Brett C. Kimberlin and Darrell Rice v. United States Department of Justice and Bureau of Prisons , 351 F.3d 1166 ( 2003 )

351 F.3d 1166

Brett C. KIMBERLIN and Darrell Rice, Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE and Bureau of Prisons, Appellees.

No. 01-5387.

United States Court of Appeals, District of Columbia Circuit.

Filed October 28, 2003.

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

PER CURIAM

1

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 the court in regular, active service did not vote in favor of the petition. Upon consideration of the foregoing, it is

2

ORDERED that the petition be denied.

3

A statement by Circuit Judge Tatel concurring in the denial of rehearing en banc is attached.

4

TATEL, Circuit Judge, concurring in the denial of rehearing en banc:

5

Because the panel now rests its decision on Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), rather than on the proposition that the government may refuse to provide inmates the infrastructural 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 extraordinarily narrow scope—applying as it does to only electric 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.