Petition for Writ of Certiorari — Richard Sowinski, Petitioner v. California Air Resources Board

APPENDIX

23092.3

TABLE OF CONTENTS

Appendix A:

Appendix B:

Appendix C:

Appendix D:

23092.3

Court of appeals opinion,

Aug. 21, 2020 ............................................ 1a

District court dismissal order,

Sept. 25, 2018 ......................................... 10a

District court order denying

reconsideration,

Jan. 18, 2019 ........................................... 16a

Court of appeals order,

Oct. 23, 2020 ........................................... 18a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 2019-1558

RICHARD SOWINSKI,

Plaintiff-Appellant,

v.

CALIFORNIA AIR RESOURCES BOARD,

Defendant-Appellee.

Filed: August 21, 2020

Appeal from the United States District Court

for the Northern District of California

Before NEWMAN, LOURIE, and SCHALL,

Circuit Judges.

OPINION

PAULINE NEWMAN, Circuit Judge:

Dr. Richard Sowinski appeals the dismissal, on the

ground of res judicata, of his patent infringement suit

(1a)

2a

against the California Air Resources Board. 1 He raises

two principal arguments: (1) that res judicata does not

apply because his present complaint seeks damages only

for infringement that occurred after conclusion of his

prior suits and (2) that res judicata does not apply because the prior suit was resolved on procedural grounds,

without reaching the merits of infringement. We conclude

that the district court’s decision is in accordance with law

and precedent and is within the court’s discretionary authority, and is affirmed.

BACKGROUND

The first set of State and Federal lawsuits

On November 24, 2015, Dr. Sowinski filed suit in the

California Superior Court in Orange County, against the

California Air Resources Board (“CARB”) and several individual and corporate defendants associated with

CARB. The three counts of the complaint were (1) infringement of United States Patent No. 6,601,033 (“the

’033 patent”), (2) violation of California Welfare & Institutions Code elder abuse laws, and (3) violation of California Business & Professions Code § 17200 et seq. All three

counts are associated with infringement of the ’033 patent, entitled “Pollution Credit Method Using Electronic

Networks,” which describes and claims an electronic

method and apparatus for validating and trading consumer pollution-control tax credits. Dr. Sowinski stated

that the ’033 patent is infringed by California’s Cap-andTrade Program auctions.

1

Sowinski v. Cal. Air Res. Bd., No. 18-CV-3979-LHK, 2018 WL

9841114 (N.D. Cal. Sept. 25, 2018) (“Dist. Ct. Op.”); id., (N.D. Cal.

Jan. 18, 2019) (Dkt. No. 29) (“Recon. Op.”).

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On the motion of a defendant, the suit was removed to

the United States District Court for the Central District

of California. Pre-trial proceedings included the filing of

several motions to dismiss. After Dr. Sowinski moved to

file an amended complaint, the parties filed a joint stipulation to withdraw the amended complaint and postpone

the hearing on the motions to dismiss. The joint stipulation included the statement that the motions to dismiss

were “potentially case dispositive.” CARB Br. 8.

Dr. Sowinski did not file a response to the motions to

dismiss. After the period set in the local rules for such response, the district court dismissed the complaint “pursuant to Central District of California Local Rule 7-12,

which provides that the failure to file a document within

a deadline ‘may be deemed consent to the granting or denial of the motion.’” Dist. Ct. Op. at *2. The dismissal was

with prejudice and without leave to amend.

Dr. Sowinski appealed to the Federal Circuit. We recognized Ninth Circuit precedent that failure to oppose a

motion to dismiss may lead to dismissal with prejudice.

See, e.g., Owens v. Kaiser Foundation Health Plan, Inc.,

244 F.3d 708, 711, 714 (9th Cir. 2001). We affirmed the

dismissal, concluding that the district court had considered all of the relevant factors as well as the applicable

case law, and that there was no clear error of judgment.

We concluded that the dismissal was properly with prejudice because Dr. Sowinski “stipulated that ‘the Motions

to Dismiss are potentially case dispositive,’ but nevertheless conceded and reaffirmed that [he] failed to oppose.”

