Petitions for Rehearing En Banc

by | Sep 14, 2023

The N.C. Court of Appeals considers cases in panels of three judges. That means that three judges, randomly grouped together for a period of time, will work on a certain set of cases together. These three judges are drawn from the overall Court, which consists of 15 total judges. The panels are reconstituted every month or so, so that no three judges become a set “team.”

If those three judges unanimously rule against a party, traditionally that losing party has had two options. First, the party can file a Petition for Rehearing with the N.C. Court of Appeals, asking that Court to reconsider its decision. The petition goes right back to those same three judges, who obviously aren’t going to change their minds unless it is made readily apparent to them that they failed to take something into account. Second, the losing party can accept that the N.C. Court of Appeals isn’t going to change its mind, and instead ask for review from the N.C. Supreme Court in a Petition for Discretionary Review. Those two options are not mutually exclusive; the losing party can file the Petition for Rehearing and, if it is unsuccessful, then file a Petition for Discretionary Review (but, they can’t do that in reverse order).

In recent years, though, a third option has presented itself: Petitions for Rehearing En Banc. Neatly inserted as Rule 31.1 (immediately following Rule 31 for standard Petitions for Rehearing), these petitions ask for review by all 15 judges on the Court of Appeals.

The standards articulated in Rule 31.1 are somewhat vague and subjective. The case must:

1) be necessary to secure or maintain uniformity of the court’s decisions; or
2) involve a question of exceptional importance.

One would hope to be able to reverse-engineer what qualifies and what does not by looking at the successful petitions and seeing what they have in common — but there have literally been zero successful Petitions for Rehearing En Banc. That’s right — not a single one of these petitions has been granted since Rule 31.1 was enacted in 2018!

Recently I had occasion to speak with a Court of Appeals judge at a casual social event, and I point-blank asked the judge what it would take to have a winning Petition for Rehearing En Banc. The answer was little more than a shrug. I don’t get the impression that even the judges themselves agree on how high they should set the bar. Enough of them must be setting the bar high enough, though, that the majority threshold has yet to be met.

As a result, I do not present these petitions as a practical option to my clients, and I would advise any client to push back if their attorney were to recommend it. Unless cost is not a consideration or the client wants to pursue every option no matter how dismal, these petitions just don’t seem to make financial sense.

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