The opinion
ORDER
This matter is before the court on the appellants’ Petition for Rehearing and Re *716 hearing En Banc. We also have a response from the appellees.
Upon consideration, the request for panel rehearing is denied by a majority of the original panel members-. Both the petition and response were also transmitted to all of the judges of the court who are in regular active service. Upon that submission, a poll was called. Via an equally divided vote, the poll did not carry. Consequently, the request for en banc consideration is also denied. See Fed. R.App. P. 35(a)(noting “[a] majority of the circuit judges who are in regular active service” may order en banc rehearing).
Chief Judge Tymkovich, as well as Judges Kelly, Hartz, Gorsuch, Holmes and Moritz would grant the en banc petition. Judge Phillips has filed a separate concurrence in support of the denial of en banc rehearing, which Judge Briscoe joins. Judge Hartz and Judge Moritz have written separately in dissent. Judge Gorsuch joins Judge Hartz’ dissent, and Judges Kelly, Hartz, Gorsuch and Holmes join Judge Moritz’ dissent.