Senior Circuit Judge McLaughlin was a member of the
initial three-judge panel that heard this appeal and istherefore eligible to participate in in banc rehearing. See28 U.S.C. § 46(c)(1).Senior Circuit Judges Calabresi, Sack, and Parker,
who assumed senior status during the course of in bancproceedings, are entitled to participate pursuant to 28U.S.C. § 46(c)(2).The Honorable Sonia Sotomayor, who was originally a
member of the in banc panel and who participated in oralargument, was elevated to the Supreme Court on August 8,2009.
Before:JACOBS, Chief Judge, McLAUGHLIN, CALABRESI,
12CABRANES, POOLER, SACK, SOTOMAYOR, PARKER,
3RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit4Judges. KATZMANN, Circuit Judge, took no part in5the consideration or decision of the case.67JACOBS, C.J., filed the majority opinion in which MCLAUGHLIN,8CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined.910CALABRESI, J., filed a dissenting opinion in which POOLER, SACK,11and PARKER, JJ., joined.1213POOLER, J., filed a dissenting opinion in which CALABRESI, SACK,14and PARKER, JJ., joined.1516SACK, J., filed a dissenting opinion in which CALABRESI, POOLER,17and PARKER, JJ., joined.1819PARKER, J., filed a dissenting opinion in which CALABRESI,20POOLER, and SACK, JJ., joined.212223Appeal from a judgment of the United States District Court24for the Eastern District of New York (Trager, J.) dismissing25Plaintiff-Appellant Maher Arar’s complaint against John