Pollard

concurring in part and dissenting in part:

I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner *869 may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, — U.S. -, 129 S.Ct. 632 , 172 L.Ed.2d 619 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 , 126 S.Ct. 2333 , 164 L.Ed.2d 849 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir.2005), vacated in relevant part and affd by equally divided en banc panel, 449 F.3d 1097 (10th Cir.2006) (per curiam), cert. denied, 549 U.S. 1056 , 127 S.Ct. 664 , 166 L.Ed.2d 521 (2006) and 549 U.S. 1063 , 127 S.Ct. 687 ,…

dissenting from the denial of rehearing en banc,

The panel majority — over a vigorous dissent by Chief Judge Restani of the Court *846 of International Trade — extends and grants a Bivens 1 claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. 2 It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. 3 Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. Because such an unprecedented opinion demands further review, I respectfully dissent from the denial of rehearing en banc.

I. The panel majority erred in unjustifiably recognizing a new Bivens action where adequate,…

Order; Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI.

*845 ORDER

The majority opinion is amended as follows:

The dissenting opinion is amended as follows:

At slip op. 8191, [607 F.3d at 611], in the last textual sentence before the Conclusion, the phrase is amended to read:

The amended opinion and amended dissent are filed concurrently with this order.

With those amendments, Judges Hug and Paez voted to deny the petition for panel rehearing. Judge Restani voted to grant the petition for panel rehearing.

The petition for panel rehearing is DENIED.

Judge Paez voted to deny the petition for rehearing en banc and Judge Hug so recommended. Judge Restani recommended that the petition for rehearing en banc be granted. 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 nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is DENIED.

John F. Preis, University of Richmond School of Law, Richmond, VA, and Charles Francis Carbone, San Francisco, CA, for the plaintiff-appellant.

Michael Kenneth Johnson, Lewis, Brisbois, Bisgaard & Smith, LLP, San Francisco, CA, for defendants-appellees, Wackenhut/The GEO Group, Inc., Margaret Minneci, Robert Spack, Bob D. Steifer, and Becky Maness.

David J. Wilson, Manning & Marder Kass Ellrod Ramirez LLP, Los Angeles, CA, for defendant-appellee, Jonathan E. Akanno.

Before: PROCTER HUG, JR. and RICHARD A. PAEZ, Circuit Judges, and JANE A. RESTANI, [*] Judge.

Order; Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI.

The majority opinion is amended as follows:

The dissenting opinion is amended as follows:

At slip op. 8191, [607 F.3d at 611], in the last textual sentence before the Conclusion, the phrase is amended to read:

The amended opinion and amended dissent are filed concurrently with this order.

With those amendments, Judges Hug and Paez voted to deny the petition for panel rehearing. Judge Restani voted to grant the petition for panel rehearing.

The petition for panel rehearing is DENIED.

Judge Paez voted…