To specify that a period should be calculated by counting all intermediate days, including weekends or holidays, the Rules used the term “calendar days.” Rule 26(a) now takes a “days-are-days” approach under which all intermediate days are counted, no matter how short the period.Accordingly, “7 calendar days” in subdivision (b) is amended to read simply “7 days.” The Appellate Rules Committee made only one change to Rule 26(a) after publication and comment: Because the Committee is seeking permission to publish for comment a proposed new Rule 1(b) that would adopt a FRAP-wide definition of the term “state,” the Committee decided to delete from Rule 26(a)(6)(B) the following parenthetical sentence: “(In this rule, ‘state’ includes the District of Columbia and any United States commonwealth, territory, or possession.)” That change required the corresponding deletion—from the Note to Rule 26(a)(6)—of part of the final sentence (the deleted portion read “, and defines the term ‘state’—for purposes of subdivision (a)(6)—to include the District of Columbia and any commonwealth, territory or possession of the United States.The granting of a stay and the length of the stay remain within the discretion of the court of appeals.
The amendment conforms Rule 41(a) to the amendment made to Rule 40(a).
Notes of Advisory Committee on Rules—1994 Amendment .
Amended paragraph (1) provides that the filing of a petition for panel rehearing, a petition for rehearing en banc or a motion for a stay of mandate pending petition to the Supreme Court for a writ of certiorari stays the issuance of the mandate until the court disposes of the petition or motion.
The provision that a petition for rehearing en banc stays the mandate is a companion to the amendment of Rule 35 that deletes the language stating that a request for a rehearing en banc does not affect the finality of the judgment or stay the issuance of the mandate.
The existing rule provides that the mandate issues 7 days after the time to file a petition for panel rehearing expires unless such a petition is timely filed.
The Supreme Court has established conditions that must be met before it will stay a mandate. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. Several substantive changes are made in this rule, however.
The Committee's objective is to treat a request for a rehearing en banc like a petition for panel rehearing so that a request for a rehearing en banc will suspend the finality of the court of appeals’ judgment and delay the running of the period for filing a petition for writ of certiorari.
Because the filing of a petition for rehearing en banc will stay the mandate, a court of appeals will need to take final action on the petition but the procedure for doing so is left to local practice.
If, however, the court believes that it would be inappropriate to delay issuance of the mandate until disposition of the motion for a stay, the court may order that the mandate issue immediately. The amendment changes the maximum period for a stay of mandate, absent the court of appeals granting an extension for cause, to 90 days.
The presumptive 30-day period was adopted when a party had to file a petition for a writ of certiorari in criminal cases within 30 days after entry of judgment.
The old rule required the party to give notice to the other parties; the amendment merely requires the party to provide the court with evidence of having done so.