at 1223-1250 (Hull, .I., dissenting). All Citations 994 F.3d 1244,28 Ha. L. Weekly Fed. C 2701 Footnotes Judges Tjoflat and Hull were members of the en banc Court that heard oral argument in this case, both having elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(1). Judges Jordan, Rosenbau