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Fedora v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

July 20, 2017

LAURENCE M. FEDORA, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent UNITED STATES POSTAL SERVICE, Intervenor

         Petition for review of the Merit Systems Protection Board in No. SF-0752-13-0433-I-1.

         ON PETITION FOR REHEARING EN BANC

          Eric Shumsky, Orrick, Herrington & Sutcliffe LLP, Washington, DC, filed a petition for rehearing en banc for petitioner Laurence M. Fedora. Also represented by Thomas Mark Bondy, Hannah Garden-Monheit; Christopher J. Cariello, New York, NY.

          Jeffrey Gauger, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, filed a response to the petition for respondent Merit Systems Protection Board. Also represented by Bryan G. Polisuk, Katherine M. Smith.

          Russell James Upton, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, filed a response to the petition for intervenor United States Postal Service. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Patricia M. McCarthy.

          Before Prost, Chief Judge, Newman, Plager [*] , Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

          Wallach, Circuit Judge, with whom Newman and O'Malley, Circuit Judges, join, dissent from the denial of the petition for rehearing en banc.

          Stoll, Circuit Judge, dissents without opinion from the denial of the petition for rehearing en banc.

          Plager, Circuit Judge, dissents from the denial of panel rehearing.

          ORDER

          Per Curiam

         Petitioner Laurence M. Fedora filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by intervenor United States Postal Service and respondent Merit Systems Protection Board. The court requested supplemental briefing in light of the Supreme Court's holding in Perry v. Merit System Protection Board, 137 S.Ct. 1975 (2017), regarding our jurisdiction to hear this appeal. Mr. Fedora responded, indicating that he elects to abandon his discrimination claims to avoid the jurisdictional concern addressed in that case. Pet'r's Resp. to Suppl. Authority, ECF No. 78. The government agrees that with this waiver, we have jurisdiction over his appeal.

         The petition was first referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc and the responses were referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

         Upon consideration thereof, ...


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