Barnes-Wallace v. City of San Diego
Opinion
Opinion
O'Scannlain, J.
Order; Dissent by Judge O’SCANNLAIN.
ORDER
Judge Berzon has voted to deny the petition for en banc rehearing of the Certification Order filed June 11, 2008, and Judge Canby has so recommended. Judge Kleinfeld has voted to grant en banc rehearing.
The petition for en banc rehearing has been circulated to the full court. 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 nonre-cused active judges in favor of en banc consideration. Fed R.App. P. 35. Judges Gould, Tallman, Clifton and N.R. Smith were recused.
The petition for rehearing en banc is denied. The Clerk of this Court is instructed to transmit the Order Certifying Questions, filed June 11, 2008, to the Supreme Court of California as directed under Section Y of that Order. The earlier order of December 18, 2006, certifying questions to the California Supreme Court was withdrawn by this court on June 11, 2008.
This case shall continue to be withdrawn from submission until further order of this Court.
dissenting from the denial of rehearing en banc, joined by KLEINFELD, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges: