[Ed. – This judge, unnamed in the sua sponte — “of his own volition” — move, wants an en banc review to reconsider what the three-judge panel came up with. Scott Johnson at Powerline suspects it may be Kozinski or Bybee, which seems like a good bet. Kozinski, in particular, is a very careful jurist. The court’s active judges would have to vote on whether to rehear the case. (It appears there are 25 of them.)]
The court filed an order this afternoon stating: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” In other words, no party moved for the rehearing; one of the court’s many judges did so on his own (i.e., sua sponte). I’m guessing it might be Judge Kozinski or Judge Bybee. I would love to hear from a knowledgeable court watcher on this point.
The Ninth Circuit has posted the order online here. The Ninth Circuit has also posted a media advisory explaining the en banc rehearing procedure. The sua sponte request for the court to vote on whether to rehear the case is unusual. Briefing on the question whether the court should rehear the case en banc is to be filed by the parties simultaneously next Thursday.
The Ninth Circuit is so unwieldy it doesn’t actually rehear cases en banc; it rehears them in enlarged panels drawn from the whole roster of regular active judges on the court and calls the enlarged panels en banc.
A list of Ninth Circuit judges is posted here. Only judges in regular active service on the court are to vote on whether the case is to be reheard.