Kimberlin, Brett C. v. Quinlan, Michael J., et al, No. 98-5530 (D.C. Cir. 2000)

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This opinion or order relates to an opinion or order originally issued on December 28, 1999.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 4, 2000

No. 98-5530

Brett C. Kimberlin, Appellee

v.

J. Michael Quinlan, et al., Appellants

Appeal from the United States District Court for the District of Columbia (No. 90cv01549)

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On Appellants' Petition for Rehearing En Banc

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BEFORE: Edwards, Chief Judge; Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges.

O R D E R

Appellants' petition for rehearing en banc and the response thereto have been circulated to the full court. The taking of

a vote was requested. Thereafter, a majority of the judges of the court in regular, active service did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:



Mark J. Langer, Clerk

Circuit Judges Sentelle and Garland did not participate in the matter.

A statement of Circuit Judge Henderson dissenting from the denial of rehearing en banc is attached.

Henderson, Circuit Judge, dissenting:

I dissent from the denial of the appellants' petition for rehearing en banc for the reasons set forth in my panel dissent. See Kimberlin v. Quinlan, 199 F.3d 496, 504-06 (D.C. Cir. 1999). Because the record, viewed in the light most favorable to the appellee, does not establish a constitu- tional violation, the appellants are entitled to qualified immu- nity and we should therefore reverse the district court flat out. See Siegert v. Gilley, 500 U.S. 226 (1991). Instead we remand for the appellee to resume his quest for evidence of an imagined wrong. So doing, we waste the time and re- sources of all involved.