ORDER
The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Murphy, Judge Bye, Judge Melloy, and Judge Smith would grant the petition for rehearing en banc. Judge Gruender, Judge Benton, and Judge Shepherd did not participate in the consideration or decision of this matter.
MURPHY, Circuit Judge, with whom BYE, MELLOY, and SMITH, Circuit Judges, join, dissenting from denial of rehearing en banc.
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