Order; Concurrence by Judge REINHARDT; Dissent by Judge O’SCANNLAIN.
ORDER
A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED.
The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue *1067until final disposition by the Supreme Court.