Sowinski v. Cal. Air Res. Bd., 720 F. Appx 615 (Fed. Cir.

2017) (“Sowinski I”), at 619. Our mandate issued on December 18, 2017.

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The second set of State and Federal lawsuits

On January 31, 2018 Dr. Sowinski filed a complaint in

the Superior Court of California in Orange County. The

complaint was substantially identical to his prior complaint, except that he sought damages only for infringement after the decision in Sowinski I. He soon voluntarily

dismissed the Superior Court action, and on July 2, 2018

he filed the same complaint in the United States District

Court for the Northern District of California. The complaint stated the same three counts as in Sowinski I: infringement of the ’033 patent, violation of California elder

abuse laws, and violation of the California Business &

Professions Code. CARB was the only named defendant.

Dr. Sowinski filed an application in the district court

to proceed in forma pauperis. CARB moved for dismissal

on several grounds: res judicata, Eleventh Amendment

immunity from suit, and patent invalidity. The district

court dismissed the complaint on the ground of res judicata, observing that the dismissal of the same claims in

the prior litigation against the same defendant “was an

adjudication on the merits.” Dist. Ct. Op. at *2. The court

“[found] that the Complaint is frivolous and fails to state

a claim upon which relief can be granted.” Id. at *3.

This appeal followed.

DISCUSSION

In reviewing a ruling of dismissal, “[t]he trial court’s

dismissal should not be disturbed unless there is a definite and firm conviction that the court below committed a

clear error of judgment in the conclusion it reached upon

a weighing of the relevant factors.” Ferdik v. Bonzelet,

963 F.2d 1258, 1260 (9th Cir. 1992) (citations and quota-

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tion marks omitted). For review of the district court’s dismissal on the ground of res judicata, we apply the procedural law of the regional circuit, and any aspects unique

to patent law are reviewed under Federal Circuit law. Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1323 (Fed.

Cir. 2008).

Res judicata, or claim preclusion, may be based on

failure to prosecute

Res judicata arises when the prior case or claim was

previously tried and the merits were adjudicated. “In civil

cases, a claim generally may not be tried if it arises out of

the same transaction or common nucleus of operative

facts as another already tried.” Currier v. Virginia, 138

S. Ct. 2144, 2154 (2018). The Ninth Circuit applies the

general rule that preclusion applies when the prior suit:

“(1) involved the same ‘claim’ or cause of action as the

later suit, (2) reached a final judgment on the merits, and

(3) involved identical parties or privies.” Mpoyo v. Litton

Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)

(quoting Sidhu v. Flecto Co., 279 F.3d 896, 900 (9th Cir.

2002)). See, e.g., Stewart v. U.S. Bancorp, 297 F.3d 953,

956 (9th Cir. 2002) (same).

Dr. Sowinski argues that the merits of patent infringement were not adjudicated in Sowinski I, for the

action was dismissed because he did not comply with the

district court’s local rule for responding to a motion to dismiss. He argues that this was not a final judgment on the

merits, because the dismissal was based on the technicality of a local deadline. He states that the imposition of res

judicata on this basis is “manifestly unjust” because

there was no trial of the question of infringement, and

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that if an infringement suit is now barred his patent is essentially invalidated because the CARB Cap-and-Trade

Program is the only known infringing activity.

The district court cited Johnson v. U.S. Department

of the Treasury, 939 F.2d 820, 825 (9th Cir. 1991) for the

holding that “dismissal for failure to prosecute should be

‘treated as an adjudication on the merits for purposes of

preclusion.’” Dist. Ct. Op. at *2. On Dr. Sowinski’s request for reconsideration, the district court cited the Federal Circuit’s statement in Senju Pharmaceutical Co. v.

Apotex Inc., 746 F.3d 1344, 1349 (Fed. Cir. 2014) that:

“Claim preclusion will generally apply when a patentee

seeks to assert the same patent against the same party

and the same subject matter.” Recon. Op. at 2.

