                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHAMBER OF COMMERCE OF THE             
UNITED STATES; CALIFORNIA
CHAMBER OF COMMERCE;
EMPLOYERS GROUP; CALIFORNIA
HEALTHCARE ASSOCIATION;
CALIFORNIA MANUFACTURERS AND
TECHNOLOGY ASSN.; CALIFORNIA
ASSOCIATION OF HEALTH FACILITIES;
CALIFORNIA ASSOCIATION OF HOME
& SERVICES FOR THE AGING; BETTEC
CORPORATION; MARKSHERM
CORPORATION; ZILACO INC., ZILACO;            No. 03-55166
DEL RIO HEALTHCARE, INC.;                     D.C. No.
BEVERLY HEALTH & REHABILITATION            CV-02-00377-GLT
SERVICES, INC. Dba Beverly Manor
Costa Mesa; INTERNEXT GROUP,
               Plaintiffs-Appellees,
AMERICAN FEDERATION OF
LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS;
CALIFORNIA LABOR FEDERATION,
AFL-CIO,
            Intervenors-Appellants,
                 v.
                                       




                             803
804           CHAMBER   OF   COMMERCE v. LOCKYER


BILL LOCKYER, Attorney General,       
in his capacity as Attorney
General of the State of California;
DEPARTMENT OF HEALTH SERVICES;
FRANK G. VANACORE, as the Chief
of the Audit Review and Analysis
Section of the California             
Department of Health Services;
DIANA M. BONTA, Diana M. Bonta,
R.N., Dr., P.h.D, as the Director
of the California Department of
Health Services,
                        Defendants.
                                      

CHAMBER OF COMMERCE OF THE            
UNITED STATES; CALIFORNIA
CHAMBER OF COMMERCE;
EMPLOYERS GROUP; CALIFORNIA
HEALTHCARE ASSOCIATION;                     No. 03-55169
CALIFORNIA MANUFACTURERS AND
TECHNOLOGY ASSN.; CALIFORNIA                 D.C. No.
                                          CV-02-00377-GLT
ASSOCIATION OF HEALTH FACILITIES;
CALIFORNIA ASSOCIATION OF HOME                ORDER
& SERVICES FOR THE AGING; BETTEC
CORPORATION; MARKSHERM
CORPORATION; ZILACO INC., ZILACO;
DEL RIO HEALTHCARE, INC.;
                                      
              CHAMBER   OF   COMMERCE v. LOCKYER    805


BEVERLY HEALTH & REHABILITATION         
SERVICES, INC. Dba Beverly Manor
Costa Mesa; INTERNEXT GROUP,
                Plaintiffs-Appellees,
                and
AMERICAN FEDERATION OF
LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS;
CALIFORNIA LABOR FEDERATION,
AFL-CIO,
                         Intervenors,
                 v.
BILL LOCKYER, Attorney General,
                                        
in his capacity as Attorney
General of the State of California;
DEPARTMENT OF HEALTH SERVICES;
FRANK G. VANACORE, as the Chief
of the Audit Review and Analysis
Section of the California
Department of Health Services;
DIANA M. BONTA, Diana M. Bonta,
R.N., Dr., P.h.D, as the Director
of the California Department of
Health Services,
             Defendants-Appellants.
                                        
                   Filed January 17, 2006

          Before: Mary M. Schroeder, Chief Judge.
806             CHAMBER   OF   COMMERCE v. LOCKYER
                               ORDER

   Upon the vote of a majority of nonrecused regular active
judges of this court,1 it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.




  1
   Judge Berzon is recused.
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