American Telephone and Telegraph Company, Plaintiff-appellant, v. the United States, Defendant/cross-appellant, 136 F.3d 793 (Fed. Cir. 1998)

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US Court of Appeals for the Federal Circuit - 136 F.3d 793 (Fed. Cir. 1998) March 9, 1998

C. Stanley Dees, McKenna & Cuneo, L.L.P., Washington, DC, for plaintiff-appellant. With him on the brief was J. Keith Burt.

Bryant G. Snee, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for defendant/cross-appellant. With him on the brief was Frank W. Hunger, Assistant Attorney General. Of counsel on the brief were Robert D. Hogue and James H. Haag, Office of General Counsel, Department of the Navy, Arlington, Virginia.

Caryl A. Potter, III, Sonnenschein Nath & Rosenthal, Washington, DC, for amici curiae. With him on the brief was Roger K. Heidenreich, St. Louis, Missouri.


A combined petition for rehearing and suggestion for rehearing in banc having been filed by the appellant, and a response thereto having been invited by the court and filed by the cross appellant, and amicus having been granted leave to file a brief in support of the appellant's combined petition for rehearing and suggestion for rehearing in banc, and the petition for rehearing having been referred to and acted upon by the panel that heard the appeal, and, thereafter, the suggestion for rehearing in banc having been referred to the judges in regular active service to determine whether the appeal should be reheard in banc, and a poll having been requested, it is

ORDERED that the petition for rehearing is denied, and it is further

ORDERED that the suggestion to rehear the appeal in banc is accepted; the judgment of the court entered on September 24, 1997, and reported at 124 F.3d 1471, is vacated; and the opinion of the court accompanying the judgment is withdrawn;

IT IS FURTHER ORDERED that new briefs shall be filed. Appellant's principal brief is due within 60 days of the date of filing of this order. The court sua sponte allows the amicus to file a brief at the time. The dates for filing the remaining briefs shall be in accordance with Fed. Cir. R. 31(a). An original and 30 copies of all briefs shall be filed and two copies shall be served on opposing counsel.

Oral argument will be scheduled by later order.