Appeal from the Armed Services Board of Contract Appeals in no. 54907, Administrative Judge Jack Delman.
ON PETITION FOR REHEARING EN BANC
Before RADER, Chief Judge, NEWMAN, MAYER*fn1 , LOURIE, BRYSON, GAJARSA, LINN, DYK, PROST, MOORE, and O'MALLEY, Circuit Judges.
GAJARSA, Circuit Judge, with whom LINN, PROST, and O'MALLEY, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc. NEWMAN, Circuit Judge, dissents from the denial of the petition for rehearing en banc.
A petition for rehearing en banc was filed by Appellee, and a response thereto was invited by the court and filed by Appellant. The court granted leave to National Defense Industrial Association to file a brief amicus curiae in support of Appellee's petition.
The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc, response, and brief amicus curiae were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested, taken, and failed.
Upon consideration thereof,
(1) The petition of Appellee for panel rehearing is denied.
(2) The petition of Appellee for rehearing en banc is denied.
(3) The mandate of the court will issue on March 8, 2011.