Equality in Trial explains:
The Ninth Circuit is asking all the parties in SmithKline Beecham v. Abbott Laboratories to file briefs telling the court whether it should rehear the case en banc, with a larger panel of judges. The call apparently came from one or more judges on the court under a rule that allows any judge to call for rehearing on their own after the time expires for a party to ask for rehearing…
If rehearing en banc is ultimately granted after all briefs are filed, the three-judge panel’s initial decision will be wiped out and will not remain precedent. This likely means that the circuit court’s determination that sexual orientation discrimination warrants heightened judicial scrutiny will be reconsidered. The larger panel, 11 judges in the Ninth Circuit, could still reach that same holding in its final decision, however. State officials in Nevada and Oregon – two states that fall within the Ninth Circuit – have declined to defend their state bans on same-sex marriage, in part because of the SmithKline decision.
I’ve never heard of a Circuit Court voiding its own decision like this, but then I’m not a lawyer. Does this kind of thing happen often?