Fedora v. Merit Systems Protection Board

868 F.3d 1336, 2017 WL 3081696, 2017 U.S. App. LEXIS 13054

Opinions

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 bane.

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, — U.S. —, 137 S.Ct. 1975, 198 L.Ed.2d 527 (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,

It Is Ordered That:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on July 27, 2017.