General Order 5.5: Procedure After Supplemental Briefing

a. Memoranda

Any judge may circulate memoranda in response to an en banc call within 21 days after: (1) the conclusion of all supplemental briefing by the parties pursuant to G.O. 5.4.c.2 and .3, or (2) the calling judge’s circulation of a memorandum in support of the en banc call, whichever is later. (Rev. 9/17/14)

b. Voting

When the exchange of memoranda has been completed, the En Banc Coordinator shall notify all active judges to vote. No judge shall circulate further correspondence on the case after that notice. A judge's failure to vote shall be considered a "no" vote. Unless otherwise ordered, each judge shall cast a vote within 7 days of the notice to vote. A judge may change his or her vote if accomplished prior to the expiration of the voting period. Upon the expiration of the voting period, the En Banc Coordinator shall notify the judges of the result and the vote tally. (Rev. 1/13/20)

c. No Majority Favoring En Banc Consideration

If the call fails to obtain a majority, the panel shall resume control of the case and no further en banc action is required.

d. Majority Favoring En Banc Consideration

If a majority of the judges eligible to vote on the en banc call votes in favor of en banc consideration, the Chief Judge shall enter an order taking the case en banc pursuant to Circuit Rule 40-3 and vacating the three-judge panel opinion. The three-judge panel opinion shall remain vacated, subject to reinstatement by the en banc court. (Rev. 1/27/04; 12/1/24)

e. Recusals

It is left to the discretion of the individual judge as to whether that judge’s recusal is noted in the order either denying or granting en banc review. (New 10/4/06)