Federal Rule of Civil Procedure 41(b) provides that a

dismissal for failure to prosecute “operates as an adjudication on the merits,” with exceptions not here applicable:

41(b) Involuntary Dismissal; Effect. If the plaintiff

fails to prosecute or to comply with these rules or a

court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order

states otherwise, a dismissal under this subdivision

(b) and any dismissal not under this rule—except one

for lack of jurisdiction, improper venue, or failure to

join a party under Rule 19—operates as an adjudication on the merits. . . .

The Federal Circuit has applied these principles. See, e.g.,

Nystrom v. Trex Co., 580 F.3d 1281, 1284-85 (Fed. Cir.

2009) (“In its simplest construct, [claim preclusion bars]

the relitigation of a claim, or cause of action, or any possible defense to the cause of action which is ended by a

judgment of the court.”); Senju, supra.

7a

We conclude that the district court properly applied

preclusion on this ground.

Preclusion may apply to claims that arise after the

prior judgment

Dr. Sowinski argues that preclusion cannot apply, as

a matter of law, because he is seeking damages only for

the period after conclusion of the Sowinski I litigation.

He cites the principle that: “While the [prior] judgment

precludes recovery on claims arising prior to its entry, it

cannot be given the effect of extinguishing claims which

did not even then exist and which could not possibly have

been sued upon in the previous case.” Sowinski Br. 3-4.

(quoting Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322,

328 (1955)). He also cites Ninth Circuit precedent that

“[f]ailure to gain relief for one period of time does not

mean that the plaintiffs will necessarily fail for a different

period of time.” Sowinski Br. 4 (quoting Harkins Amusement Enters., Inc. v. Harry Nace Co., 890 F.2d 181, 183

(9th Cir. 1989)). However, in those cases the second litigation related to different conduct and different alleged

violations or litigants, Lawlor, 349 U.S. at 328, or “facts

which by the defendants’ own concession are at least 10

percent different from the facts alleged” in the previous

litigation and that occurred after the previous litigation,

Harkins, 890 F.2d at 183.

Dr. Sowinski alleges no different conduct or acts, and

the defendant is the same. However, he argues that a

claim “arising subsequent to a prior action . . . [is] not

barred by res judicata” even if the new claim is “premised

on facts representing a continuance of the same course of

conduct.” Reply Br. 3 (internal quotation marks omitted).

He cites Storey v. Cello Holdings, LLC, 347 F.3d 370 (2d

8a

Cir. 2003), for the position that “[c]laims arising subsequent to a prior action need not, and often perhaps could

not, have been brought in that prior action; accordingly,

they are not barred by res judicata regardless of whether

they are premised on facts representing a continuance of

the same course of conduct.” Id. at 383 (internal quotation

marks omitted).

It is correct that when an act has been adjudged

wrongful, a subsequent suit may be brought if the violation is repeated. However, when the act has been adjudged not wrongful, its repetition cannot be challenged

in a subsequent suit. In Brain Life, LLC v. Elekta Inc.,

746 F.3d 1045 (Fed. Cir. 2014), the court considered the

effect of a prior judgment of non-infringement; the court

explained that preclusion does not apply to new or

changed products or methods, but does apply when the

accused products or methods are essentially the same. Id.

at 1054. The court summarized:

The principle that, when an alleged infringer prevails

in demonstrating noninfringement, the specific accused device(s) acquires the “status” of a noninfringing device vis-à-vis the asserted patent claims is “[a]n

essential fact of a patent infringement claim” . . . . And,

when the devices in the first and second suits are “essentially the same,” the “new” product(s) also acquires the status of a noninfringing device vis-à-vis

the same accusing party or its privies.

Id. at 1057 (quoting Foster v. Hallco Mfg. Co., 947 F.2d

469, 479-80 (Fed. Cir. 1991)). See Lawlor, 349 U.S. at 383

(a claim based on new and different facts is not precluded,

whereas a claim based on the same facts is precluded).

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Here the accused CARB activity had been held not to

be infringing, for Dr. Sowinski’s failure to respond to the

motions to dismiss was treated as a judgment on the merits. He does not allege any different facts; to the contrary,

his complaint states that CARB’s on-going activities are

the same as existed for Sowinski I.

