3d Cir. I.O.P. 9.5

9.5.1 It is presumed that a petition for rehearing before the panel or suggestion

for en banc rehearing filed by a party as provided by Fed.R.App.P. 40(a)

or 35(b) requests both panel rehearing and rehearing en banc, unless the

petition for panel rehearing under Rule 40(a) states explicitly that it does

not request en banc rehearing under Rule 35(b).

9.5.2 When a petition for rehearing is filed, a copy of the petition is transmitted

by the clerk to each member of the panel which heard and decided the case

and to the other active judges of the court with a request that they respond

to the authoring judge if they desire rehearing or an answer. When the

author is not a member of the court, the c lerk requests that responses be

directed to the ranking judge of the majority. Any member of the panel

majority may direct the clerk to request an answer.

9.5.3 Pursuant to 28 U.S.C. Section 46(c), only active judges of this court may

vote for rehearing en banc. Therefore, rehearing en banc shall be ordered

only upon the affirmative votes of a majority of the judges of this court in

regular active service who are not disqualified.

9.5.4 An active judge who does not communicate with the authoring judge

concerning rehearing within 10 calendar days after the date of the clerk's

letter transmitting the petition for rehearing is presumed not to desire

rehearing en banc or that an answer be f iled. In death penalty cases, the

times set forth herein may be reduced pursuant to Local Appellate Rule

Misc. 111.7(b).

9.5.5 If, during the 10 day period for circulation of petitions for rehearing, one

judge has timely voted for rehearing, another judge may obtain an

extension of time to consider en banc rehearing by circulating a letter

asking that the time for voting be extended for a period not to exceed 5

working days beyond the 10 day time period. This request results in an

automatic e xtension. Irrespective of the number of such requests, the

voting time automatically is extended this one period only, unless the

chief judge, upon application, grants a further extension of time. In death

penalty cases, the times set forth herein may be reduced pursuant to

Local Appellate Rule Misc. 111.7(b).

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9.5.6 If four active judges vote to request an answer to the petition or if there are

a total of four votes for an answer or for rehearing, provided that there is

at least one vote for an answer, the authoring judge enters an order

directing such an answer within 14 calendar days from the date of the

order. The clerk forwards the answer to the active judges with the request

that they notify the authoring judge within 10 calendar days if they vote to

grant the petition. A judge who does not desire rehearing is not expected

to respond. Copies of the answer are sent as a courtesy to any senior judge

or visiting judge who was a member of the panel which heard and decided

the case. In death penalty cases, the times set forth herein may be reduced

pursuant to Local Appellate Rule Misc. 111.7(b).

9.5.7 The authoring judge enters an order denying rehearing before the panel,

and denying rehearing en banc if a majority of the active judges who are

not disqualified, does not vote for rehearing. Separate orders may be

entered if appropriate. When the panel grants a petition for rehearing and

a petition for rehearing en banc is also pending, the judge who enters the

order granting panel rehearing notifies the active judges of the vacatur of

the panel opinion, and all action on the petition for rehearing en banc is

suspended. Following panel rehearing, the authoring judge notifies the

active judges of the disposition and whether any further vote on the

petition for rehearing en banc is required.

9.5.8 If there is a dissent from the denial of rehearing and no dissenting opinion

is filed, a notation will be added to the dispositive order, at the affirmative

request of the dissenting judge, that "Judge would grant rehearing by

the court en banc." Any active judge may file an opinion sur denial of the

petition and direct its publication.

9.5.9 If a majority of the active judges of the court who are not disqualified votes

for rehearing en banc, the chief judge enters an order which grants

rehearing as to one or more of the issues, vacates the panel's o pinion in

full or in part and the judgment entered thereon, and assigns the case to the

calendar for rehearing en banc.