Appealed from: United States Court of Federal Claims, Senior Judge James F. Merow

Charles W. Gittins, Law Offices of Charles W. Gittins, P.C., of Middletown, Virginia, for plaintiff-appellant.

Joseph Trautwein, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were David M. Cohen, Director; James M. Kinsella, Deputy Director; and Aileen M. Bell, Attorney. Of counsel was Opher Shweiki, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, Attorney of Record.

This case was argued before a panel of this court on July 10, 2000. Thereafter, a poll of the judges in regular active service was conducted to determine whether the appeal should be heard en banc. Upon consideration thereof, IT IS ORDERED THAT:

(1)The court by its own action grants a hearing en banc. The en banc court shall consist of the circuit judges in regular active service and Senior Circuit Judge Plager, who was a member of the panel that heard oral argument.

(2)An original and 30 copies of new briefs shall be filed with the court and two copies served on opposing counsel. The parties are invited to address the question of whether Hurick v. Lehman, 782 F.2d 984 (Fed. Cir. 1986), should be overruled. Amici curiae may file briefs, due at the time of the brief that supports their position. Gabriel J. Martinez's brief is due within 60 days. The due dates for the response and reply briefs shall be computed in accordance with the court's rules.

(3)Oral argument will be established by later order.