Melinda Birt v. Surface Transportation Board, Union Pacific Railroad Company and City of Nampa, Idaho, Intervenors

SENTELLE, Circuit Judge,

concurring in the denial of rehearing in banc, joined by Circuit Judges SILBERMAN, STEPHEN F. WILLIAMS and GINSBURG:

Birt seeks rehearing in banc on the ground that the panel opinion conflicts with an earlier decision of this Court, Fritsch v. ICC, 59 F.3d 248 (D.C.Cir.1995), cert. denied, CSX Transp., Inc. v. Fritsch, - U.S.-, 116 S.Ct. 1262, 134 L.Ed.2d 210 (1996). I agree that these decisions are in conflict. However, as a member of this Court has noted, in banc review is appropriate only in cases of “exceptional importance.” Bartlett ex rel. Neuman v. Bowen, 824…