hearings en banc. It explains that a court may hear an appeal or other proceeding initially en banc, either on its own or in response to a party’s petition. Like the admonitions in subdivisions (a) and (c), subdivision (g) reminds practitioners that hearings en banc—including initial hearings en banc—are not favored and will ordinarily not be ordered. The FRAP amendments discussed above led to corresponding changes to the Sixth Circuit Rules. The contents of Sixth Circuit Rule 35 were transferred to Sixth Circuit Rule 40. Those contents explain the mechan- ics of a petition for rehearing en banc: what the petition must say on the cover sheet, the effect of a grant, and specifying that counsel is not obligated to file a petition for rehearing en banc because counsel’s duty is fully dis- charged by litigating the case to a conclusion. Changes tracking the FRAP amendments were also made to the Sixth Circuit Internal Operating Procedures, or I.O.P.s. The Sixth Circuit I.O.P.s are meant “to provide useful information about the court’s procedures and facilities, as distinguished from requirements of practice and procedure.” They “describe the responsibilities, functions, organization, and procedures in the day-to-day administration of the court’s operation. They also set out the work of the judges, bench assignments, calendaring, processing of opinions, and other operating procedures.” Like the FRAP and Sixth Circuit Rules, I.O.P. 35 was con- solidated into I.O.P. 40. In addition to the changes stemming from the FRAP amendments, the Sixth Circuit recently made other miscellaneous changes. Sixth Cir- cuit Rule 25, which governs filing and service and electronic case filing, was amended to allow pro se litigants to submit filings via an online portal. Sixth Circuit Rule 30, which governs brief appendices, was amended to specify that, in state death penalty cases, certain records must be filed if they are part of the state court record and are not avail- able electronically. The Sixth Circuit Guide to Electronic Filing was amended to grant discretion to court clerks “to correct docket entry types, relief sought, or other process- related data in conformity with the rules or practices of the court.” Finally, changes were made to the Sixth Circuit Pattern Jury Instructions. One new instruction was added concerning credibility of law enforcement of- ficer witnesses, and existing instructions for several criminal offenses had their text and commentaries updated. The Federal Rules of Appellate Procedure, Sixth Circuit Rules, Sixth Circuit Internal Operating Procedures, and Sixth Circuit Guide to Electronic Filing can all be found in a single document on the Sixth Circuit website, available here: https://www.ca6.uscourts.gov/ sites/ca6/files/documents/rules_procedures/ Full%20FRAP%20Rules%20with%20 LR%20and%20IOP%2011-27-24.pdf. Brandon Girdley is an Associate with Wyatt, Tarrant & Combs’ Litigation & Dispute Resolution and Labor & Employment service teams. He con- centrates his practice on a broad range of matters, including commercial disputes, tort and insur- ance defense, appellate and labor and employ- ment issues. Girdley is chair of the LBA Appel- late Law Section. n 1,500 to 3,500 square feet, prime office space in the heart of Middletown, perfect for attorneys. Abell Rose Law firm occupies the first floor. Rates negotiable and includes utilities. Call 502-450-5611 if interested. Office Space to Lease
