Rule 6 [En Banc Hearings]

(a) This Court may consider and decide a case en banc when a majority of the members of this Court determine that consideration and determination by the full Court is warranted based upon the recent or pending release of an opinion which conflicts with a prior opinion of this Court that has not been reversed or disapproved by the Supreme Court. An en banc proceeding may be initiated by the recommendation of a majority of the judges on the panel issuing or preparing the conflicting opinion. Upon receipt of such recommendation, the presiding judge shall poll the members of this Court, and if a majority of those members who are not disqualified from deciding the case vote to hold an en banc hearing, the presiding judge shall convene such hearing at a convenient time and place.

(b) Absent exceptional circumstances, all members of this Court shall participate in the en banc hearing unless disqualified for conflicts. The hearing shall proceed as scheduled notwithstanding the unavoidable absence of one or more judges. Any judge who is unavoidably absent from the hearing may participate in the determination of the case by reviewing the tape of the oral argument.

(c) If an opinion which conflicts with a prior opinion of this Court has been issued fewer than thirty (30) days before the issuing panel makes a recommendation for an en banc hearing, the issuing panel shall vacate and withdraw the conflicting opinion, pending the full Court’s determination on whether to consider the case en banc. If the en banc hearing is called, the conflicting opinion shall not be issued. If not more than thirty (30) days has elapsed since the issuance of the earlier of the conflicting opinions, the panel issuing the earlier opinion shall also vacate and withdraw that opinion pending reconsideration by the full Court.

(d) After hearing and consideration en banc, the judgment of the majority of the members of this Court participating in the case shall be entered as the judgment of this Court.