ORDER
Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion, Hodgers-Durgin v. De La Vina, No. 97-16449, slip op. at 193 (9th Cir. Jan. 12, 1999), is withdrawn.