                         NOTE: This order is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                2007-5063, -5064, -5089


                FRANK P. SLATTERY, JR., (on behalf of himself and on
       behalf of all other similarly situated shareholders of Meritor Savings Bank),

                                                        Plaintiff-Cross Appellant,

                                           and

                                  STEVEN ROTH,
                           and INTERSTATE PROPERTIES,

                                                        Plaintiffs-Cross Appellants,
                                            v.

                                   UNITED STATES,

                                                        Defendant-Appellant.


Appeal from the United States Court of Federal Claims in Case No. 93-CV-280,
Senior Judge Loren A. Smith.

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

PER CURIAM.

                                    ORDER

       Defendant-Appellant United States filed a combined petition for panel rehearing

and rehearing en banc.       The panel requested a response from Plaintiffs-Cross

Appellants, Frank P. Slattery, Jr., Steven Roth and Interstate Properties. Responses

were filed.

       The petition was considered by the panel that heard the appeal, and thereafter

by the court en banc.      The court has decided that the appeal warrants en banc
consideration.

      Upon consideration thereof,

      IT IS ORDERED THAT:

      (1)    The petition for panel rehearing is denied.

      (2)    The petition for rehearing en banc is granted.

      (3)    The court’s September 29, 2009 opinion is vacated, and the appeal is

             reinstated.

      (4)    The parties are requested to file new briefs addressing only the following

             issues:

                    (a)    Is the Federal Deposit Insurance Corporation a non-

                           appropriated fund instrumentality, and if so, what is the effect

                           on the jurisdiction of the Court of Federal Claims over this

                           suit against the United States?

                    (b)    What is the appropriate standard for determining whether an

                           entity is a non-appropriated fund instrumentality?

      (5)    This appeal will be heard en banc on the basis of the originally filed briefs,

             additional briefing ordered herein, and oral argument.         An original and

             thirty copies of all originally-filed briefs shall be filed within forty-two (42)

             days from the date of filing of this order. An original and thirty copies of

             new en banc briefs shall be filed, and two copies of each en banc brief

             shall be served on opposing counsel. The Defendant-Appellant shall file

             its new en banc brief within forty-two (42) days from the date of filing of

             this order. The response briefs of the Plaintiffs-Cross Appellants are due




2007-5063, -5064, -5089                      2
             within twenty-eight (28) days from the date of service of the Defendant-

             Appellant’s brief.   The Defendant-Appellant’s reply brief, if any, is due

             within fourteen (14) days from the date of service of the response. Briefs

             shall adhere to the type-volume limitations set forth in Federal Rule of

             Appellate Procedure 32 and Federal Circuit Rule 32.

       (6)   Briefs of amici curiae will be entertained, and any such amicus briefs may

             be filed without leave of court but otherwise must comply with Federal

             Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

       (7)   Oral argument will be held at a time and date to be scheduled later.



                                               FOR THE COURT

March 19, 2010                                  /s/ Jan Horbaly
     Date                                      Jan Horbaly
                                               Clerk

cc:   Thomas M. Buchanan
      Bradley Paul Smith
      Jeanne E. Davidson
      Dorothy Ashley Doherty




2007-5063, -5064, -5089                    3
