On October 13, 2017, the United States Court of Appeals for the Federal Circuit granted a petition for rehearing en banc filed by the Department of Defense, and vacated the court’s panel opinion in Federal Education Association-Stateside Region v. Department of Defense. 841 F.3d 1362 (Fed. Cir. 2016).
The court’s panel decision reversed an arbitrator’s opinion after finding a due process violation. In its October 13, 2017 order that granted en banc review, the appeals court requested that the parties address the relevant cases and issues, but specifically requested that the parties address the 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). On May 14, 2018, a majority of the active judges of the court voted to dissolve the en banc court and referred the case to the original panel for further proceedings.
On October 13, 2017, the United States Court of Appeals for the Federal Circuit granted the Department of Defense’s petition for rehearing en banc. As noted above, the appeals court requested that the parties address the relevant cases and issues, and specifically the decisions in Sullivan and Ryder, cases that preceded and informed Stone. Then, the jurisdiction issue surfaced and in a March 6, 2018, Order, the appeals court requested that at oral argument the parties address whether the petition for review in this case was timely filed, including the question of when the decision of an arbitrator “issues” within the meaning of 5 U.S.C. § 7703(b)(1). Those oral arguments occurred on March 8, 2018. On March 13, 2018, the appeals court ordered the parties to file supplemental briefs within 30 days to address the court’s jurisdiction under 5 U.S.C. § 7703(b)(1). On May 14, 2018, a majority of the judges of the court voted to dissolve the en banc court and refer the case back down to the panel for further proceedings on the issues of timeliness and jurisdiction.