Huang et al v. Marklyn Group Inc
JUDGMENT from the United States Court of Appeals for the Federal Ciscuit re: 145 Notice of Appeal, filed by Yao-Hung Huang, Big Time Auto Parts Manufacturing Inc. THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PE R CURIAM (OMALLEY, REYNA, and CHEN, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. by United States Court of Appeals for the Federal Circuit on 2/4/2016. (Attachments: # 1 Notice of Judgment, # 2 Information Sheet, # 3 Questions and Answers Information sheet) (evana, )
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Questions and Answers
Petitions for Rehearing (Fed. Cir. R. 40)
Petitions for Hearing or Rehearing En Banc (Fed. Cir. R. 35)
Q. When is a petition for rehearing appropriate?
A. Petitions for rehearing are rarely considered meritorious.
Consequently, it is easiest to first answer when a petition
for rehearing is not appropriate. A petition for rehearing
should not be used to reargue issues already briefed and
orally argued. If a party failed to persuade the court on an
issue in the first instance, they do not get a second chance.
This is especially so when the court has entered a
judgment of affirmance without opinion under Fed. Cir. R.
36, as a disposition of this nature is used only when the
appellant has utterly failed to raise any issues in the appeal
that require an opinion to be written in support of the court’s
judgment of affirmance.
Thus, as a usual prerequisite, the court must have filed
an opinion in support of its judgment for a petition for
rehearing to be appropriate. Counsel seeking rehearing
must be able to identify in the court’s opinion a material
error of fact or law, the correction of which would require a
different judgment on appeal.
Q. When is a petition for hearing or rehearing en banc
A. En banc decisions are extraordinary occurrences. To
properly answer the question, one must first understand the
responsibility of a three-judge merits panel of the court. The
panel is charged with deciding individual appeals according
to the law of the circuit as established in the court’s
precedential opinions. While each merits panel is
empowered to enter precedential opinions, the ultimate
duty of the court en banc is to set forth the law of the
Federal Circuit, which merit panels are obliged to follow.
Thus, as a usual prerequisite, a merits panel of the court
must have entered a precedential opinion in support of its
judgment for a suggestion for rehearing en banc to be
appropriate. In addition, the party seeking rehearing en
banc must show that either the merits panel has failed to
follow identifiable decisions of the U.S. Supreme Court or
Federal Circuit precedential opinions or that the merits
panel has followed circuit precedent, which the party seeks
to have overruled by the court en banc.
Q. How frequently are petitions for rehearing granted by
merits panels or petitions for rehearing en banc accepted
by the court?
A. The data regarding petitions for rehearing since 1982
shows that merits panels granted some relief in only three
percent of the more than 1900 petitions filed. The relief
granted usually involved only minor corrections of factual
misstatements, rarely resulting in a change of outcome in
En banc petitions were accepted less frequently, in only 16
of more than 1100 requests. Historically, the court itself
initiated en banc review in more than half (21 of 37) of the
very few appeals decided en banc since 1982. This sua
sponte, en banc review is a by-product of the court’s
practice of circulating every precedential panel decision to
all the judges of the Federal Circuit before it is published.
No count is kept of sua sponte, en banc polls that fail to
carry enough judges, but one of the reasons that virtually
all of the more than 1100 petitions made by the parties
since 1982 have been declined is that the court itself has
already implicitly approved the precedential opinions before
they are filed by the merits panel.
Q. Is it necessary to have filed either of these petitions
before filing a petition for certiorari in the U.S. Supreme
A. No. All that is needed is a final judgment of the Court of
Appeals. As a matter of interest, very few petitions for
certiorari from Federal Circuit decisions are granted. Since
1982, the U.S. Supreme Court has granted certiorari in only
31 appeals heard in the Federal Circuit. Almost 1000
petitions for certiorari have been filed in that period.
July 21, 2008
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