When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.
So the vitriol -- from the panel opinion, at least -- won't be cited as precedent. We'll see how the en banc court sorts this one out. I'd be stunned if the result doesn't turn out to be split.
Stay tuned.
