868 F.3d 1336 (Fed. Cir. 2017), 2015-3039, Fedora v. Merit Systems Protection Board

Docket Nº:2015-3039
Citation:868 F.3d 1336
Opinion Judge:Per Curiam.
Party Name:LAURENCE M. FEDORA, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent UNITED STATES POSTAL SERVICE, Intervenor
Attorney: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 Sys...
Judge Panel: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, dissenting from the denial of the petition for rehearing en banc. Plager, Circ...
Case Date:July 20, 2017
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1336

868 F.3d 1336 (Fed. Cir. 2017)

LAURENCE M. FEDORA, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

UNITED STATES POSTAL SERVICE, Intervenor

2015-3039

United States Court of Appeals, Federal Circuit

July 20, 2017

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

Fedora v. MSPB, 848 F.3d 1013, (Fed. Cir., Feb. 16, 2017)

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.

Page 1337

ON PETITION FOR REHEARING EN BANC

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 Systems Protection Board, 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.

DISSENT

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

The Supreme Court has recognized that its " recent cases evince a marked desire to curtail . . . drive-by jurisdictional rulings, which too easily can miss the critical differences between true jurisdictional conditions and nonjurisdictional limitations on causes of action." Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (internal quotation marks, brackets, and citations omitted); see

Scarborough v. Principi, 541 U.S. 401, 413, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (" Courts, including this Court, . . . have more than occasionally misused the term jurisdictional to describe emphatic time prescriptions in claim processing rules . . . ." (internal quotation marks, brackets, and citation omitted)). In Monzo v. Department of Transportation, a panel of this court stated that the predecessor statute to 5 U.S.C. § 7703(b)(1)(A) (2012) is " statutory, mandatory, [and] jurisdictional." 735 F.2d 1335, 1336 (Fed. Cir. 1984) (citation omitted). Nearly two decades later, we confirmed the jurisdictional nature of the statute, see

Oja v. Dep't of Army, 405 F.3d 1349, 1356-60 (Fed. Cir. 2005), which provides that " any petition for review [to this court] must be filed within 60 days after the [Merit Systems Protection Board (" MSPB" )] issues" its final decision, 5 U.S.C. § 7703(b)(1)(A). By holding that the statutory provision implicated this court's subject matter jurisdiction, the panel decision foreclosed the possibility of granting a petitioner equitable tolling...

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