Appellate lawyer John Reeves is cautiously optimistic:
1) I'm going to go out on a limb here and say that the DC Circuit's failure at this point to rule one way or another on Judge Sullivan's en banc petition means it will DENY the petition. Here's why:
2) When en banc rehearing is GRANTED, the order stating this does NOT declare which judges voted how. This makes sense, because the court does not want the parties to know ahead of time how each judge is thinking during briefing and oral argument on en banc rehearing.
3) By contrast, if en banc rehearing is DENIED, and a vote was called for, the denial order usually lists how each judge voted--it lets everyone know which judges voted for en banc rehearing, and which judges voted to deny en banc rehearing.
4) If en banc rehearing is denied on a contentious issue, it is not at all unusual for the judges who wanted en banc rehearing, but were outvoted, to write dissenting opinions stating why they believe en banc rehearing should have been granted. Writing legal opinions takes time.
5) In light of the above, I believe that at some point last week, the DC Circuit voted on the en banc petition, and a majority voted AGAINST granting rehearing en banc. But at least some of the judges wanted to write dissenting opinions on the matter.
6) Judge Wilkins, for example, would almost certainly write a dissenting opinion if en banc rehearing was denied. That is what I believe is going on right now--the court last week voted to deny rehearing en banc, and Judge Wilkins is writing a dissenting opinion on the matter.
7) Otherwise, had there been a majority of DC Circuit judges to vote to grant rehearing en banc, it would already have issued an order to that effect last week.
8) Thus, I am cautiously of the belief that the DC Circuit has already voted to DENY Judge Sullivan's petition for rehearing en banc, and it is just waiting for Judge Wilkins (and possibly others) to finish his (their) dissenting opinion(s) on the matter.
UPDATE: Shipwreckedcrew weighs in in support of John Reeves:
I think John is correct. The writing was on the wall when Judge Sullivan had to file his own petition for re-hearing. Prior to that Petition, any judge could have called for a vote on en banc review of the Panel decision, and Judge Sullivan's petition strongly hints none did.
My recollection is that the three judges on the panel cannot call for rehearing, so Judge Wilkins could not. But even when Judge Sullivan filed his petition, that doesn't automatically result in a vote being taken. A judge still needs to call for vote on Sullivan's petition.