ON COMBINED PETITION FOR PANEL REHEARING AND REHEARING EN BANC
ORDER
A combined petition for panel rehearing and rehearing en banc was filed by the Appellant, and responses thereto were invited by the court and filed by the Appellees. This petition for panel rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and responses were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
PAULINE NEWMAN, Circuit Judge, dissents from the denial of rehearing en banc in a separate opinion. LOURIE, Circuit Judge, dissents from denial of the petition for rehearing en banc in a separate opinion. GAJARSA, Circuit Judge, would rehear the appeals en banc. SCHALL, Circuit Judge, did not participate in the vote.