Anthony (Tony) GASTON, Petitioner-Appellant, v. Anna Ramirez PALMER, Respondent-Appellee, 417 F.3d 1050

Order; Dissent by Judge O’SCANNLAIN. ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC ORDER This court’s opinion filed October 28, 2004 [387 F.3d 1004] is hereby withdrawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kle-infeld would grant it. A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered a decision in Chavis v. LeMarque, 382 F.3d 921 (9th Cir.2004), cert. granted, — U.S. -, 125 S.Ct. 1969, 161 L.Ed.2d 855 (2005). The parties are directed to file simultaneous letter briefs with this court 30 days after the decision by the Supreme Court in Chavis, addressing the impact, if any, of that decision on this case.