The district court properly held that the dismissal in

Sowinski I is res judicata, for CARB is charged with the

same acts of infringement of the same patent. Although

Dr. Sowinski stresses the inequity that he did not obtain

resolution of the question of infringement, CARB points

out that he had the opportunity to do so. The application

of preclusion “encourages reliance on judicial decisions,

bars vexatious litigation, and frees the courts to resolve

other disputes,” Brown v. Felsen, 442 U.S. 127, 131

(1979). The district court acted within its discretion and

in accordance with law, in applying res judicata. The dismissal is affirmed.

AFFIRMED

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

CASE NO. 18-CV-03979-LHK

RICHARD SOWINSKI,

Plaintiff,

v.

CALIFORNIA AIR RESOURCES BOARD,

Defendant.

Filed: September 25, 2018

ORDER DENYING APPLICATION TO PROCEED

IN FORMA PAUPERIS; DISMISSING

COMPLAINT WITHOUT LEAVE TO AMEND

Before LUCY H. KOH, United States District Judge.

On July 2, 2018, Plaintiff Richard Sowinski (“Plaintiff”) filed a Complaint against the California Air Resources Board (“Defendant”). ECF No. 1 (“Compl.”). On

August 10, 2018, Plaintiff filed an Application to Proceed

in Forma Pauperis (“IFP Application”). ECF No. 11. For

the reasons stated below, the Court DENIES Plaintiff’s

IFP Application and DISMISSES the Complaint without

leave to amend.

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Under the federal in forma pauperis statute, a court

may authorize the commencement of a suit without prepayment of the filing fee required by the clerk of the court

if the plaintiff submits an affidavit of poverty showing

that he or she is “unable to pay such fees or give security

therefor.” 28 U.S.C. § 1915(a). However, even if the plaintiff makes an adequate showing of poverty, a court may

deny leave to proceed in forma pauperis if it determines

at the outset “from the face of the proposed complaint

that the action is frivolous or without merit.” Tripati v.

First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.

1987); see also 28 U.S.C. § 1915(e); Calhoun v. Stahl, 245

F.3d 845, 845 (9th Cir. 2001) (per curiam) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

Plaintiff has declared under penalty of perjury that

Plaintiff is not presently employed, that Plaintiff receives

$2,248 per month in Social Security, and that Plaintiff

currently possesses assets of $35 in cash. IFP Application

at 1–3. Given Plaintiff’s monthly income and expenses,

the Court determines that Plaintiff is unable to pay the

filing fee in this case.

However, when reviewing an application to proceed in

forma pauperis, the Court must also conduct a sua sponte

review of the complaint and may dismiss the case if the

complaint is frivolous, malicious, or fails to state a claim

upon which relief may be granted. 28 U.S.C. §

1915(e)(2)(B).

Upon review of Plaintiff’s Complaint, the Court finds

that the Complaint is frivolous and fails to state a claim

upon which relief can be granted. Plaintiff sues Defendant for patent infringement, elder abuse, and deceptive

12a

business practices under California Business and Professions Code Section 17200 et seq. Compl. ¶¶ 18–43. Plaintiff’s lawsuit concerns Defendant’s alleged infringement

of Plaintiff’s patent of a pollution credit exchange, U.S.

Patent 6,601,033 (“Patent ’033”). Compl. ¶ 1. Plaintiff’s elder abuse claim is predicated on Defendants’ alleged

wrongful appropriation of Plaintiff’s patent. Id. ¶¶ 35–36.

Likewise, Plaintiff’s deceptive business practices claim is

predicated on “Defendants’ conduct in infringing the

SOWINSKI PATENT.” Id. ¶ 41. Plaintiff alleges damages in excess of $100 million. Id. ¶ 42. Defendant has filed

a motion to dismiss, ECF No. 12, and a request for judicial notice. ECF No. 13.

Plaintiff’s Complaint fails to state a claim because res

judicata bars Plaintiff’s claims. The doctrine of res judicata bars suit “on any claims that were raised or could

have been raised in a prior action.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (internal quotation

marks omitted). Res judicata applies when three requirements are satisfied: (1) the prior proceeding resulted in a

final judgment on the merits; (2) the present action involves substantively the same claims or causes of action

as the prior proceeding; and (3) the party to be precluded

was a party or in privity with a party to the prior proceeding. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d

985, 987 (9th Cir. 2005). All three elements are satisfied

in this case.

In 2015, Plaintiff filed a patent infringement lawsuit

against Defendant and other parties. See Sowinski v.

CARB, 720 F. App’x 615 (Fed. Cir. 2017) (“Sowinski I”).

Plaintiff first filed his lawsuit in Orange County Superior

Court, and one defendant removed the case to federal

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court. Id. at 616. Plaintiff brought claims for “patent infringement, elder abuse, and violations of California Business and Professions Code § 17200 et seq.” Id. In federal

court, the defendants moved to dismiss, and Plaintiff filed

a First Amended Complaint (“FAC”) rather than oppose

the motion. Id. The defendants moved to strike the FAC,

at which point the parties stipulated that Plaintiff would

withdraw the FAC and defendants would withdraw their

motion to strike. Id. The district court accepted the parties’ stipulation, and then granted defendants’ motion to

dismiss Plaintiff’s original complaint pursuant to Central

District of California Local Rule 7-12, which provides that

the failure to file a document within a deadline “may be

deemed consent to the granting or denial of the motion.”

Id. at 617. The Federal Circuit applied Ninth Circuit law

and affirmed the district court’s dismissal of the Sowinski

I complaint. Id. at 619. The Court concludes that the dismissal of Sowinski I precludes Plaintiff’s Complaint in

the instant matter.

At the threshold, Defendant asks the Court to take judicial notice of Plaintiff’s complaint in Sowinski I. ECF

No. 13. The Court may take judicial notice of matters that

are either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records,

including judgments and other public filed documents,

are proper subjects of judicial notice. See, e.g., United

States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007)

(“[Courts] may take notice of proceedings in other courts,

both within and without the federal judicial system, if

those proceedings have a direct relation to matters at issue.”). Thus, the Court takes judicial notice of the

14a

Sowinski I complaint, which is a public record with a direct relationship to the Complaint in this case.

Plaintiff raised all of the claims in the instant Complaint in Sowinski I, which satisfies the first element of

res judicata. As explained above, Plaintiff’s causes of action in the Complaint are all predicated on Defendant’s

alleged infringement of Patent ’033. Similarly, in

Sowinski I, Plaintiff also brought causes of action for patent infringement, elder abuse, and unfair competition

predicated on the defendants’ alleged infringement of Patent ’033. See ECF No. 13 at 8–21 (Plaintiff’s causes of

action in Sowinski I). As Defendant points out, the instant Complaint even includes the allegation—repeated

from the Sowinski I complaint—that “Orange County is

a proper venue.” Compl. ¶ 3. Plaintiff’s instant Complaint

thus arises from “the same transactional nucleus of facts”

as the Sowinski I complaint. See Headwaters Inc. v. U.S.

Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005).

Second, the district court’s dismissal was an adjudication on the merits. A dismissal for failure to prosecute

“operates as an adjudication on the merits.” Fed. R. Civ.

Proc. 41(b). As a result, the Ninth Circuit has held that a

dismissal for failure to prosecute should be “treated as an

adjudication on the merits for purposes of preclusion.”

Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 825 (9th

Cir. 1991). The district court in Sowinski I dismissed

Plaintiff’s complaint for failure to prosecute under Central District of California Local Rule 7-12. 720 F. App’x at

617. That rule provides that “[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of

the motion.” In pertinent part, the rule mirrors Federal

Rule of Civil Procedure 41(b), which permits dismissal

15a

when a “plaintiff fails to prosecute” an action. The Court

thus concludes that the district court’s dismissal in

Sowinski I, which the Federal Circuit affirmed, was a final judgment on the merits.

