PETITIONS FOR EN BANC REVIEW STILL PENDING IN PFENNIG
Contrary to published reports that the 6th Circuit has denied the petition for en banc review in the Pfennig case, we have confirmed with the court that the full court has not yet decided if it will grant the petition for en banc review.
The 6th Circuit’s rule for en banc review differs from those in other circuits. When a party files a petition for en banc review, the petition is first considered by the original three-judge panel who issued the initial opinion. The panel may modify the original opinion, and, if left unsatisfied, petitioners may then re-file for en banc review for consideration by the full court. In Pfennig, the original three-judge panel modified their original opinion. The confusion may have been caused by footnote two in the modified opinion, which reads in part that the petition for en banc review is denied. This footnote represents only the decision of the original three-judge panel. It does not represent the opinion of the entire court.
The Defendants re-filed their petition for en banc review 14 days after the modified opinion was published, but the full court has not yet ruled on whether it will grant the petition.
The amici curie also filed motions to re-file their supplemental briefs in support of the Defendants’ petition for en banc review, but the court has already denied their motions.