Operating Procedure 5: Hearings and Rehearings En Banc

(a) Request for Answer and Subsequent Request for Vote. If a petition for rehearing en banc is filed, a request for an answer (which may be made by any Seventh Circuit judge in regular active service or by any member of the panel that rendered the decision sought to be reheard) must be made within 14 days after the electronic filing of the en banc petition. If an answer is requested, the clerk shall notify the prevailing party that an answer be filed within 14 days from the date of the court's request. Within 14 days of the electronic filing of the answer, any judge entitled to request an answer, may request a vote on the petition for rehearing en banc.

(b) Request for Vote When No Answer Requested. Ordinarily an answer will be requested prior to a request for a vote. A request for a vote on the petition (which may be made by any judge entitled to request an answer) must be made within 14 days from the electronic filing of the petition. If a vote is so requested, the clerk shall notify the prevailing party that an answer to the petition is due within 14 days.

(c) Notification to File Answer. The judge who requests an answer pursuant to paragraph (a) or who requests a vote pursuant to paragraph (b) shall be responsible for having the clerk notify the prevailing party to file an answer to the petition.

(d) Voting.

(1) Majority. A simple majority of the voting active judges is required to grant a rehearing en banc.

(2) Time for Voting. Judges are expected to vote within 14 days of the request for a vote or within 14 days of the filing of the answer pursuant to the request for a vote, whichever is later.

(e) Preparation of Order. After the vote is completed, the authoring judge, or the presiding judge of the panel if the author is a visiting judge, will prepare and send to the clerk an appropriate order. Minority positions will be noted in the denial of a petition for rehearing en banc or the denial of a petition for rehearing unless the judges in the minority request otherwise. Minority positions will not be noted in orders granting a rehearing or rehearing en banc unless so requested by the minority judge. An order granting rehearing en banc should specifically state that the original panel's decision is thereby vacated.

(f) Participants in Rehearings En Banc. Only Seventh Circuit active judges and any Seventh Circuit senior judge who was a member of the original panel may participate in rehearings en banc.

(g) Similar Procedures for Hearings En Banc. Similar voting procedures and time limits shall apply for requests for hearings en banc except that a staff aNorney may circulate such a request.

(h) Distribution of Petitions. Petitions for rehearing that do not suggest rehearing en banc are distributed only to the panel. Petitions for rehearing en banc are distributed to all judges entitled to vote on the petition.

(i) Treated as Petition for Panel Rehearing. A petition for rehearing en banc will also be treated as a petition for rehearing by the panel.