Internal Operating Procedures - page 15

10
Judges. Any participating Judge intending to write a separate statement
must notify the participating Judges of such intent within 5 working
days from the date of circulation of the denial order and must submit
such separate statement to the participating Judges no later than 10
working days after the date of circulation of the denial order. Any
adjustments to the denial order will be made promptly and any
adjustment to any separate statement must be made within the same
amount of time taken to adjust the denial order. If a separate statement
is not timely prepared, the denial order may be issued and any separate
statement may be issued at a later time and published with the denial
order; however, a separate statement may not be issued at all if not
prepared and issued within 10 days of the issuance of the dispositive
order unless an extension is granted by the Chief Judge for good cause.
(b) If within the 10-day voting period, at least a majority of the eligible
Judges vote to grant the motion, the motion for en banc consideration
is approved and the matter proceeds in accordance with Section
VII(b)(3), below.
(3)
En Banc Review Granted
. If en banc review is granted, the Clerk generally issues an
order to that effect and thereafter the Chief Judge, as presiding Judge, generally convenes
a conference or directs the Clerk to schedule oral argument, as appropriate (
see
Section
IV, above), to be followed by a conference. The senior Judge in the majority assigns
authorship responsibility. If there is no majority, the presiding Judge on the en banc
panel determines the consensus of the panel on how to proceed, and the panel so
proceeds.
(4)
Drafting and Issuance of En Banc Opinion or Order
.
(A) Drafting.
As soon as possible after drafting responsibility for the opinion is assigned,
and following agreement of the majority on the draft, the author Judge circulates the draft
decision to all participating Judges for comment.
(B) Original Circulation.
By 5:00 p.m. on the fifth working day after the proposed
opinion or order originally is circulated, any substantive comments are sent to all
participating Judges and any Judge who intends to write a separate opinion or statement
so notifies the en banc panel. Such separate statement is then circulated to the other
participating Judges as soon as practicable but no later than 5:00 p.m. on the 10th
working day after the day on which the proposed en banc order or opinion was originally
circulated.
(C) Re-Circulation.
The majority decision may be modified in response to any proposed
separate statement and, whenever substantively modified, will be re-circulated to the en
banc panel. Within 5 days of the re-circulation, any Judge who intends to write or
modify a separate opinion or statement so notifies the en banc panel. Such separate
statement is then circulated to the en banc panel as soon as practicable but no later than
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