Bockting

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,  No. 02-15866 Petitioner-Appellant, D.C. No. v.  CV-98-00764-ECR District of

ROBERT BAYER,

Respondent-Appellee. Nevada, Reno

 ORDER

Filed August 11, 2005

Before: J. Clifford Wallace, John T. Noonan, and M. Margaret McKeown, Circuit Judges.

Order; Dissent by Judge O’Scannlain

ORDER

Judge McKeown votes to deny the petition for rehearing en banc, and Judge Noonan so recommends. Judge Wallace rec- ommends granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing.

The petition for rehearing en banc is DENIED.

10399 10400 BOCKTING v. BAYER O’SCANNLAIN, Circuit Judge, with whom KOZINSKI,

KLEINFELD, GRABER, GOULD, TALLMAN, BYBEE,

CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:

Judge Wallace’s dissent ably explains why the court errs…