Third, both Plaintiff and Defendant were parties to

the previous suit. See ECF No. 13 at 5. As further evidence of how completely Plaintiff’s Complaint mirrors

the Sowinski I complaint, the Complaint continues to include allegations against the Sowinski I defendants, even

though they are not named defendants in the instant suit.

See, e.g., Compl. ¶¶ 25–26.

Accordingly, because Plaintiff’s Complaint is clearly

barred by res judicata, the Court concludes that Plaintiff’s Complaint is frivolous and denies his IFP Application on that basis. See Minetti v. Port of Seattle, 152 F.3d

1113, 1115 (9th Cir. 1998) (per curiam) (affirming the district court’s denial of an in forma pauperis application because plaintiff’s complaint was barred by res judicata).

For the reasons stated above, Plaintiff’s Complaint is

frivolous and fails to state a claim upon which relief can

be granted. The Court thus DENIES Plaintiff’s IFP Application and DISMISSES Plaintiff’s Complaint without

leave to amend.

IT IS SO ORDERED.

Dated: September 25, 2018

s/ Lucy H. Koh

LUCY H. KOH

United States District Judge

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APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

CASE NO. 18-CV-03979-LHK

RICHARD SOWINSKI,

Plaintiff,

v.

CALIFORNIA AIR RESOURCES BOARD,

Defendant.

Filed: January 18, 2019

ORDER DENYING PLAINTIFF’S MOTION FOR

RECONSIDERATION

Before LUCY H. KOH, United States District Judge.

In this lawsuit, Plaintiff asserts that the same party

infringed the same patent through the same conduct as

Plaintiff did in Plaintiff’s previously dismissed case. Compare ECF No. 13 at 6, ¶ 1 (Plaintiff’s complaint in previous case alleging that “[s]ince 2013” Defendant has conducted cap-and-trade auctions that “directly infringe[]”

Plaintiff’s patent) with ECF No. 1, ¶ 1 (Plaintiff’s instant

Complaint alleging that “[s]ince 2013” Defendant has

conducted cap-and-trade auctions that “directly infringe[]” Plaintiff’s patent). In his motion for reconsideration, Plaintiff even acknowledges that the instant lawsuit

17a

is predicated on the same conduct as Plaintiff’s previous

suit. ECF No. 19 at 2 (“Defendant violates the patent on

a yearly basis when it runs the CARB Auction.”).

As a result, res judicata bars Plaintiff’s instant lawsuit. See Senju Pharm. Co., Ltd. v. Apotex Inc., 746 F.3d

1344, 1349 (Fed. Cir. 2014) (“Claim preclusion will generally apply when a patentee seeks to assert the same patent against the same party and the same subject matter.”); see also Single Chip Sys. Corp. v. Intermec IP

Corp., 495 F. Supp. 2d 1052, 1062 (S.D. Cal. 2007) (dismissing as barred by res judicata a later-in-time suit “assert[ing] identical facts in the type of product and patent

action” as the earlier suit). Therefore, the Court

DENIES Plaintiff’s motion for reconsideration.

IT IS SO ORDERED.

Dated: January 18, 2019

s/ Lucy H. Koh

LUCY H. KOH

United States District Judge

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 2019-1558

RICHARD SOWINSKI,

Plaintiff-Appellant,

v.

CALIFORNIA AIR RESOURCES BOARD,

Defendant-Appellee.

Filed: October 23, 2020

Appeal from the United States District Court

for the Northern District of California

ON PETITION FOR REHEARING EN BANC

Before PROST, Chief Judge, NEWMAN, LOURIE,

SCHALL *, DYK, MOORE, O’MALLEY, REYNA,

WALLACH, TARANTO, CHEN, HUGHES, AND

STOLL, Circuit Judges.

PER CURIAM.

ORDER

Circuit Judge Schall participated only in the decision on the petition

for panel rehearing.

*

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Appellant Richard Sowinski filed a petition for rehearing en banc. The petition was first referred as a petition for rehearing to the panel that heard the appeal, and

thereafter the petition for rehearing en banc was referred

to the circuit judges who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on October 30,

2020.

FOR THE COURT

October 23, 2020

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court