LAURENCE M. FEDORA, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent UNITED STATES POSTAL SERVICE, Intervenor
for review of the Merit Systems Protection Board in No.
PETITION FOR REHEARING EN BANC
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.
Prost, Chief Judge, Newman, Plager [*] , Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit
Wallach, Circuit Judge, with whom Newman and O'Malley,
Circuit Judges, join, dissent from the denial of the petition
for rehearing en banc.
Circuit Judge, dissents without opinion from the denial of
the petition for rehearing en banc.
Plager, Circuit Judge, dissents from the denial of panel
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.
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.
consideration thereof, ...