Late yesterday, the Federal Circuit released a precedential order sua sponte granting en banc review of an appeal from a judgment of the Court of Federal Claims. In the order, the Federal Circuit requests new briefing related to the effect of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo on the interpretation of statutory provisions governing actions of the Office of Personnel Management. Notably, Loper Bright Enterprises v. Raimondo overruled Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., which required courts to defer to agencies’ interpretations of ambiguous language in statutes meant for implementation by those agencies. Here is the introduction to the order.
Lesko v. United States (Precedential Order)
This case was argued before a panel of three judges on October 9, 2024. A sua sponte request for a poll on whether to consider this case was made. A poll was conducted, and a majority of the judges who are in regular active service voted for sua sponte en banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) This case will be heard en banc under 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 40(c). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified in accordance with the provisions of 28 U.S.C. § 46(c).
(2) The parties are requested to file new briefs, which shall be limited to addressing the following questions:
a. Considering Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), how should “officially ordered or approved” in 5 U.S.C. § 5542(a) be interpreted?
b. Is this a case in which “the agency is authorized to exercise a degree of discretion” such that OPM has authority to adopt its writing requirement? Loper, 603 U.S. at 394.
c. Is there a statutory provision (e.g., 5 U.S.C. §§ 1104, 5548) that provides such authority?