## United States Court of Appeals for the Federal Circuit

04-3442
LOURDES M. GARCIA,
Petitioner,

v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.

Katherine A. McDonough , Baptiste & Wilder, P.C., of Washington, DC, argued for petitioner.
Todd M. Hughes , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director; Deborah A. Bynum , Assistant Director; and Steven J. Abelson , Attorney. Of counsel on the brief was Francesca Alvaro , Attorney, Associate Chief Counsel’s Office, United States Customs and Border Protection, United States Department of Homeland Security, of Miami, Florida.
Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Feder a l Circuit

04-3442

LOURDE S M. GARCIA,

P e t i t i o n e r ,

v.

DEP A RTM E NT OF HOMELAND SECURITY,

R e s p o n d e n t

.

Before MICHEL, Chief Judge , NEWMAN, MAYER, LOURIE, CLEVENG E R, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit J udges

. PER CURI AM.

O R D E R

This cas e , having been argued before a panel of three judges on May 6, 2005,
and thereafter having been referred to the circuit judges who are in regular active
service and a poll having been requested and taken,

IT IS ORDERED THAT:
The Court sua sponte orders that this case be heard en banc.
The parties are invited to submit additi onal briefs addressing the following iss u es: (1) Whether 5 U.S.C. § 7701 should be construed to incorporate a non-frivolous
allegation standard for establis hing the jurisdiction of the Merit Systems

Protection Board.
(2) Whether, if 5 U.S.C. § 7701 is ambiguous as to the standard for jurisdiction, the
Board’s regulation at 5 C.F.R. § 1201.56(a)(2) is entitled to Chevr o n deference.(3) Whether, if 5 U.S.C. § 7701 inc o rporates a non-frivol ous allegation standard for
establishing the jurisdiction of the B oar d, it should be c o n s trued to also
incorporate a standard that requires a non- frivolous allegation be supported by

some evidence.

This case will be heard en banc on the basi s of the briefs al ready filed and any
additional briefs addressing the i ssues set forth above. An original and thirty copies of
all additional briefs shall be filed, and two c opies served on opposing counsel. Suc h

additional briefs shall be file d simultaneously by the parties, sixty days from the date of
this Order, and shall not ex ceed 7,000 words in length.
The Merit Systems Protection Board (“Boar d”) is invited to submit an amicus

curiae brief

. The brief of the Board also s hall be limited to 7,000 words, shall be filed
within sixty days from the date of this Order, and shall comply with Fed. R. App. P. 29

and Feder al Circuit Rule 29. Motions for leav e to file other amicus curiae briefs may

also be submitted.
Oral argument is scheduled f o r 10 a.m. on Thur sday, October 6, 2005, in

Courtroom 201. Counsel for eac h side shall have 30 minutes to argue. Counsel for t he
Board shall have 20 minutes to argue.
MAYER, Circuit Judge , dissents.

FOR THE COURT

June 17, 2005 s/Jan Horbaly Date Jan Horbaly C l e r k

cc: Katherine A. McDonough, Esq. Todd M. Hughes, Esq.

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