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View Diary: Morning Open Thread - Pruning Roses in the Dark (58 comments)

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  •  Answer appears to be "no." Rule 35 provides: (1+ / 0-)
    Recommended by:
    Otteray Scribe

    (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc....

    F.R.App.Proc. Rule 35

    While the rule does not explicitly restrict senior status judges from sitting, the restriction to active services judges on the initial petition would probably restrict their participation.

    There are various changes to this Rule to match jurisdictions (number or briefs required, etc.), but I do not see one that would implicate the question here in the DC Circuit.

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