#Halbig: Participation of Senior DC Circuit Justices in En Banc Review

There’s been some confusion about what role senior judges play in the en banc review.  After looking at the rules, it appears that senior judges do not get to vote on whether to take the case en banc, but if the case is taken en banc senior judges who were on the panel do get to participate in the decision of the case if the judge wants to do so. I’ve put the relevant parts of the rules in bold below:

If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The question now is whether there should be a rehearing en banc. On this question only active judges of the Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in order for it to be granted.
When rehearing en banc is granted, the Clerk enters an order granting the rehearing en banc and vacating the judgment by the original panel, either in whole or in part, as circumstances warrant. This order is posted on the Court’s web site and is published in the federal reporter system. An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish. The Court has followed a variety of procedures in conducting rehearing en banc. On occasion, only the original briefs have been considered; in other cases, the Court has requested supplemental briefs. The Court almost always hears oral argument in considering a case en banc.
The Court sitting en banc consists of all active judges, plus any senior judges of the Court who were members of the original panel and wish to participate. When the Court sits en banc with an even number of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or judgment under review, and it may publish the en banc Court’s divided views.

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