3:19-cv-00159-JAG) JANE D. DICOCCO, M.D. v. MERRICK B. GARLAND, Attorney General, United States Department of Justice

FILED: August 30, 2022
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 20-1342
(3:19-cv-00159-JAG)
___________________
JANE D. DICOCCO, M.D.,
Plaintiff – Appellant,
v.
MERRICK B. GARLAND, Attorney General, United States Department of Justice,
Defendant – Appellee.
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AARP; AARP FOUNDATION,
Amici Supporting Rehearing Petition.
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O R D E R
___________________
GREGORY, Chief Judge:
A panel of this Court considered Dr. Jane DiCocco’s appeal of the district court’s
disposition of her Title VII and Age Discrimination in Employment Act (“ADEA”) claims
against the Attorney General of the United States. The panel reversed the dismissal of
DiCocco’s complaint for lack of Article III standing and remanded her Title VII claim for
further proceedings, but affirmed the dismissal of her ADEA claim because “the ADEA

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provision applicable to federal-sector employees does not provide a disparate-impact cause
of action,” DiCocco v. Garland, 18 F.4th 406, 410 (4th Cir. 2021), and thus “her claim
does not fall within the government’s waiver of sovereign immunity.” Id.
DiCocco petitioned for rehearing en banc, and the parties briefed the matter, with
the government taking the position that the ADEA’s federal-sector provision, 29 U.S.C.
§ 633a(a), does not encompass a disparate-impact liability claim. We granted DiCocco’s
petition for rehearing en banc, DiCocco v. Garland, No. 20-1342, 2022 WL 832505 (4th
Cir. Mar. 21, 2022), and oral argument is scheduled for September 15, 2022.
By letter of August 3, 2022, the government informed the Court that, contrary to its
position articulated in its March 2022 en banc briefing, it has now determined disparate-
impact claims are cognizable under the federal-sector provision of the ADEA. In light of
the government’s change in position, we now remove this case from the Court’s September
argument calendar and return the case to the panel to vacate the district court’s dismissal
of the complaint for lack of Article III standing and to remand DiCocco’s ADEA and Title
VII claims for consideration by the district court in the first instance.
The motion of Amici AARP and AARP Foundation for leave to participate in the oral
argument of this case is dismissed as moot. Entered at the direction of Chief Judge Gregory
with the concurrences of Judges Wilkinson, Niemeyer, Motz, King, Agee, Wynn, Diaz,
Thacker, Harris, Richardson, Quattlebaum, Rushing, Heytens, and Senior Judge Floyd.
FOR THE COURT
/s/ Patricia S. Connor
Clerk

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