Cloer v. Secretary of Health and Human Services , 399 F. App'x 577 ( 2010 )


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  •            NOTE: This order is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    MELISSA CLOER, M.D.,
    Petitioner-Appellant,
    v.
    SECRETARY OF HEALTH AND HUMAN
    SERVICES,
    Respondent-Appellee.
    __________________________
    2009-5052
    __________________________
    Appeal from the United States Court of Federal
    Claims in 05-VV-1002, Judge Lawrence J. Block.
    __________________________
    Before RADER, Chief Judge, NEWMAN, LOURIE,
    CLEVENGER ∗ , BRYSON, GAJARSA, LINN, DYK, PROST, and
    MOORE, Circuit Judges.
    PER CURIAM.
    ORDER
    Respondent-Appellee filed a combined petition for
    panel rehearing and rehearing en banc. The panel re-
    quested a response from Petitioner-Appellant.
    ∗
    Judge Clevenger participated only in the deci-
    sion on panel rehearing.
    CLOER   v. HHS                                           2
    The petition for rehearing was considered by the
    panel that heard the appeal, ∗∗ and thereafter the petition
    for rehearing en banc and the response were referred to
    the circuit judges who are authorized to request a poll on
    whether to rehear the appeal en banc. A poll was re-
    quested, taken, and the court has decided that the appeal
    warrants en banc consideration.
    Upon consideration thereof,
    IT IS ORDERED THAT:
    (1) The petition of Respondent-Appellee for panel re-
    hearing is denied.
    (2) The petition of Respondent-Appellee for rehearing
    en banc is granted.
    (3) The court’s May 6, 2010 opinion is vacated, and
    the appeal is reinstated.
    (4) The parties are requested to file new briefs ad-
    dressing the following three questions:
    (a)    Should the discovery rule, used for example in
    medical malpractice cases, see United States v. Kubrick,
    
    444 U.S. 111
    , 120 (1979) and TRW, Inc. v. Andrews, 
    534 U.S. 19
    , 27-28 (2001), apply to 42 U.S.C. §300aa-16(a)(2)
    so that the statute of limitations does not begin to run
    until the claimant has knowledge or reason to know of the
    cause of her injury?
    (b) Should Brice v. Secretary of Health and Human
    Services, 
    240 F.3d 1367
     (Fed. Cir. 2001) be overruled to
    permit equitable tolling of 42 U.S.C. §300aa-16(a)(2)?
    ∗∗
    Chief Judge Michel, who was on the original mer-
    its panel, retired on May 31, 2010 and did not participate
    in the decision on rehearing.
    3                                              CLOER   v. HHS
    (c)    If equitable tolling is permitted, do the circum-
    stances of this case support equitable tolling?
    (5) This appeal will be heard en banc on the basis of
    the originally filed briefs and additional briefing ordered
    herein. The court will determine whether oral argument
    is appropriate after reviewing the briefs. An original and
    thirty copies of all originally filed briefs shall be filed
    within 20 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. Respondent-Appellee’s en banc brief
    is due within 45 days from the date of this order. Peti-
    tioner-Appellant’s en banc response brief is due within 40
    days of service of Respondent-Appellee’s new en banc
    brief, and Respondent-Appellee’s reply brief, if any, is due
    within 15 days of service of Petitioner-Appellant’s re-
    sponse brief. Briefs shall adhere to the type-volume
    limitations set forth in Federal Rule of Appellate Proce-
    dure 32 and Federal Circuit Rule 32.
    (6) Briefs of amici curiae will be entertained, and any
    such briefs may be filed without leave of court or the
    parties’ consent but otherwise must comply with Federal
    Rule of Appellate Procedure 29 and Federal Circuit Rule
    29.
    (7) If needed, oral argument will be held at a time
    and date to be announced later.
    FOR THE COURT
    October 25, 2010              /s/ Jan Horbaly
    ——————————                     ——————————
    Date                     Jan Horbaly
    Clerk
    CLOER   v. HHS                 4
    cc: Mari C. Bush, Esq.
    Anisha S. Dasgupta, Esq.
    

Document Info

Docket Number: 2009-5052

Citation Numbers: 654 F.3d 1322, 399 F. App'x 577, 2011 WL 3374302

Judges: Rader, Newman, Lourie, Bryson, Gajarsa, Linn, Dyk, Prost, Moore

Filed Date: 10/25/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024