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Another Unusual Footnote In An En Banc Fifth Circuit Opinion

Something strange happened in these two cases.

Josh Blackman | 8.20.2026 3:40 PM

Over the years, I have written about many unusual and fractured voting splits on the en banc Fifth Circuit. An en banc case decided last week made me think of another en banc case from last year.

Ethridge v. Samsung SDI

Let's start with Ethridge v. Samsung SDI, a personal injury case about exploding batteries. In May 2025, a divided three-judge panel (Jones, Oldham, King) ruled that the district court had personal jurisdiction over the defendant. Judge Oldham wrote the panel opinion, joined by Judge King. Judge Jones dissented, finding the district court lacked personal jurisdiction. The Defendant filed petitions for panel rehearing and en banc rehearing. In December 2025, the Fifth Circuit issued a very unusual order with two components.

The first component indicates that the three-judge panel granted the petition for panel rehearing, withdrew the panel opinion, and issued a four-page substitute opinion.

Andrew S. Oldham, Circuit Judge:

IT IS ORDERED that the petition for panel rehearing is GRANTED. The court's prior panel opinion is WITHDRAWN, see Ethridge v. Samsung SDI Co., 137 F.4th 309 (5th Cir. 2025), and the following opinion is SUBSTITUTED therefor.

Now, the panel reversed itself and found that there was not personal jurisdiction. What caused the change? The Seventh Circuit addressed the same question "with the benefit of jurisdictional discovery." The panel stated "After reconsideration in light of [the Seventh Circuit precedent], we affirm the district court's dismissal for lack of personal jurisdiction."

So far, nothing out of the ordinary. It is common enough for a panel to grant a petition for rehearing, especially if there is some relevant precedent from another circuit.

The second component of the order is strange. The body of the order is two paragraphs, followed by a * footnote.

Per Curiam:

The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing (Fed. R. App. P. 40 and 5th Cir. R. 40).

In the en banc poll, 5 judges voted in favor of rehearing (Jones, Smith, Richman, Ho, and Engelhardt), and 11 judges voted against rehearing (Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Wilson, Douglas, and Ramirez).*

* Judge Oldham's participation is not reflected because the panel granted rehearing. See Fed. R. App. 40(a) ("Panel rehearing is the ordinary means of reconsidering a panel decision; rehearing en banc is not favored."); 5th Cir. R. 40 I.O.P. ("Panel has control—Although each panel judge and every active judge receives a copy of the petition for rehearing en banc, the filing of a petition for rehearing en banc does not take the case out of the control of the panel deciding the case. A petition for rehearing en banc is treated as a petition for rehearing by the panel if no petition is filed. The panel may grant rehearing without action by the full court." (capitalization omitted; emphases added)).

A few things stand out.

First,........

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