Today, the plaintiffs in Kiobel v. Royal Dutch Petroleum Co. filed a second petition for rehearing en banc.  The previous petition was denied on February 4, 2011.

The renewed petition is based on a procedural argument.  Under the Second Circuit’s Internal Operating Procedure 35.1(b), all active judges are entitled to vote on whether a case should be heard en banc, and the determination of “active” is made on the date of entry of the en banc order.  The newest member of the court, Judge Raymond Lohier, was sworn in before the February 4 order was issued.  But his name is not listed on the order, indicating that he may not have been polled.

Given that the court split 5-5 on the question of rehearing en banc, Judge Lohier could provide the deciding vote.