But if an earlier version of that case was not reheard en banc, and if, indeed, rehearing en banc was never requested, would the en banc court be bound by the earlier panel decision even though the en banc court (arguably)thought it was erroneous? That’s a genuine question and maybe the answer is “yes” – but it seems to me a bit odd, especially if rehearing en banc hadn’t been sought in the earlier decision.

So I’m thinking not so much of a “preliminary injunction” exception per se but an exception for previous decisions of the court in that case for which there had not been (or been the opportunity or request for?) en banc rehearing.

The second doctrine is the “law of the circuit” doctrine: “the same issue presented in a later case in the same court should lead to the same result.” Here, the same issue is whether the preliminary-injunction exception swallows law-of-the-case preclusion; the earlier case that decided that issue was Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (the later case is this case, itself); and the same court is the D.C. Circuit.

The half doctrine I mentioned above is that the LaShawn A decision discussing these principles is, itself, an en banc opinion. Generally, an en banc court won’t upset a previous en banc decision unless there’s been a change in the law on the ground, e.g., statutory amendments, a Supreme Court decision, etc. That practice will likely be followed here.

Like the recent Summer Olympics, this case too is now at its end. It would be doubtful that an en banc panel of the D.C. Circuit would revive the Games with any feats of legal gymnastics.