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Michael T. Brody, co-chair of Jenner & Block. Michael T. Brody, Jenner & Block.

Rehearing en banc is rare in the U.S. Court of Appeals for the Seventh Circuit. A losing party in the Seventh Circuit has as great a chance of persuading the U.S. Supreme Court to grant certiorari as it does to persuade the Seventh Circuit to grant rehearing en banc.

7th Circuit SpotlightOne way the Seventh Circuit makes rehearings en banc unnecessary is Circuit Rule 40(e), which permits the Seventh Circuit to resolve differences before issuing an opinion. If a panel has approved a proposed opinion that would overrule a prior decision of the Seventh Circuit or create a conflict with another circuit, Circuit Rule 40(e) provides the decision may not be published until it is first circulated to the active members of court who may decide whether to rehear the panel’s proposed opinion. (The panel has discretion to circulate in the same manner an opinion that would create a new rule or procedure.) If the full court does not rehear the case and the panel publishes its opinion after compliance with the rule, the resulting opinion will contain a footnote indicating that the opinion has been circulated to the entire court and the court has not granted rehearing.

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