550
Opinion of the Court
Housing Authority v. Midkiff, 463 U. S. 1323, 1324 (1983) (Rehnquist, J., in chambers); see also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 249-250 (1944). In light of "the profound interests in repose" attaching to the mandate of a court of appeals, however, the power can be exercised only in extraordinary circumstances. 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3938, p. 712 (2d ed. 1996). The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.
The en banc majority asserted extraordinary circumstances justified its order recalling the mandate in Thompson's case because, "[b]ut for procedural misunderstandings by some judges of this court, an en banc call would have been made and voted upon at the ordinary time." 120 F. 3d, at 1048. As noted earlier, the original panel issued its decision denying habeas relief on June 19, 1996, and Thompson filed a petition for rehearing and suggestion for rehearing en banc on August 5, 1996. On January 17, 1997, the panel notified the full court of its intention to reject the suggestion. Id., at 1067 (Kozinski, J., dissenting). The panel reissued its earlier opinion with minor revisions on March 6, 1997. In the March 6 order, the panel also denied Thompson's petition for rehearing and rejected his suggestion for rehearing en banc. The panel observed that, although the full court had been advised of Thompson's suggestion, no judge in active service had requested a vote to rehear the case en banc within the time specified in the General Orders of the Ninth Circuit. App. 137.
It appears from Judge Kozinski's opinion that the following events also transpired. On March 12, 1997, an off-panel judge wrote to the panel, requesting an opportunity to make a belated call for a vote to rehear the case en banc. The judge stated that the panel's decision had been "circulated shortly before a law clerk transition" in the judge's chambers, and that "the old and new law clerks assigned to the
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