RULE 9.331. DETERMINATION OF CAUSES IN A DISTRICT
COURT OF APPEAL EN BANC

(a) En Banc Proceedings; Generally. A majority of the
participating judges of a district court of appeal may order that a
proceeding pending before the court be determined en banc. If a
majority of the participating judges order that a proceeding will be
determined en banc, the district court of appeal shall promptly
notify the parties that the proceeding will be determined en banc. A
district court of appeal en banc shall consist of the judges in
regular active service on the court. En banc hearings and
rehearings shall not be ordered unless the case or issue is of
exceptional importance or unless necessary to maintain uniformity
in the court’s decisions. The en banc decision shall be by a majority
of the active judges actually participating and voting on the case. In
the event of a tie vote, the panel decision of the district court of
appeal shall stand as the decision of the court. If there is no panel
decision, a tie vote will affirm the trial court decision.
(b) En Banc Proceedings by Divisions. If a district court of
appeal chooses to sit in subject-matter divisions as approved by the
supreme court, en banc determinations shall be limited to those
regular active judges within the division to which the case is
assigned, unless the chief judge determines that the case involves
matters of general application and that en banc determination
should be made by all regular active judges. However, in the
absence of such determination by the chief judge, the full court may
determine by an affirmative vote of three-fifths of the active judges
that the case involves matters that should be heard and decided by
the full court, in which event en banc determination on the merits
of the case shall be made by an affirmative vote of a majority of the
regular active judges participating.

(c) Hearings En Banc. A hearing en banc may be ordered
only by a district court of appeal on its own motion. A party may
not request an en banc hearing. A motion seeking the hearing shall
be stricken.

(d) Rehearings En Banc.

(1) Generally. A rehearing en banc may be ordered by a
district court of appeal on its own motion or on motion of a party.
Within the time prescribed by rule 9.330, a party may move for an
en banc rehearing solely on the grounds that the case or issue is of
exceptional importance or that such consideration is necessary to
maintain uniformity in the court’s decisions. A motion based on any
other ground shall be stricken. A response may be served within 15
days of service of the motion. A vote will not be taken on the motion
unless requested by a judge on the panel that heard the proceeding,
or by any judge in regular active service on the court. Judges who
did not sit on the panel are under no obligation to consider the
motion unless a vote is requested.

(2) Required Statement for Rehearing En Banc. A
rehearing en banc is an extraordinary proceeding. In every case the
duty of counsel is discharged without filing a motion for rehearing
en banc unless 1 of the grounds set forth in (d)(1) is clearly met. If
filed by an attorney, the motion shall contain either or both of the
following statements:

I express a belief, based on a reasoned and studied
professional judgment, that the case or issue is of exceptional
importance.

Or

I express a belief, based on a reasoned and studied
professional judgment, that the panel decision is contrary to
the following decision(s) of this court and that a consideration
by the full court is necessary to maintain uniformity of
decisions in this court (citing specifically the case or cases).

(3) Disposition of Motion for Rehearing En Banc. A
motion for rehearing en banc shall be disposed of by order. If
rehearing en banc is granted, the court may limit the issues to be
reheard, require the filing of additional briefs, require additional
argument, or any combination of those options.

Committee Notes

1982 Amendment. This rule is patterned in part after the en
banc rule of the United States Court of Appeals for the Fifth and
Eleventh Circuits. The rule is an essential part of the philosophy of
our present appellate structure because the supreme court no
longer has jurisdiction to review intra-district conflict. The new
appellate structural scheme requires the district courts of appeal to
resolve conflict within their respective districts through the en banc
process. By so doing, this should result in a clear statement of the
law applicable to that particular district.

Subdivision (a) provides that a majority vote of the active and
participating members of the district court is necessary to set a
case for hearing en banc or rehearing en banc. The issues on the
merits will be decided by a simple majority of the judges actually
participating in the en banc process, without regard to recusals or a
judge’s absence for illness. All judges in regular active service, not
excluded for cause, will constitute the en banc panel. Counsel are
reminded that en banc proceedings are extraordinary and will be
ordered only in the enumerated circumstances. The ground,
maintenance of uniformity in the court’s decisions, is the equivalent
of decisional conflict as developed by supreme court precedent in
the exercise of its conflict jurisdiction. The district courts are free,
however, to develop their own concept of decisional uniformity. The
effect of an en banc tie vote is self-explanatory, but such a vote does
suggest that the matter is one that should be certified to the
supreme court for resolution.

Subdivision (b) provides that hearings en banc may not be
sought by the litigants; such hearings may be ordered only by the
district court sua sponte.

Subdivision (c)(1) governs rehearings en banc. A litigant may
apply for an en banc rehearing only on the ground that intra-
district conflict of decisions exists, and then only in conjunction
with a timely filed motion for rehearing under rule 9.330. The en
banc rule does not allow for a separate motion for an en banc
rehearing nor does it require the district court to enter a separate
order on such request. Once a timely motion for rehearing en banc
is filed in conjunction with a traditional petition for rehearing, the 3
judges on the initial panel must consider the motion. A vote of the
entire court may be initiated by any single judge on the panel. Any
other judge on the court may also trigger a vote by the entire court.
Nonpanel judges are not required to review petitions for rehearing
en banc until a vote is requested by another judge, although all
petitions for rehearing en banc should be circulated to nonpanel
judges. The court may on its own motion order a rehearing en banc.

Subdivision (c)(2) requires a signed statement of counsel
certifying a bona fide belief that an en banc hearing is necessary to
ensure decisional harmony within the district.

Subdivision (c)(3) is intended to prevent baseless motions for
en banc rehearings from absorbing excessive judicial time and
labor. The district courts will not enter orders denying motions for
en banc rehearings. If a rehearing en banc is granted, the court
may order briefs from the parties and set the case for oral
argument.
1992 Amendment. Subdivision (c)(3) was amended to correct
a linguistic error found in the original subdivision.

Court Commentary

1994 Amendment. The intent of this amendment is to
authorize courts sitting in subject-matter divisions to have cases
that are assigned to a division decided en banc by that division
without participation by the regular active judges assigned to
another division. The presumption is that en banc consideration
will usually be limited to the division in which the case is pending.
However, recognizing that in exceptional instances it may be
preferable for the matter under review to be considered by the whole
court, the case can be brought before all regular active judges by
the chief judge or by an affirmative vote of three-fifths of the regular
active judges on the whole court. Once the matter is before the
whole court en banc, a vote on the merits will be by a majority of
the regular active judges as now provided in rule 9.331.