United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed April 13, 2001
No. 99-1433
Slinger Drainage, Inc.,
Petitioner
v.
Environmental Protection Agency,
Respondent
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Before: Edwards, Chief Judge; Williams, Ginsburg,
Sentelle, Henderson, Randolph, Rogers, Tatel and Garland,
Circuit Judges.
O R D E R
Upon consideration of petitioner's petition for rehearing en
banc, and the absence of a request by any member of the
court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
A statement of Circuit Judge Williams dissenting from the
denial of rehearing en banc is attached.
A separate Memorandum Opinion supporting the denial of
rehearing is attached to the order denying the petition for
panel rehearing.
Williams, Circuit Judge, dissenting: I am not persuaded
by the court's view that Rule 26(a) of the Federal Rules of
Appellate Procedure cannot be reconciled with 33 U.S.C.
s 1319(g)(8). Rule 26(a) sets up a general rule on how to
apply a provision that sets forth a "period" (i.e., time limit):
Don't count the day "that begins the period." Then the
substantive statute identifies a "period," 30 days, that "be-
gins" on the date the civil penalty order is issued. One can
put the two together by saying that the substantive statute
identifies the "day that begins the period" as the issuance
date; Rule 26(a) tells us to exclude that day. See also
American Federation of Government Employees, AFL-CIO
v. Federal Labor Relations Authority, 802 F.2d 47, 48 (2d
Cir. 1986) ("The statute [5 U.S.C. s 7123(a)] declares that the
60-day period begins on the date the order is issued, but does
not direct that the date of issuance be counted as part of that
period.").