JAMES LOMBARDO, — v. BRUCE WARNER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE OREGON DEPARTMENT OF TRANSPORTATION, —

371 F.3d 538 James LOMBARDO, Plaintiff — Appellant, v. Bruce WARNER, in his official capacity as Director of the Oregon Department of Transportation, Defendant — Appellee. No. 02-35269. United States Court of Appeals, Ninth Circuit. Filed June 4, 2004. Alan R. Herson, Jacksonville, OR, for Plaintiff-Appellant. Richard D. Wasserman, Asst. Atty. Gen., Janet A. Metcalf, Office of the Attorney General, Salem, OR, for Defendant-Appellee. Before SCHROEDER, Chief Judge. ORDER SCHROEDER, Chief Judge. 1 Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.