Jillian Lesko v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JILLIAN LESKO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1823
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00715-CNL, Judge Carolyn N. Lerner.
______________________
SUA SPONTE HEARING EN BANC
______________________
D IMITRIOS VASILIOU K OROVILAS , Wucetich & Korovilas
LLP, El Segundo, CA, for plaintiff-appellant. Also repre-
sented by J ASON MATTHEW WUCETICH ; MICHAEL S.
MORRISON, Alexander Morrison & Fehr LLP, Los Angeles,
CA.
REBECCA SARAH K RUSER , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by REGINALD T HOMAS BLADES , J R., P ATRICIA M.
MCCARTHY , BRETT A. SHUMATE.
______________________
Case: 23-1823 Document: 49 Page: 1 Filed: 03/18/2025

-- 1 of 3 --

LESKO v. US 2
Before M OORE, Chief Judge, L OURIE, D YK, P ROST , REYNA,
T ARANTO, CHEN, HUGHES , STOLL , CUNNINGHAM , and
STARK, Circuit Judges.1
P ER CURIAM .
O R D E R
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,
I T I S O RDERED T HAT :
(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 dis-
qualified 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 ques-
tions:
a. Considering Loper Bright Enterprises v. Rai-
mondo, 603 U.S. 369 (2024), how should “offi-
cially ordered or approved” in 5 U.S.C.
§ 5542(a) be interpreted?
b. Is this a case in which “the agency is author-
ized to exercise a degree of discretion” such
that OPM has authority to adopt its writing
requirement? Loper, 603 U.S. at 394.
1 Circuit Judge Newman did not participate.
Case: 23-1823 Document: 49 Page: 2 Filed: 03/18/2025

-- 2 of 3 --

LESKO v. US 3
c. Is there a statutory provision (e.g., 5 U.S.C.
§§ 1104, 5548) that provides such authority?
(3) Ms. Lesko’s en banc opening brief is due 60 days from
the date of this order. The United States’ en banc re-
sponse is due within 45 days of service of Ms. Lesko’s
en banc opening brief, and Ms. Lesko’s reply brief
within 30 days of service of the response brief. The par-
ties may file a supplemental appendix, if necessary to
cite additional material, within 7 days after service of
the reply brief. The court requires 26 paper copies of
all briefs and any appendices provided by the filer
within 5 business days from the date of electronic filing
of the document. The parties’ briefs must comply with
Fed. Cir. R. 32(b)(1).
(4) Any briefs of amicus curiae may be filed without con-
sent and leave of the court. Any amicus brief support-
ing Ms. Lesko’s position or supporting neither position
must be filed within 14 days after service of Ms. Lesko’s
en banc opening brief. Any amicus brief supporting the
United States’ position must be filed within 14 days af-
ter service of the United States’ response brief. Amicus
briefs must comply with Fed. Cir. R. 29(b).
(5) Oral argument will be held on September 12, 2025, at
10 a.m. in Courtroom 201.
March 18, 2025
Date
F OR THE COURT
Case: 23-1823 Document: 49 Page: 3 Filed: 03/18/2025

-- 3 of 3 --