United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

                       Filed April 4, 2000

                           No. 98-5530

                       Brett C. Kimberlin, 
                             Appellee

                                v.

                   J. Michael Quinlan, et al., 
                            Appellants

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 90cv01549)

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          On Appellants' Petition for Rehearing En Banc

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     BEFORE:  Edwards, Chief Judge;  Silberman, Williams, 
Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and 
Garland, Circuit Judges.

                            O R D E R

     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

     ORDERED that the petition be denied.

                              Per Curiam

                              FOR THE COURT:

 

                              Mark J. Langer, Clerk

     Circuit Judges Sentelle and Garland did not participate 
in the matter.

     A statement of Circuit Judge Henderson dissenting from 
the denial of rehearing en banc is attached.































Henderson, Circuit Judge, dissenting:

     I dissent from the denial of the appellants' petition for 
rehearing en banc for the reasons set forth in my panel 
dissent.  See Kimberlin v. Quinlan, 199 F.3d 496, 504-06 
(D.C. Cir. 1999).  Because the record, viewed in the light 
most favorable to the appellee, does not establish a constitu-
tional violation, the appellants are entitled to qualified immu-
nity and we should therefore reverse the district court flat 
out.  See Siegert v. Gilley, 500 U.S. 226 (1991).  Instead we 
remand for the appellee to resume his quest for evidence of 
an imagined wrong.  So doing, we waste the time and re-
sources of all involved.