That’s what I hear, third-hand (via Chris Geidner (Law Dork)) about what Judge Walker supposedly said at a hearing today; he was reporting that such an order for en banc review will be issued this afternoon. I blogged about the panel decision here.
UPDATE: Geidner reports that “A spokesperson for the Plaintiffs’ legal team confirmed that Judge Walker said that he had received a call from the Ninth Circuit that the en banc order would be forthcoming on the docket.”
FURTHER UPDATE: Apparently not — here’s what seems to be the relevant order:
A judge of this court has called for a vote to determine whether this case will be reheard en banc under Federal Rule of Appellate Procedure 35(a). The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. —, No. 08-678 (Dec. 8, 2009).
The briefs shall be filed on or before December 24, 2009.
Thanks to Ben Sheffner (Copyrights & Campaigns) for the pointer.