The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA6006306FE/$file/recall_enbanc.pdf?openelement
I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member "in banc panel." Ed Hartnett Seton Hall
