The nostra sponte en banc poll, predicated on the rationale set forth in the dissent, did not succeed. The majority opinion therefore stands.I was led to Judge Pooler's concurrence in denial of en banc rehearing by a link at How Appealing, where Mr. Bashman was struck by these remarks:
Opinions dissenting from denial of rehearing en banc2 are not uncommon in this Circuit. They are nonetheless oddities. When such an opinion is filed, there is an extant panel decision resolving the appeal. The active judges declined to revisit that decision en banc. The panel decision is therefore the Court's decision. Other judges may have views on the matter, but the case is not before them, and what they may say about it has as much force of law as if those views were published in a letter to the editor of their favorite local newspaper.No, tell us what you really think, Judge Pooler -- don't pull your punches!
Yet the unsuccessful request for an en banc rehearing becomes an occasion for any active judge who disagrees with the panel to express a view on the case even though not called upon to decide it. By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them. This amounts to an exercise in free speech rather than an exercise of any judicial function.
... So in oral argument, do I venture "vostre sponte," or stick with "on your own motion"? That's an easy call.