Fifth Circuit’s En Banc Procedures Spark Unusual Voting Footnotes in Recent Cases

In May 2025, the Fifth Circuit panel in Ethridge v. Samsung SDI initially found personal jurisdiction, but after a Seventh Circuit decision the panel reversed itself and withdrew its opinion, issuing a four-page substitute. The December order not only granted the panel rehearing but also documented an en banc poll that failed 11-5, strangely leaving Judge Oldham’s vote unrecorded because the panel retained control. Legal analysts note that the poll’s timing relative to the Seventh Circuit ruling and the omission of a judge’s vote are unprecedented.

A month later, the court’s en banc order in Holberg v. Guerrero included a footnote naming ten judges without clarifying their positions, despite an 18-judge panel being evenly divided. The footnote’s lack of “joined” language and the placement of Judge Oldham’s opinion as the lead piece further blur the line between majority, plurality, and tie outcomes. Critics suggest these irregularities could affect how future Fifth Circuit en banc votes are conducted and reported.