Internal Operating Procedures - page 13

8
(b) Procedure.
(1)
Participation.
(A) Judges in regular active service may participate in a vote for en banc review,
provided their vote is submitted within the times prescribed below. Whether or not
an eligible Judge participated in the vote, all Judges serving in regular active service
at the time of the vote may participate in consideration of the en banc matter. A
Senior Judge may not vote on whether to hear a case en banc, and may elect to
participate in consideration of an en banc matter only if the Judge was a member of
the underlying panel being reviewed by the en banc court, or if the Judge retired and
thus became a Senior Judge after having voted on the en banc matter.
(B) A Judge appointed to the Court after a case has been selected for en banc review
may participate in that consideration provided oral argument (or conferencing without
oral argument) has not taken place prior to the appointment of the Judge. The Clerk
shall promptly inform any newly appointed Judge of the time and place of any en
banc oral argument or conferencing scheduled to take place after appointment of the
Judge, and the Judge may participate in any such consideration if available to do so,
but if not so available, the Judge shall not be eligible to participate in the decision, or
any motion for reconsideration.
(C) A Judge who elects recusal from en banc consideration is not part of the en banc
voting or panel review from the point of recusal forward.
(D) Assignment of a case for en banc review generally is reflected on the public
docket.
(2)
Request for En Banc Review.
(A) At the Request of a Judge.
A screening Judge in active service who requests en banc review, or a Judge in active
service requesting en banc consideration of a matter circulating prior to issuance
(either by a single Judge or by a panel), notifies all Judges and submits to CLS a
memorandum in support of the request. CLS then circulates to all Judges serving in
regular active service formal notice of the request, the accompanying memorandum,
and a vote sheet. The formal notice (1) advises that the request will fail unless,
during the voting period of 5 working days, at least a majority of the Judges support
the request, (2) advises that the case will not proceed to any pending disposition until
the expiration of the voting period, and (3) specifies the last day of the voting period.
(i) If a majority of the eligible Judges do not support the request during the 5-
day voting period, the case proceeds to disposition and no order or
statement is issued and no docket notation is made regarding the request
for en banc review.
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