*2 Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.
O R D E R A petition for rehearing en banc was filed by the Appellant, and a response thereto was invited by the court and filed by the Appellee. The petition was referred first as a petition for panel rehearing to the panel that heard the appeal, and thereafter the petition and response were referred to the circuit judges who are in regular active service.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is denied. [1]
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on September 6, 2006. *3 FOR THE COURT _Aug 30 2006 _s/Jan Horbaly____ Date Jan Horbaly
Clerk cc: John S. Brown, Esq.
Francesca U. Tamami, Esq. 2
[1] The merits panel issues a supplemental opinion simultaneously with this order.