Rule 41.

1997 Rules of Appellate Procedure

Home

Contents

One

Two

Three

Four

Five

Appendix

Search

Rule 21	Rule 22	Rule 23	Rule 24	Rule 25	Rule 26	Rule 27	Rule 28	Rule 29	Rule 30
Rule 31	Rule 32	Rule 33	Rule 34	Rule 35	Rule 36	Rule 37	Rule 38	Rule 39	Rule 40
Rule 41	Rule 42	Rule 43	Rule 44	Rule 45	Rule 46	Rule 47	Rule 48	Rule 49	Rule 50
Rule 51

RULE 41. PANEL AND EN BANC DECISION

41.1 Decision by Panel.

(a) Constitution of panel. Unless a court of appeals with more than three justices votes to decide a case en banc, a case must be assigned for decision to a panel of the court consisting of three justices, although not every member of the panel must be present for argument. If the case is decided without argument, three justices must participate in the decision. A majority of the panel, which constitutes a quorum, must agree on the judgment. Except as otherwise provided in these rules, a panel's opinion constitutes the court's opinion, and the court must render a judgment in accordance with the panel opinion.

(b) When panel cannot agree on judgment. After argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices. If they cannot agree on a judgment, the chief justice of the court of appeals must designate another justice of the court to sit on the panel to consider the case, request the assignment of a retired or former justice or judge to sit on the panel to consider the case, or convene the court en banc to consider the case. The reconstituted panel or the en banc court may order the case reargued.

(c) When court cannot agree on judgment. After argument, if for any reason a member of a court consisting of only three justices cannot participate in deciding a case, the case may be decided by the two remaining justices. If they cannot agree on a judgment, that fact must be certified to the Chief Justice of the Supreme Court. The Chief Justice may then temporarily assign a justice of another court of appeals or a qualified retired or former justice or judge to sit with the court of appeals to consider the case. The reconstituted court may order the case reargued.

41.2 Decision by En Banc Court.

(a) Constitution of en banc court. An en banc court consists of all members of the court who are not disqualified or recused and -- if the case was originally argued before or decided by a panel -- any members of the panel who are not members of the court but remain eligible for assignment to the court. A majority of the en banc court constitute a quorum. A majority of the en banc court must agree on a judgment.

(b) When en banc court cannot agree on judgment. If a majority of an en banc court cannot agree on a judgment, that fact must be certified to the Chief Justice of the Supreme Court. The Chief Justice may then temporarily assign a justice of another court of appeals or a qualified retired or former justice or judge to sit with the court of appeals to consider the case. The reconstituted court may order the case reargued.

(c) En banc consideration disfavored. En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. A vote to determine whether a case will be heard or reheard en banc need not be taken unless a justice of the court requests a vote. If a vote is requested and a majority of the court's members vote to hear or rehear the case en banc, the en banc court will hear or rehear the case. Otherwise, a panel of the court will consider the case.

Notes and Comments
Comment to 1997 change: This is former Rule 79. The rule is reorganized. Paragraphs 41.1(b) and (c) are amended to make clear that a three judge panel must hear the case. Therefore, only if a member of a panel is lost after argument do the provisions for appointment of another justice to break a deadlock come into play. Paragraph 41.2(a) is amended to define an en banc court.

Last modified: November 08, 2001