concurring.
This case confronts the court with a choice between a seemingly illogical Supreme Court rule, calling for a less-than-sensible result, on the one hand, or under-ruling the Supreme Court decision, here Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), on the other. This time the court has chosen the latter course. I cannot disagree; it remains to be seen whether the Supreme Court will.
FOR THE COURT.
ORDER
The Appellants filed a combined petition for rehearing and rehearing en banc. A response thereto was invited by the court, and filed by the Appellees. The petition for rehearing and response were referred to the panel that heard the appeal, and thereafter, the petition for rehearing en banc and response were referred to the circuit judges who are in regular active service. A poll having been taken, it is
ORDERED that the petition for rehearing en banc was granted; the judgment of the court entered on December 5, 2000, and reported at 284 F.3d 642 (Fed.Cir.2000), is hereby vacated; and the opinion of the court accompanying the judgment is withdrawn.
The en banc court returned this appeal to the merits panel, who issue the revised opinion that accompanies this order.
Judge Plager assumed senior status on November 30, 2000.