Now that en banc rehearing has been granted, what happens next? Paragraph (3) of the Circuit Advisory Committee Note to Ninth Circuit Rules 35-1 to 35-3 provides the answer:
(3) Grant of Rehearing En Banc. When the court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. The opinion of the three-judge panel shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
In this case, en banc rehearing was granted under Circuit Rule 35-3, which provides for a "limited en banc" court consisting of the Chief Judge plus 10 other judges selected at random by the clerk. The random selection is to take place on "the working day after" en banc rehearing is granted (here, Tuesday, February 17). The Ninth Circuit has 27 active judges, so, apparently, this means that the limited en banc panel might not include any of the members of the original three-judge panel (Judges Pregerson, Kleinfeld (who dissented), and Hawkins). It might also include judges who voted to deny the petition for en banc rehearing (which explains why the vote tally is not disclosed).
It should take at least a few weeks for the newly-chosen 11-judge en banc panel to decide whether to order oral argument or further briefing. Circuit Rule 35-3 also authorizes, "[i]n appropriate cases," full-court rehearing after limited en banc rehearing. Wal-Mart is likely to seek full-court rehearing, and/or U.S. Supreme Court review, if the class certification order is again affirmed, so this case will probably be with us for a long time to come.