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       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT




                        Filed October 28, 2003

                               No. 01-5387

             BRETT C. KIMBERLIN AND DARRELL RICE,
                          APPELLANTS

                                     v.

            UNITED STATES DEPARTMENT OF JUSTICE AND
                      BUREAU OF PRISONS,
                           APPELLEES



        Appeal from the United States District Court
                for the District of Columbia
                       (No. 97cv02633)
                         –————
      On Appellants’ Petition for Rehearing En Banc
                         –————
  BEFORE: GINSBURG, Chief Judge; EDWARDS, SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit
Judges.

                         ORDER
  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
                               2

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


  A statement by Circuit Judge TATEL concurring in the
denial of rehearing en banc is attached.
  TATEL, Circuit Judge, concurring in the denial of rehearing
en banc:
   Because the panel now rests its decision on Turner v.
Safley, 482 U.S. 78 (1987), rather than on the proposition that
the government may refuse to provide inmates the infrastruc-
tural prison resources necessary for the exercise of their
First Amendment rights without triggering constitutional
scrutiny, the panel has cured its opinion’s most serious defect.
Although the panel’s alternative holding is also flawed, see
Kimberlin v. United States Dep’t of Justice, 318 F.3d 228,
241–42 (D.C. Cir. 2003) (Tatel, J., dissenting), given its ex-
traordinarily narrow scope—applying as it does to only elec-
tric guitars—and given that the Federal Rules of Appellate
Procedure disfavor en banc review, see Fed. R. App. P. 35(a)
(court generally denies full court consideration unless needed
to preserve uniformity or case involves issue of ‘‘exceptional
importance’’), I concur in the denial of rehearing en banc.
