Zuni Public School District No. 89 v. United States Department of Education

                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                    February 23, 2006
                       UNITED STATES COURT OF APPEALS               Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 ZUNI PUBLIC SCHOOL DISTRICT
 NO. 89; GALLUP-MCKINLEY
 COUNTY PUBLIC SCHOOL
 DISTRICT NO. 1,
                                                      No. 01-9541
        Petitioners,

 vs.

 UNITED STATES DEPARTMENT
 OF EDUCATION,

        Respondent.

 ----------------------------

 NEW MEXICO STATE
 DEPARTMENT OF EDUCATION,

        Intervenor.


      ON REHEARING EN BANC FROM A DECISION OF THE
     SECRETARY OF THE UNITED STATES DEPARTMENT OF
EDUCATION
                    (Docket No. 99-81-I)


Ronald J. VanAmberg of Roth, VanAmberg, Rogers, Ortiz, Fairbanks & Yepa,
L.L.P., Santa Fe, New Mexico (George W. Kozeliski of Gallup, New Mexico,
with him on the brief), for Petitioners.

Michael Robinson, Attorney, U.S. Department of Justice (Peter D. Keisler,
Assistant Attorney General; Robert S. Greenspan and Peter R. Maier, Attorneys,
U.S. Department of Justice; and Stephen H. Freid and Mark W. Smith, Attorneys,
U.S. Department of Education, with him on the brief), Washington, D.C., for
Respondent.

Leigh M. Manasevit, Special Assistant Attorney General for the State of New
Mexico, of Brustein & Manasevit, Washington, D.C., for Intervenor.


Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, McCONNELL, and
TYMKOVICH, Circuit Judges.


PER CURIAM.



      Two local educational agencies (LEAs) (Zuni Public School District No. 89

and Gallup-McKinley Public School District No. 1) filed a petition for review

from the Secretary of Education’s decision that the State of New Mexico was

equalized pursuant to 20 U.S.C. § 7709(b) and the corresponding regulations at 34

C.F.R. § 222.162(a). See also id. pt. 222, subpt. K, app. A divided panel of this

court denied the petition for review. Zuni Pub. Sch. Dist. No. 89 v. U.S. Dep’t of

Educ., 393 F.3d 1158, 1169 (10th Cir. 2004). We granted rehearing en banc, and

in accordance with our local rule, the judgment was vacated, the mandate stayed

and the case was restored as a pending appeal. 10th Cir. R. 35.6. On rehearing

en banc, the decision of the Secretary is affirmed by an equally divided court.

The panel decision is hereby vacated. See id.



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