Order
After the court issued its opinion on July 2, 2010, a judge called for a vote on the judge’s suggestion of rehearing en banc. This procedure is appropriate under Fed.R.App. 35(a), because, although Rule 35 authorizes litigants to file petitions for rehearing en banc, it does not condition en banc consideration on the filing of a petition. This court regularly hears cases en banc, without a litigant’s petition, under the procedure established by Circuit Rule 40(e). A grant of rehearing en banc on the court’s own motion is equally permissible when the panel issues its opinion without a Rule 40(e) circulation.
A majority of the judges in active service have voted not to hear this appeal en banc. Judges POSNER, KANNE, WILLIAMS, and SYKES voted to hear the appeal en banc. Circuit Judge FLAUM did not participate in the consideration or decision of this case.