Percipient.ai, Inc. v. United States, Caci, Inc.-Federal

United States Court of Appeals
for the Federal Circuit
______________________
PERCIPIENT.AI, INC.,
Plaintiff-Appellant
v.
UNITED STATES, CACI, INC.-FEDERAL,
Defendants-Appellees
______________________
2023-1970
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00028-EGB, Senior Judge Eric G. Bruggink.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, filed a combined petition for panel rehearing
and rehearing en banc for defendant-appellee United
States. Also represented by BRIAN M. BOYNTON, P ATRICIA
M. MCCARTHY , CORINNE ANNE N IOSI.
SAMUEL CHARLES K APLAN, Boies Schiller Flexner LLP,
Washington, DC, filed a response to the petition for plain-
tiff-appellant. Also represented by HAMISH HUME, ERIC J.
MAURER , G INA ALICIA ROSSMAN.
Case: 23-1970 Document: 59 Page: 1 Filed: 11/22/2024

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PERCIPIENT. AI , INC. v. US 2
ANNE P ERRY , Sheppard Mullin Richter & Hampton
LLP, Washington, DC, for defendant-appellee CACI, Inc.-
Federal. Also represented by J ONATHAN SCOTT ARONIE,
T OWNSEND BOURNE, ARIEL D EBIN C OLLINSWORTH , L ILLIA
J O D AMALOUJI.
______________________
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
Appellee, The United States, filed a combined petition
for panel rehearing and rehearing en banc. A response to
the petition was invited by the court and filed by Appellant
Percipient.ai, Inc. (“Percipient”). The petition and re-
sponse were considered and thereafter referred to the cir-
cuit judges in regular active service. A poll was requested
and taken, and the court decided that the appeal warrants
en banc consideration.
Accordingly,
I T I S O RDERED T HAT :
(1) The combined petition for panel rehearing and re-
hearing en banc is granted. This case will be reheard en
banc under 28 U.S.C. § 46 and Federal Rule of Appellate
Procedure 35(a). The court en banc shall consist of all cir-
cuit judges in regular active service who are not recused or
disqualified, as well as any senior circuit judge who partic-
ipated in the panel decision and elects to participate as a
member of the court en banc, in accordance with the provi-
sions of 28 U.S.C. § 46(c).
1 Circuit Judge Newman did not participate.
Case: 23-1970 Document: 59 Page: 2 Filed: 11/22/2024

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PERCIPIENT . AI , INC. v. US 3
(2) The panel opinion in Percipient.ai, Inc., v. United
States, 104 F.4th 839 (Fed. Cir. 2024), is vacated, and the
appeal is reinstated.
(3) The parties are requested to file new briefs, which
shall be limited to standing under 28 U.S.C. § 1491(b)(1)
and address the following question: Who can be “an inter-
ested party objecting to . . . any alleged violation of statute
or regulation in connection with a procurement or a pro-
posed procurement” under 28 U.S.C. § 1491(b)(1)?
(4) The court will not revisit and does not require ad-
ditional briefing on the issues of task bar under the Federal
Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C.
§ 3406(f); subject matter jurisdiction under 28 U.S.C.
§ 1491(b)(1); and timeliness of claims under Blue & Gold
Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).
(5) Percipient’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 Percipient’s en
banc opening brief, and Percipient’s reply brief within 30
days of service of the response brief. The parties may file
a supplemental appendix, if necessary to cite additional
material, within 7 days after service of the reply brief. The
court requires 30 paper copies of all briefs and any appen-
dices 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).
(6) The court invites the views of amicus curiae. Any
amicus briefs may be filed without consent and leave of the
court. Any amicus brief supporting Percipient’s position or
supporting neither position must be filed within 14 days
after service of Percipient’s en banc opening brief. Any
amicus brief supporting the United States’ position must
be filed within 14 days after service of the United States’
response brief. Amicus briefs must comply with Fed. Cir.
R. 29(b).
Case: 23-1970 Document: 59 Page: 3 Filed: 11/22/2024

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PERCIPIENT. AI , INC. v. US 4
(7) This case will be heard en banc on the basis of the
briefing ordered herein and oral argument.
(8) Oral argument will be held at a time and date to be
announced later.
November 22, 2024
Date
F OR THE COURT
Case: 23-1970 Document: 59 Page: 4 Filed: 11/22/2024

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