Indeed, the Supreme Court has rejected the idea that an official action 10 Moreover, the fact that no Fourth Circuit judge voted to grant the petition for rehearing en banc — not even Chief Judge Traxler — confirms that at least according to these jurists, review of the Owens decision is not needed “to secure or maintain uniformity of the court’s decisions” or to review a “question of exceptional importance.” See Fed. R. App. P. 35(a). 20 Case 1:11-cv-03295-GLR Document 67 Filed 01/16/15 Page 23 of 35 is protected by qualified immunity unless the “action in question has previously been held [to be] unlawful.”

The agency has 45 days from the date of the Second Circuit’s opinion to seek further review in that circuit. See Fed. R. App. P. 35, 40. If the Second Circuit denies a request for rehearing (either by the panel or en banc), the CIA will have an additional 90 days— or even 150 days—after the denial to petition for a writ of certiorari in the Supreme Court.

It is not to be used for reargument of the issues previously presented[.]”) (emphasis in original), and for en banc rehearing even higher, see Fed. R. App. P. 35(a) (en banc determination ordinarily will not be ordered unless “necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.”).

The government is out of time to seek en banc review. See Fed. R. App. P. 35(c). Parhat v. Gates will certainly stand unless the Supreme Court orders to the contrary, and no one has sought such relief.

En banc review is generally only permitted “to secure or maintain uniformity of the court’s decisions” or where “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35; see also Fed. Cir. Rule 35.