ORDER
THOMAS, Chief Judge:
Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opin *1093 ion shall not be cited as precedent by or to any court of the-Ninth Circuit.
Judge Owens did not participate in the deliberations or vote in this case.