(Dissenting).
The convening of this en banc court is unfortunate, for It conducts its deliberations under the pall of two weighty errors, one of judgment and the other of law.
On October 14, 2004, a duly constituted panel of this court promulgated its opinion rejecting petitioners’ claims, and issuing a judgment to said effect. Thereafter, they petitioned for rehearing by the panel, and in the alternative, for en banc consideration. After due deliberations, on March 14, 2005 the panel that heard the appeal unanimously voted to rehear the case, and consistent therewith, contemporaneously withdrew the panel opinion and judgment. Thus, the pending en banc request was mooted. The panel additionally ordered *33the United States and petitioners to file briefs on specific issues, set a date for oral argument, and invited intervention by ami-cus curiae. Both the United States and petitioners filed their briefs by April 14, 2005, and several amici intervened and filed briefs by April 22, 2005.
Thereafter, on April 25, 2005, motu pro-pio, a majority of the active judges of the court, in an action which is unprecedented in my judicial experience, quashed the duly constituted three-judge panel, and decided that the matter should be considered by an expanded seven-judge en banc court. Although I do not question the legal authority of the majority of this court to so act, I believe that given the juncture of this appeal when it took this anomalous course, its decision demonstrates poor judgment and shortsightedness, particularly when this error was compounded by the inclusion of a senior judge who does not meet the requirements of 28 U.S.C. § 46(c)(1) as a member of the en banc court. The traditional practice referred to in the majority’s opinion is totally inapposite to the procedural circumstances of the instant case, and, in any event, circuit tradition cannot eliminate our obligation to comply with statutory law.
It is clear that the decision of the rehearing panel to withdraw its decision and judgment preceded the en banc order. Thus, the senior judge in question does not qualify to sit on the en banc court, as the unambiguous language of the statute allows participation of a senior judge in an en banc proceeding only when it is “reviewing a decision of a panel of which such judge was a member.” Id. After the panel withdrew its opinion and judgment, it had before it for review only the district court opinion from which the appeal had been taken. Had the matter been allowed to run its course without interference by the en banc order, it is the appeal from the district court opinion that the rehearing panel would have passed upon. Thus, it is that opinion now before the en banc court, not “a decision of a panel of which [the senior judge] was a member.” Id.
To my knowledge, no circuit has held otherwise. While the Seventh Circuit has interpreted Section 46(c) to permit a senior judge who sat on a panel to participate in en banc review granted before the original panel decision ever issued, the procedural setting of that case is distinct from the one currently before us. See United States v. Hudspeth, 42 F.3d 1013 (7th Cir.1994). In Hudspeth, the Seventh Circuit limited its broad interpretation of “reviewing a decision of a panel” to the case before it in which the panel had prepared and agreed on a decision, which “was all set to be released when the grant of rehearing en banc intercepted it.” Id. at 1014. In such a case, the court could see “no rational difference, so far as participation by a senior judge is concerned, between that case and one in which rehearing en banc is granted after the panel decision is issued. In both cases, the panel has finalized its decision, although in only one has the decision been issued.” Id. In the instant case, however, the panel has clearly not finalized its decision, as it chose to withdraw it, vacate the corresponding judgment, and schedule oral arguments in order to aid its reconsideration of the merits.
A narrower interpretation of Section 46(c) is required by the instant circumstances, and supported by the legislative history. That section was originally amended in 1963 to provide that a senior judge “shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat ... at the original hearing thereof.” See S. Rep. 97-275, 97th Cong., 1st Sess., 1982 U.S.C.C.A.N. 11, at 37 (emphasis added). *34In Allen v. Johnson, 391 F.2d 527 (5th Cir.1968), the Fifth Circuit correctly interpreted this language to permit the participation in en banc of a senior judge who had participated in the panel hearing, even though no panel decision had yet been issued. The statutory language, however, was removed in 1978 due to administrative concerns, only to be replaced in 1982 in order to “permit a senior judge sitting on an original hearing panel to participate in en banc review of that panel’s decision.” Id. (emphasis added). Although the Senate Report acknowledged the potential value of a senior judge’s contributions, it chose not to replace the language requiring the senior judge to have participated in the “panel hearing,” but instead required the judge’s participation in the “panel decision.”
In my view, we must draw the same distinction here. While a senior judge participated in the panel hearing of this case, panel rehearing had been granted and there is currently no panel decision available for the en banc court to review. I therefore vote against the senior judge’s participation in en banc review of the decision below.