David Kong v. Thomas Scully, in His Official Capacity as Director of Center for Medicare and Medicaid Services Tommy Thompson, in His Official Capacity as Secretary of the United States Department of Health and Human Services, the First Church of Christ, Scientist, Defendant-Intervenor-Appellee
Appeal Court of Appeals for the First Circuit, Case No. 02-15057

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357 F.3d 895

David KONG, Plaintiff-Appellant,
v.
Thomas SCULLY, in his official capacity as director of Center for Medicare and Medicaid Services; Tommy Thompson, in his official Capacity as Secretary of the United States Department of Health and Human Services, Defendants-Appellees,
The First Church of Christ, Scientist, Defendant-intervenor-Appellee.

No. 02-15057.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2003.

Filed September 2, 2003.

Amended February 6, 2004.

Robert J. Bruno, Burnsville, MN, for the plaintiff-appellant.

Lowell V. Sturgill, Jr., Department of Justice, Washington, D.C., for defendants-appellees Thomas Scully and Tommy Thompson.

Stephen M. Shapiro, Chicago, IL, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-00-04285-CRB.

Before: NOONAN, McKEOWN, and RAWLINSON, Circuit Judges.

Prior report: 341 F.3d 1132

ORDER

1

Judge McKeown's concurrence filed on September 2, 2003 is amended as follows:

2

Insert at Slip. Op. 12829 [341 F.3d at 1147] before "In defending an exclusively-religious...": "In the same vein, service providers would not be limited to religious institutions."

3

With this amendment, the panel has voted to deny the petition for rehearing. Judges McKeown and Rawlinson have voted to deny the petition for rehearing en banc and Judge Noonan recommends denying the petition for rehearing en banc.

4

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote whether to rehear the matter en banc. Fed. R.App. P. 35.

5

The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.

6

Appellant's motion of January 22, 2004 in which to file a reply brief is GRANTED.

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