Federal Education Association v. Defense , 873 F.3d 903 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
FEDERAL EDUCATION ASSOCIATION -
STATESIDE REGION, KAREN GRAVISS,
Petitioners
v.
DEPARTMENT OF DEFENSE, DOMESTIC
DEPENDENTS ELEMENTARY AND SECONDARY
SCHOOL,
Respondent
______________________
2015-3173
______________________
Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
DOROTHY LOUISE LEE, Federal Education Association
Stateside Region, Dublin, OH, filed a response to the
petition for petitioners.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, filed a petition for rehearing en banc for re-
spondent. Also represented by CLAUDIA BURKE, ROBERT E.
KIRSCHMAN, JR., CHAD A. READLER.
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
ORDER
Respondent Department of Defense filed a petition for
rehearing en banc. A response was invited and filed. The
petition and response were considered by the panel that
heard the appeal, see Fed. Cir. R. 35 Practice Notes, and
thereafter referred to the circuit judges in regular active
service. A poll was requested and taken, and the court
decided that the appeal warrants en banc attention.
On consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing en banc filed by Re-
spondent Department of Defense is granted.
(2) The court’s opinion in Federal Education Associa-
tion—Stateside Region v. Department of Defense,
841 F.3d 1362 (Fed. Cir. 2016), is vacated and the
appeal is reinstated.
(3) The Petitioners and Respondent are requested to
file supplemental briefs. As part of the briefing of
the relevant cases and issues, the parties are re-
quested to address this court’s decisions in Sullivan
v. Department of Navy, 720 F.2d 1266 (Fed. Cir.
1983) and Ryder v. United States, 585 F.2d 482 (Ct.
Cl. 1978).
(4) The supplemental en banc briefs and briefs of any
amici curiae shall be electronically filed in the ECF
system, and thirty paper copies of each brief shall
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 3
be filed with the court. Two paper copies of all fil-
ings shall be served on opposing counsel. Briefs
shall adhere to the type-volume limitations set
forth in Federal Rule of Appellate Procedure 32 and
Federal Circuit Rule 32.
(5) The supplemental brief of Petitioners must be filed
within 30 days of this order. Any amicus brief sup-
porting Petitioners’ position or supporting neither
position must be filed within 10 days thereafter.
Respondent’s supplemental brief must be filed
within 60 days of this order. Any amicus briefs
supporting Respondent’s position must be filed
within 10 days thereafter. Petitioners reply brief
must be filed within 14 days after Respondent’s
supplemental brief.
(6) In addition, the Petitioners and Respondent are di-
rected to file with the court thirty paper copies of
their original briefs and any Appendix within 17
days from the date of this Order.
(7) The court invites the views of amici curiae. Any
such briefs may be filed without consent and leave
of court, but otherwise must comply with Federal
Rule of Appellate Procedure 29 and Federal Circuit
Rule 29. All amicus briefs shall be filed as stated
above.
(8) The appeal will be heard en banc on the basis of the
original briefs, the supplemental briefs ordered
herein, and oral argument.
(9) Oral argument will be scheduled at a later date.
FOR THE COURT
4 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
October 13, 2017 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court