David POLICANO, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant, 453 F.3d 79

ORDER A poll on whether to rehear this case en banc was conducted among the active judges of the court upon the request of an active judge of the court. Because a majority of the court’s active judges voted to deny rehearing en banc, rehearing en banc is hereby DENIED. Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, B.D. Parker and Hall concur in the denial of rehearing en banc. Chief Judge Walker and Judges Jacobs, Cabranes, Raggi and Wesley dissent from the denial of rehearing en banc. With this order is filed a per curiam opinion concurring in the denial of rehearing en banc.

Judge Raggi dissents in an opinion in which Chief Judge Walker and Judges Jacobs, Cabranes and Wesley join. Judge Wesley dissents in a separate opinion in which Judge Raggi joins. Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, B.D. Parker and Hall, Circuit Judges, concurring in the denial of rehearing en banc. PER CURIAM. A clear majority of the United States Court of Appeals for the Second Circuit seeks the guidance of the New York Court of Appeals to answer questions which are fundamentally issues of state law.

The majority does not think it is appropriate to have an en banc proceeding on issues of state law where a panel has certified those issues and where resolution of those state law questions could well be outcome determinative of any remaining federal questions. The New York Court of Appeals has been a welcoming partner in the certification process and we have been grateful for its continuing counsel. See Judith S. Kaye and Kenneth I. Weissman, Interactive Judicial Federalism: Certified Questions in New York, 69 Fordham L.Rev. 373 (2000).

As has always been the case, we recognize that the New York Court of Appeals should feel free to make such modifications as to the form of the questions as it deems appropriate. As the certifying panel noted: “[i]n formulating the questions as we have, we do not intend to limit the scope of the New York Court of Appeals’ analysis or its response. The certified questions may be deemed expanded to cover any pertinent further issue that the New York Court of Appeals thinks it appropriate to address.”