RULE 40A. PETITION
FOR EN BANC RECONSIDERATION
(a) Grounds for En Banc Reconsideration. En banc reconsideration of a
decision of a panel of the Supreme Court is not favored and ordinarily will not
be ordered except when (1) reconsideration by the full court is necessary to
secure or maintain uniformity of decisions of the Supreme Court or Court of
Appeals, or (2) the proceeding involves a substantial precedential,
constitutional or public policy issue. The court considers a decision of a
panel of the court resolving a claim of error in a criminal case, including a
claim for postconviction relief, to be final for
purposes of exhaustion of state remedies in subsequent federal proceedings. En
banc reconsideration is available only under the limited circumstances set
forth in Rule 40A(a). Petitions for en banc
reconsideration in criminal cases filed on the pretext of exhausting state
remedies may result in the imposition of sanctions under Rule 40A(g).
(b) Time for Filing; Effect of Filing on Finality
of Judgment. Any party
may petition for en banc reconsideration of a Supreme Court panel’s decision
within 14 days after written entry of the panel’s decision to deny rehearing.
The 3-day mailing period set forth in Rule 26(c) does not apply to the time
limits set by this Rule. No petition for en banc reconsideration of a Supreme
Court panel’s decision to grant rehearing is allowed; however, if a panel
grants rehearing, any party may petition for en banc reconsideration of the
panel’s decision on rehearing within 14 days after written entry of the
decision. If no petition for rehearing of the Supreme Court panel’s decision is
filed, then no petition for en banc reconsideration is allowed.
(c) Content of Petition. A
petition based on grounds that full court reconsideration is necessary to
secure and maintain uniformity of the decisions of the Supreme Court or Court
of Appeals shall demonstrate that the panel’s decision is contrary to prior,
published opinions of the Supreme Court or Court of Appeals and shall include
specific citations to those cases. If the petition is based on grounds that the
proceeding involves a substantial precedential, constitutional or public policy
issue, the petition shall concisely set forth the issue, shall specify the
nature of the issue, and shall demonstrate the impact of the panel’s decision
beyond the litigants involved. The petition shall be supported by points and
authorities and shall contain such argument in support of the petition as the
petitioner desires to present. Matters presented in the briefs and oral
arguments may not be reargued in the petition, and no point may be raised for
the first time.
(d) Form of Petition and Answer; Number of Copies;
Length; Certificate of Compliance. A
petition for en banc reconsideration of a Supreme Court panel’s decision, or an
answer to such a petition, shall comply in form with Rule 32, and an original and 8 copies shall be filed with the clerk unless
the court by order in a particular case shall direct a different number. One
copy shall be served on counsel for each party separately represented. Except
by permission of the court, a petition for en banc reconsideration, or an
answer to such a petition, shall not exceed 10 pages. Alternatively, the
petition or answer is acceptable if it contains no more than 4,667 words, or if
it uses a monospaced typeface, and contains no more
than 433 lines of text. The petition or answer shall include the certification
required by NRAP 40(b)(4) in substantially the form
suggested in Form 16 of the Appendix of Forms.
(e) Answer and Reply. No answer to a petition for en banc reconsideration or
reply to an answer shall be filed unless requested by the court. Unless
otherwise ordered by the court, the answer to a petition for en banc
reconsideration shall be filed within 14 days after entry of the order
requesting the answer. A petition for en banc reconsideration will ordinarily
not be granted in the absence of a request for an answer.
(f) Action by Court if Granted. Any
two justices may compel the court to grant a petition for en banc
reconsideration. If a petition for en banc reconsideration is granted, the
court may make a final disposition of the cause without reargument
or may place it on the en banc calendar for reargument
or resubmission or may make such other orders as are deemed appropriate under
the circumstances of the particular case.
(g) Frivolous Petitions; Costs Assessed. Unless a case meets the rigid
standards of Rule 40A(a), the duty of counsel is
discharged without filing a petition for en banc reconsideration of a panel
decision. Counsel filing a frivolous petition shall be deemed to have
multiplied the proceedings in the case and to have increased costs unreasonably
and vexatiously. At the discretion of the court,
counsel personally may be required to pay an appropriate sanction, including
costs and attorney fees, to the opposing party.
(h) Untimely Petitions; Unrequested Answer or
Reply. A petition for
en banc reconsideration is timely if mailed or sent by commercial carrier to
the clerk within the time fixed for filing. The clerk shall not receive or file
an untimely petition, but shall return the petition unfiled. The clerk shall
return unfiled any answer or reply submitted for filing in the absence of an
order requesting the same.
[As amended; effective
March 1, 2019.]