You’ve lost your appeal in the U.S. Court of Appeals Ninth Circuit and are certain the panel erred. Now what? Before running to the Supreme Court, which very rarely grants review, you should consider filing a petition for (panel) rehearing (PFR), or a petition for rehearing en banc (PFREB), or a combined PFR/PFREB, which is what almost everyone files.

Unless the panel missed decisive evidence in the record, or a new case directly controls, the three-judge panel is unlikely to grant a PFR. You already gave it your best shot and those judges rejected your argument. A PFREB, however, gives you the opportunity to tell the rest of the court why the panel was mistaken. Or, you might be surprised and the original panel might vote to deny the PFR, but each vote in favor of rehearing en banc because you may persuade them that the law should be changed. Remember that an en banc court can overrule any prior decision made by a three-judge panel or any prior en banc decision. Thus, an en banc court may go beyond the decision in the case at issue and change entire lines of authority whereas a three-judge panel is bound by prior panel and en banc decisions. Plus, even if the Ninth Circuit denies your PFREB, you might inspire one or more judges to write a dissent from the order denying your PFREB, which would greatly help if you choose to try again at the highest court.

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