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Click here for the full text of this decision FACTS:Treating the petition for rehearing en banc as a petition for panel rehearing, the court denies the petition for panel rehearing. The court denies the petition for rehearing en banc. DISSENT:Jerry E. Smith, J., with whom Jolly, Jones, Barksdale, Garza, Clement, and Pickering, JJ., dissent. “Because the panel majority has given insufficient attention to this court’s duty to enforce the Eleventh Amendment to the United States Constitution, I respectfully dissent. In the main, my reasons are the same as those that are cogently set forth in Judge Garza’s dissent, 318 F.3d at 417-21, in which he shows that”a challenge to the constitutionality of a statute underlying a [suit under Ex parte Young , 209 U.S. 123 (1908),] is a proper subject of an Eleventh Amendment immunity analysis and that consideration of such a challenge is within the scope of an interlocutory appeal from the denial of a claim of Eleventh Amendment immunity,’ id. at 421. “If a state is sued pursuant to an unconstitutional statute, the Eleventh Amendment grants it immunity from suit, not just immunity from ultimate liability. Logically, the constitutional question must be addressed on interlocutory appeal if that immunity is to be properly recognized. “It may be argued, as does the panel majority, that the foregoing analysis is undermined by the language the panel majority relies on from Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635 (2002). Even if Verizon is to be read as the panel majority interprets it, that reading must be reconciled with the overriding concerns underlying our and the Supreme Court’s immunity methodology. Because the panel majority’s approach calls into question this court’s Eleventh Amendment immunity jurisprudence, the issue is enbancworthy, and the court’s failure to grant en banc review is error. I therefore respectfully dissent.”

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