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DC Circuit Accepting Comments to Proposed Amendment

By Robyn Hagan Cain on October 19, 2011 | Last updated on March 21, 2019

The D.C. Circuit Court of Appeals has proposed an amendment to Circuit Rule 35 regarding the time limits for filing a petition for panel or en banc rehearing.

The proposed amendments were made to conform to expected changes to Federal Rule of Appellate Procedure (FRAP) 40, which the Supreme Court has approved. The Circuit anticipates that FRAP 40 will become effective on December 1, 2011.

The proposed version of Rule 35 states: In all cases in which a party is one of those listed in FRAP 40(a)(1)(A)-(D), the time within which any party may seek panel rehearing or rehearing en banc is 45 days after entry of judgment or other form of decision.

In all other cases, any petition for panel rehearing or petition for rehearing en banc must be filed within 30 days after entry of judgment or other form of decision. The time for filing a petition for panel rehearing or rehearing en banc will not be extended except for good cause shown.

The new FRAP 40(a)(1)(A)-(D) provides greater detail regarding which parties can file a notice of appeal within 60 days after the entry of judgment or order. The old rule simply stated that the 60-day notice period applied to matters in which the "United States or its officer or agency is a party." The new rule specifically defines the parties as:

  • The United States
  • A United States agency
  • A United States officer of employee sued in an official capacity; or
  • A current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf - including all instances in which the United States represents that person when the court of appeals' judgment is entered or filed the petition for that person.

The comment submission period for the proposed amendment ends on November 10, 2011. Written comments should be sent to:

Advisory Committee on Procedures
c/o Clerk of Court
United States Court of Appeals for the D.C. Circuit
333 Constitution Avenue, N.W., Room 5509
Washington, D.C. 20001

Changes to the D.C. Circuit Court of Appeals Handbook of Practice and Internal Procedures will be made to correspond to the impending amendments to FRAP 40, as well as amendments to Federal Rule 4, regarding the time limits for appealing a district court judgment in a civil case.

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