FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL JAMES BERGER, a single  man also known as Magic Mike, Plaintiff-Appellee, v. CITY OF SEATTLE; VIRGINIA No. 05-35752 ANDERSON, Director of Seattle Center; MICHAEL ANDERSON,  D.C. No. CV-03-03238-JLR Emergency Service Manager for Seattle Center; TEN UNKNOWN ORDER EMPLOYEES/OFFICERS, of the Seattle Center and the City of Seattle, all in both their individual and official capacities, Defendants-Appellants.  Filed July 14, 2008

ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

8901 PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2008 Thomson Reuters/West.