Wilson

ORDER

No party to this case has filed a petition for rehearing or suggestion for rehearing en banc.

An active judge of this court sua sponte requested a vote on whether to rehear the case en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R.App. P. 35.

The sua sponte request for rehearing en banc is DENIED.

KLEINFELD, Circuit Judge, with whom KOZINSKI, O’SCANNLAIN and T.G. NELSON, join, concurring in the order rejecting the suggestion for rehearing en banc:

I concur in the order of the full court rejecting the suggestion that we rehear this case en banc. The dissents from denial of rehearing en banc raise new issues not raised by the parties, and therefore not addressed in the opinion, so the new issues are briefly addressed here.

A fundamental principle underlies the decision: Americans are entitled to be treated equally by their government, regardless of their race, their skin color, their nationality, their religion, their sex. The seed of this principle was planted in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” The fruit is the…

with whom Judges PREGERSON and TASHIMA join, dissenting from failure to rehear en banc:

By striking down a benign governmental outreach program that is intended to ensure a modicum of fairness to minorities and women, this decision goes far beyond any ever issued by a federal appellate court. It represents an unfortunate day in the history of this court, not only because the opinion disregards both the historical facts and the proper legal processes, and so plainly violates the purpose and spirit of the Fourteenth Amendment, but because in declining to take the case en banc, the court as an institution has so grievously failed in its responsibilities. This is a decision that by any criterion warranted en banc rehearing 1 and that under any objective application of the law required reversal. Although I am prohibited from revealing either the vote or the reasons for the court’s failure to take even the first of these steps, both should be evident. 2 Surprisingly, this is also a case that does violence to principles of federalism and to the *1274 proper allocation of functions within the federal courts. 3 Fortunately, however, as a result of its legal excesses, the opinion is, in…