ORDER
The petition for rehearing en banc is denied for lack of a vote to rehear by a majority of the active circuit judges. See Fed.R.App.P. 35(a). Judges ROSS, FAGG, BOWMAN and MAGILL would grant the rehearing en banc. The petition for rehearing by the panel is also denied.
In denying the petition, we note that in University of Tennessee v. Elliott,
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