PLAGER, Circuit Judge, with whom NEWMAN, Circuit Judge, joins, responding to the decision of the court to deny panel rehearing and rehearing en banc.
GAJARSA and LINN, Circuit Judges, dissent, without opinion, from the denial of the petition for rehearing en banc.
Prior report: 590 F.3d 1291.
ON PETITION FOR REHEARING EN BANC
PER CURIAM.ORDER
A petition for rehearing en banc was filed by the Plaintiff-Appellant, and a response thereto was invited by the court and filed by the Defendant-Appellee. The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and the response 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 of Plaintiff-Appellant for panel rehearing is denied.
(2) The petition of Plaintiff-Appellant for rehearing en banc is denied.
(3)The mandate of the court will issue on October 14, 2010.