General Order 5.1: Definitions and General Provisions

a. Definitions

- For purposes of this Chapter:

1. Full Court

- means all active judges.

2. En Banc Court

- means that number of judges, greater than 3, established

by rule of the Court, which shall hear and decide cases taken en banc as

provided by statute, rule, or in these General Orders.

3. Judge eligible to vote

- means any active judge who is not recused or

disqualified. Upon entry to active service, a judge may choose to recuse

from voting on en banc calls for a transition period specified by the judge.

When the transition period, if any, expires, the judge will become eligible to

vote, including voting on calls in which the voting period has already

commenced. If the pool of judges eligible to vote changes during the vote

for any reason, including assumption of senior status, new appointment,

recusal, disqualification, retirement, or death, the vote will be discontinued, and a new voting period established. Notice of recusal or disqualification shall be given to the full Court. No senior judge is eligible to vote on whether to take a case en banc. (Rev. 1/1/04; 9/17/14; 9/8/22)

4. Judge eligible to serve on the En Banc Court

- means any active or senior judge who is not recused or disqualified and who entered upon active service prior to the date the Court is drawn. Senior judges shall not serve on an en banc court except: (i) a senior judge who was a member of the three-judge panel assigned to the case being heard or reheard en banc may elect to be eligible to be selected as a member of the en banc court. Any senior judge who elects to be eligible shall notify the Clerk’s Office prior to the date the panel is drawn; (ii) a senior judge who takes senior status while serving as a member of an en banc court may continue to serve until all matters pending before that en banc court, including remands from the Supreme Court, are finally disposed of. (Rev. 7/1/03; 3/21/18)

5. En Banc Coordinator

- means an active or senior judge appointed by the Chief Judge to perform the duties set forth in this Chapter.

6. En Banc Call

- means a request by a judge or panel that a vote be taken

to determine whether a case be heard or reheard by an en banc court.

b. General Provisions

1. Judicial Participation

Each judge selected for the en banc court shall make every reasonable effort to sit on the en banc court, but if unable to sit, the judge shall notify the Clerk as promptly as possible, so that the judge may be replaced on the en banc court. If a judge becomes available after notifying the Clerk of inability to sit, that judge shall notify the Clerk of his or her availability and shall sit on the en banc court, unless a replacement judge has already been selected, in which case the replacement judge shall sit on the en banc court. In such event, the originally-selected judge shall be placed back in the pool of judges available to be drawn for service.

If a judge becomes unavailable to sit on the en banc court by reason of death, disability, recusal, or retirement from the Court, a replacement judge shall be selected.

If alternate judges were selected in accordance with Circuit Rule 40-3 at the time the en banc court was originally selected, the replacement judge shall be the designated alternate judge in the order as identified in the original selection process, provided that the alternate judge is available and still eligible to sit on the en banc court pursuant to G.O. 5.1.a.4. If no alternates were drawn, or if there are no drawn alternates available and eligible to serve on the en banc court, then the Clerk shall draw a replacement from the judges eligible to serve on the en banc court in accordance with Circuit Rule 40-3. Once a replacement judge is selected, the Clerk will advise the parties.

All members of the Court, senior and active, and visiting judges who participated in the panel decision, shall be kept informed of en banc proceedings, including all en banc calls, responsive memoranda, and votes, until a case is taken en banc or returned to the panel.

After a case has been taken en banc, only those judges participating in the en banc court shall be included in the distribution of memoranda, proposed opinions, and other communications regarding en banc proceedings. It is permissible for judges on en banc courts to discuss and disclose information concerning such cases with other judges not assigned to the en banc court. (Rev. 6/23/10; 6/19/19; 12/1/24)

2. Duties of the En Banc Coordinator

The En Banc Coordinator shall supervise the en banc process, including time schedules provided in this Chapter; shall circulate periodic reports on the status of each case under en banc consideration; may, for good cause, extend, suspend, or compress the time schedules provided in this Chapter; may designate another judge to perform all or part of the En Banc Coordinator's duties during the coordinator's absence; may suggest, for any particular case, a modification or suspension of the provisions of this Chapter; and may for good cause suspend en banc proceedings. (Rev. 7/1/02)

3. Vote Tallies

The En Banc Coordinator or the Clerk’s office will record the en banc votes and circulate the final tally to the Court. Orders rejecting or accepting cases for en banc consideration shall not specify the vote tally. Any judge eligible to vote may direct that his or her dissent from a failure to accept a case for en banc consideration be incorporated in the order. (Rev. 9/17/14)

4. Duties of Panel Members

The following persons shall be responsible for the distribution of the panel recommendation pursuant to G.O. 5.4.b and for orders denying a petition for rehearing en banc if no timely en banc call is made or if an en banc call fails to receive a majority vote:

(a) The author of a majority disposition, when an active or senior judge of this Court, or

(b) The presiding judge of the panel, when the author is a visiting judge. (Rev. 9/17/14)

5. Computing and Extending Time

FRAP 26 applies in computing any period of time specified in this Chapter. Until a case is taken en banc or returned to the panel, any request by a judge for an extension of time shall be made in writing or by electronic mail to the En Banc Coordinator with copies to all judges prior to the expiration of the relevant time period. The En Banc Coordinator will ordinarily grant a timely request for an extension of time absent exigent circumstances. The Clerk’s Office, in addition to the En Banc Coordinator, is authorized to grant a timely request for an extension of time if (a) the calling party and the panel agree to the request, (b) the request is made on the last day of the memo exchange period prior to the commencement of voting, or (c) a request has been made and there has been no objection within 24 hours of the request. If there is an objection, then the request will be sent to the En Banc Coordinator for a decision. A judge who makes an untimely request for an extension of time to request G.O. 5.4.b.1 notice or to call for an en banc vote should confer with the affected panel and attempt to resolve the matter in a collegial manner; however, no untimely request for an extension of time to request G.O. 5.4.b.1 notice or to call for an en banc vote will be granted without the consent of the affected panel. (Rev. 9/17/14; 10/26/21; 3/23/22; 6/25/25)

6. Notification to En Banc Coordinator

Judges should direct copies of all en banc correspondence under this Chapter to the En Banc Coordinator and the Clerk of Court or any person the Clerk may designate until a final en banc vote is tallied.

7. Death Penalty Cases

En banc procedures in death penalty cases, when a date for execution has been set, are contained in Circuit Rule 22 and shall be supervised by the Capital Case Coordinator.

8. Stay of Mandate

Whenever an off-panel judge timely invokes the procedures set forth in this Chapter, the mandate shall automatically be stayed. (Rev. 10/26/21)