2d Cir. IOP 40.1

(a) Judges Eligible to Request an En Banc Poll. Only an active judge of the court or a

senior judge who sat on the three-judge panel is eligible to request a poll of the active

judges to determine whether a case should be heard or reheard en banc.

(b) Judges Eligible to Vote in an En Banc Poll. Only an active judge may vote to

determine whether a case should be heard or reheard en banc and whether an en banc

panel, once constituted, should be dissolved. A judge’s status as an active or senior

judge for the purpose of an en banc poll is determined on the date of entry of the en

banc order.

(c) Judges Eligible to Participate in an En Banc Hearing or Rehearing. Only an active

judge or a senior judge who sat on the three-judge panel is eligible to participate in the en

banc hearing or rehearing. A judge’s status as an active or senior judge is determined on

the date of the hearing or rehearing en banc, i.e., on the date oral argument is heard or the

case is submitted.

(d) Judges Eligible to Participate in an En Banc Decision. Only an active judge or a senior

judge who either sat on the three-judge panel or took senior status after a case was heard

or reheard en banc may participate in the en banc decision. A judge who joins the court

after a case was heard or reheard en banc is not eligible to participate in the en banc

decision.