concurs in the denial of the petition for rehearing en banc.
O’MALLEY, Circuit Judge, with whom NEWMAN, Circuit Judge, joins,dissents from the denial of the petition for rehearing en banc.
ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC
PER CURIAM.ORDER
A combined petition for panel rehearing and rehearing en banc was filed by Plaintiff-Appellee, and a response thereto wras invited by the court and filed by Defendanh-Appellant.
The petition for panel 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 Plaintiff-Appellee’s petition for panel rehearing is denied.
(2) The Plaintiff-Appellee’s petition for rehearing en banc is denied.
(3) The mandate of the court will issue on March 21, 2011.