Daryl Ford VALENZUELA, Plaintiff-Appellee, v. KRAFT, INC., Defendant-Appellant

815 F.2d 570

47 Fair Empl. Prac. Cas. (BNA) 644,
43 Empl. Prac. Dec. P 37,085
Daryl Ford VALENZUELA, Plaintiff-Appellee,
v.
KRAFT, INC., Defendant-Appellant.

No. 85-6348.

United States Court of Appeals,
Ninth Circuit.

April 22, 1987.

John W. Prager, Jr., P.C., Santa Ana, Cal., for defendant-appellant.

Cecil E. Ricks, Jr., Anaheim, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David V. Kenyon, Judge.

Before REINHARDT and HALL, Circuit Judges, and MUECKE,* District Judge.

ORDER

CYNTHIA HOLCOMB HALL, Circuit Judge.

1

The opinion of October 8, 1986 in the bound volume at 801 F.2d 1170 (9th Cir.1986) is amended by adding the following new paragraph to the end of footnote 3:

2

Similarly, our per curiam decision in Lofton v. Heckler, 781 F.2d 1390 (9th Cir.1986), is not to the contrary. First, in Lofton, the court construed a different act, the statute governing review of decisions of the Merit Systems Protection Board, 5 U.S.C. Sec. 7703(b)(2). Second, Lofton does not consider the effect of the Supreme Court's decisions in Zipes, Mohasco, Crown, Cork & Seal, or Baldwin County on its analytic assumptions. See 781 F.2d at 1392. We need not consider here whether the interpretation of 5 U.S.C. Sec. 7703(b)(2) offered in our Lofton opinion remains valid. However, we note that neither Lofton nor our prior cases upon which it relies considered the applicability of equitable tolling to the statutes of limitations involved.

3

With this amendment the panel has voted to deny the petition for rehearing. Judges Reinhardt and Hall reject the suggestion for rehearing en banc, and Judge Meucke recommends rejection of the suggestion for rehearing en banc.

4

The full court has been advised of the suggestion for rehearing en banc, and no active judge requested a vote on it. Fed.R.App.P. 35.

5

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.

*

Honorable Carl A. Muecke, Senior United States District Judge, District of Arizona, sitting by designation