                              PUBLISHED
                                                  FILED:   April 17, 2002

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 00-2260
                           (CA-00-1268-A)



NOTRA TRULOCK, III; LINDA CONRAD,


                                             Plaintiffs - Appellants,

          versus


LOUIS J. FREEH, in his personal capacity; NEIL
GALLAGHER, in his personal capacity; STEVE
DILLARD, in his personal capacity; BRIAN
HALPIN, in his personal capacity; STEVEN CARR,
in his personal capacity; JANE DOE, I, in her
personal capacity,

                                                 Defendants - Appellees.



                              O R D E R



     Appellants and appellees have filed petitions for rehearing

and rehearing en banc.

     Judges   Michael,   Gregory,   and   Legg    voted    to   deny   panel

rehearing.

     A member of the Court requested a poll on the petition for

rehearing en banc filed by the defendants.         There was no request

for a poll on the petition for rehearing en banc filed by the

plaintiffs.
     Judge Widener voted to grant the defendants’ petition for

rehearing en banc and Chief Judge Wilkinson and Judges Wilkins,

Niemeyer,   Luttig,   Williams,   Michael,   Motz,   Traxler,   King   and

Gregory voted against rehearing en banc.

     The Court denies the petitions for rehearing and rehearing en

banc.

     Entered at the direction of Judge Michael for the Court.

                                  For the Court



                                       /s/ Patricia S. Connor
                                             Clerk
WIDENER, Circuit Judge, dissenting:

     I respectfully dissent from the denial of the defendants’

petition for rehearing.

     The panel’s decision to remand for further examination of

Trulock’s First Amendment retaliation claim other than for trivial

causes, is based wholly on statements made by Sanchez at the time

of the search that:

     Sanchez told Conrad, on behalf of the FBI, that there was
     a search warrant when there was none. Finally, two weeks
     after the incident, Sanchez told Conrad that if she
     initiated a lawsuit, Sanchez, to protect the “Bureau,”
     would deny telling Conrad that the FBI claimed to have a
     search warrant. Trulock v. Freeh, 275 F.3d 391, 405 (4th
     Cir. 2001).

And, earlier that day, when Conrad arrived at work

     Sanchez took her aside to say that the FBI wanted to
     question her about Trulock. Sanchez warned her that the
     agent had a warrant to search the townhouse and would
     break down the front door in the presence of the media,
     if she refused to cooperate. 275 F.3d at 398.

     Sanchez, however, was not an employee of the FBI, rather of

the Department of Energy.    275 F.3d 398.   He was not even sued.

275 F.3d. at 391.   The panel concluded as a fact, in examining the

liability of Freeh, Gallagher and Dillard, all from the FBI, that:

     While the complaint alleges that Sanchez was speaking at
     the request of the FBI there is no allegation that any of
     these three individuals were personally complicit in
     Sanchez’s alleged misrepresentations. 275 F.3d at 402.

     Also in the panel decision is the finding with respect to the

statement Sanchez made to Conrad at work

     Nor does the complaint allege that any of the five
     individual Defendants either directed Sanchez to make
     that threat or knew about it. 275 F.3d at 398.
     These factual conclusions made by the panel and just quoted

are, in my opinion, entirely inconsistent with liability on a First

Amendment claim of retaliation.

     With respect to the only two other items on which the panel

based its remand other than the performance of Sanchez, timing and

engaging    in   the    search   without   a   criminal   referral    from   the

Department of Energy, the district court reasoned that

     Other than the timing of the interrogation and search,
     the complaint presents no allegations that the actions by
     the defendants were other than a good faith effort to
     determine whether classified information was being
     unlawfully possessed. 275 F.3d at 399.

     In my opinion nothing in this record shows that the above

quotation    from      the   district   court’s   decision   was     erroneous.

Because, at the worst for the defendants, there is a legitimate

question as to whether their conduct constituted a Constitutional

violation, they are entitled to qualified immunity.                   Wiley v.

Doory, 993, 995 (4th Cir. 1994).
