FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STATE OF CALIFORNIA, ex rel.  Edmund G. Brown, Jr., Plaintiff-Appellant, v. SAFEWAY, INC., a Safeway No. 08-55671 Company doing business as Vons; ALBERTSON’S, INC.; RALPHS  D.C. No. 2:04-cv-00687-AG- GROCERY COMPANY, a division of the Kroger Company; FOOD 4 LESS SS FOOD COMPANY, a division of the Kroger Company; VONS COMPANIES INC., an indirect, wholly owned subsidiary of Safeway, Inc., Defendants-Appellees,  STATE OF CALIFORNIA, ex rel.  Edmund G. Brown, Jr., Plaintiff-Appellee, v. SAFEWAY, INC., a Safeway No. 08-55708 Company doing business as Vons; D.C. No. ALBERTSONS, INC.; RALPHS GROCERY  2:04-cv-00687-AG- COMPANY, a division of the Kroger SS Company; FOOD 4 LESS FOOD ORDER COMPANY, a division of the Kroger Company; VONS COMPANIES INC., an indirect, wholly owned subsidiary of Safeway, Inc., Defendants-Appellees.  2655 2656 STATE OF CALIFORNIA v. SAFEWAY, INC. Filed February 11, 2011

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.

Judges Bybee and Murguia did not participate in the delib- erations or vote in this case.