Last week I summarized the Tenth Circuit's decision in Callahan v. Millard County -- a qualified immunity decision of which I was rather critical.
As expected, the defendants in the case filed a petition for rehearing en banc, and the Tenth Circuit panel swiftly ordered a response from the plaintiff by August 13. A response is not required absent an order of the court (as I know from bitter personal experience), but I wonder if an order requiring a response is virtually automatic where, as here, the panel's decision is divided.
Incidentally, in my earlier post on Callahan I noted that if the court granted a rehearing en banc, neither judge in the majority would participate in an en banc decision. That observation was most likely inaccurate, however -- while District Court Judge Murguia could not participate, Senior Judge Ebel, pursuant to 10th Cir. R. 35.5, may participate at his option.
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