BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, PROST, and MOORE, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc in a separate opinion. DYK, Circuit Judge, with whom NEWMAN, SCHALL, GAJARSA, and LINN, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc in a separate opinion.
ORDER
PER CURIAM.A petition for rehearing en banc was filed by the Petitioner, and a response thereto was invited by the court and filed by the Respondent. The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and 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 for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on June 18, 2009.