It's always facially anomolous when you simultaneously read, as here, that (1) Judge X (on the panel) voted to grant the petition for rehearing en banc, and (2) that no one, including Judge X, asked for a vote on this same petition. In short, that Judge X wanted en banc review, and thought it appropriate, but didn't call for it.
This happens all the time: I'm not just picking on Judge Rawlinson. I know of no judge on the Ninth Circuit (though there may perhaps be some) who takes the position that an affirmative vote as a panel member on the petition for rehearing en banc intellectually compels a similar call for en banc review. Even though the two are exceptionally related. After all, if you vote to grant en banc review, why not actually cast that vote by calling for the review you've already said you think is warranted?
The answer, I think, is that en banc calls (as opposed to votes) are viewed as imbued with a practical limitation on the "ability" of the case to be taken en banc. Even if you think that the case should be taken en banc, a judge doesn't call for it if they don't think the votes are nearly there.
I mention this only because it's a strange -- though not outrageous (at all) -- practice. Generally, when we vote, we vote consistently. Sure, sometimes we may vote for Candidate X even though we prefer Candidate Y because we don't think Y would have the votes, and we prefer X to Z. Just remember that en banc votes aren't like that (ignore, for now, the related -- but different -- tactic of voting against en banc review even though you think it's meritorious because you believe that the ultimate vote on the merits would be unfavorable). If you call for en banc review and lose, there's no "Candidate Z": You merely lost the vote. It's like not voting for McCain in a two-person contest simply because you're convinced he'll never win. Something that we'd mock someone for doing (or saying). And yet we do that at the Ninth Circuit all the time.
So what we have here is, I believe, an administrative calculation by each of the judges that the cost of calling for an en banc vote isn't worth it if, in their estimation, the votes won't nearly be there to successfully take the case en banc. This isn't absurd as well; after all, the adoption of such a regime, if universally accepted, saves not only the time of other judges, but also your own, since now you don't have to respond to en banc calls of other judges, who similarly refrain from perceptionally unsuccessful en banc votes.
Still, it's somewhat surprising, I think, that the practice is (I believe) uniform. That, as far as I know, there's not a single judge who concludes -- perhaps merely on grounds of principle -- that if she's going to vote for en banc review at the panel stage, she's similarly going to call for en banc review thereafter. Since, after all, as to the merits, nothing's changed. And, alternately, that if she's not going to call for an en banc vote, she'll only vote to grant the petition for rehearing, not the petition for rehearing en banc.
I'm not saying that someone should adopt such a position, since I see the administrative upsides of a contrary "predict the votes" regime. I'm just surprised that someone hasn't; or, at a minimum, that the prevailing view is so uniformly adopted by the (often otherwise idiosyncratic) appellate judges.
