                          NOTE: This order is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                        2007-5083

                       NEBRASKA PUBLIC POWER DISTRICT,

                                                        Plaintiff-Appellant,

                                            v.

                                     UNITED STATES,

                                                        Defendant-Appellee.

Appeal from the United States Court of Federal Claims in case no. 01-CV-116, Judge
Francis M. Allegra.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL,
BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.

PER CURIAM.

                                        ORDER

       This case was argued before a panel of this court on December 3, 2007.

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 parties are

directed to file supplemental briefs that address the following question:

       Does the mandamus order issued by the United States Court of Appeals for the
       District of Columbia Circuit in Northern States Power Co. v. United States Dep’t
       of Energy, 128 F.3d 754 (D.C. Cir. 1997) preclude the United States from
       pleading the “unavoidable delay” defense to the breach of contract claim pending
       in the United States Court of Federal Claims, and if so, does the order exceed
       the jurisdiction of the District of Columbia Circuit?
         (2)   This appeal will be heard en banc on the basis of supplemental briefs

addressing the issue set forth above. Thirty copies of the supplemental briefs shall be

filed, and two copies shall be served on opposing counsel.          The parties shall file

simultaneous supplemental briefs which are due in the court within 30 days of the date

of filing of this order. No further briefing will be entertained. Supplemental briefs shall

adhere to the type-volume limitations for principal briefs set forth in Federal Rule of

Appellate Procedure 32 and Federal Circuit Rule 32.

         (3)   Briefs for amici curiae may be entertained if accompanied by a motion for

leave of court and if the briefs comply with Federal Rule of Appellate Procedure 29 and

Federal Circuit Rule 29. Any such briefs are due within 30 days of the date of filing of

this order.

         (4)   Oral argument will be resolved at a later date.

                                                 FOR THE COURT


      June 4, 2009                               /s/ Jan Horbaly
         Date                                    Jan Horbaly
                                                 Clerk

cc:      Alexander D. Tomaszczuk, Esq.
         Harold D. Lester, Jr., Esq.




2007-5083                               -2-
