dissenting.
I hereby dissent from the order and opinion of the majority in the instant case for the reasons expressed by Judge Moore’s dissent in In re Lewis Williams, Jr.
No. 04-3044
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEWIS WILLIAMS, JR., et al., Plaintiffs-Appellants
v.
ROBERT TAFT, et al., Defendants-Ap-pellees
*817Filed: January 15, 2004
AMENDED ORDER2
Before: BOGGS, Chief Judge; KENNEDY, MARTIN, SUHRHEINRICH, BAT-CHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, and ROGERS, Circuit Judges.
This matter comes before the court upon the petition of the plaintiffs-appellants for initial hearing en banc of case No. 04-3044 and a motion for stay of execution, and the motion of the defendants-appellees for dismissal of the appeal.
A majority of the non-reeused judges in regular active service having voted to grant the petition for hearing en banc, the petition is GRANTED and the appeal is referred to the en banc court for further consideration.
Less than a majority of the court having voted in favor of either the motion to dismiss the appeal or the motion to stay execution, those motions áre hereby DENIED.
CLAY, Circuit Judge, dissenting, joined by MARTIN, DAUGHTREY, MOORE, and COLE, Circuit Judges.
I dissent from the order denying the motion to stay execution in Williams v. Taft, No. 04-3044, because the vote was illegal under 28 U.S.C. § 46(c). Section 46(c) provides, in relevant part, that an en banc court “shall consist of all circuit judges in regular active service ..., except that any senior circuit judge of the circuit shall be eligible ... to participate ... as a member of an in banc court reviewing a decision of a panel of which such judge was a member.” 28 U.S.C. § 46(c) (emphasis added). In other words, the statute expressly circumscribes a senior circuit judge’s ability to participate in an en banc proceeding by limiting that participation to the review of the panel’s decision from which the en banc review arose. Here, all that is presently before the en banc court is a motion to stay Williams’ execution, not the merits of the preceding panel decision. Accordingly, the statute does not permit Judges Kennedy and Suhrheinrich to participate in the vote on the motion to stay. To the extent the Sixth Circuit Rules, the Sixth Circuit Internal Operating Procedures or internal Court Rules might be interpreted to grant my two colleagues the right to vote, 28 U.S.C. § 46(c) is paramount. This misapplication of the statute has resulted in an outcome contrary to law inasmuch as the requested stay would have been granted in the absence of the votes cast by Judges Kennedy and Suh-rheinrich. Moreover, this unlawful denial of the motion to stay has eviscerated the results of the poll of the active judges granting en banc review. Without a stay, the en banc review authorized by § 46(c) will never take place.
Nos. 04-3044 and 04-3066
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN GLENN ROE, Plaintiff-Appellant
v.
ROBERT TAFT, Governor, et ah, Defendants-Appellees
Filed: January 30, 2004
ORDER
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, *818MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, and COOK, Circuit Judges.
A majority of the non-recused judges in active service having voted sua sponte to reconsider and rescind the order of January 13, 2004, granting hearing en banc in Case No. 04-3044, all pending motions and filings are referred in the first instance to the assigned panel, for such action as it finds appropriate.
IT IS SO ORDERED.
. This order was initially entered on January 13, 2004. It was amended on January 15, 2004 to reflect the joinder in Judge Clay’s dissenting opinion of the several judges noted as having done so. In all other respects, the amended order is identical to the initial order.