William O. Schism and Robert L. Reinlie v. United States , 252 F.3d 1354 ( 2001 )

252 F.3d 1354 (Fed. Cir. 2001)

WILLIAM O. SCHISM and ROBERT L. REINLIE, Plaintiffs-Appellants,
v.
UNITED STATES, Defendant-Appellee.

99-1402

United States Court of Appeals for the Federal Circuit

June 13, 2001

Appealed from: United States District Court for the Northerne District of Florida, Chief Judge C. Roger Vinson

George E. Day, Day and Meade, P.A., of Fort Walton Beach, Florida, filed a response for plaintiffs-appellants.

E. Roy Hawkens, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, filed a combined petition for rehearing and rehearing en banc for defendant-appellee. With him on the brief was Stuart E. Schiffer, Acting Assistant Attorney General, and Barbara C. Biddle.

Before MAYER, Chief Judge, NEWMAN and MICHEL, Circuit Judges, PLAGER, Senior Circuit Judge, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN and DYK, Circuit Judges.

ORDER

1

A combined petition for panel rehearing and rehearing en banc having been filed by Defendant-Appellee, and a response thereto having been invited by the court and filed by Plaintiffs-Appellants, and the petition for rehearing having been referred to and denied by the panel that heard the appeal, and thereafter the petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service, and a poll having been taken, it is

2

ORDERED that the petition to rehear the appeal en banc is granted. The judgment of the court entered on February 8, 2001, and reported at 239 F.3d 1280, is vacated, and the opinion of the court accompanying the judgment is withdrawn.

3

The court has determined to rehear this case en banc to resolve the question of whether the promises of free lifetime medical care made to and accepted by Plaintiffs-Appellants should be afforded binding effect.

4

The parties are hereby directed to file new briefs, which shall include, but not be limited to, an analysis of three questions: (1) whether promises of free life-time medical care are enforceable in general, and in particular under the terms of 5 U.S.C. § 301; (2) in light of the history of these promisees actually receiving free medical care after retirement under annual appropriation and authorization bills passed by the Congress and thus arguably with its approval, to what extent has Congress ratified the promises of lifetime health care by funding the military health care system and permitting the military services to make good on their promises to retirees; and (3) of what relevance, if any, is Section 712 of Pub. L. 106-398 (Oct. 30, 2000) (National Defense Authorization, Fiscal Year 2001), to the decision of this appeal. All questions are to be analyzed anew.

5

An original and 30 copies of all briefs shall be filed and two copies shall be served on opposing counsel. Amici curiae may file briefs, due at the time of the brief that supports their position. Appellant's brief is due within 60 days. The due dates for the response brief and reply brief shall be computed in accordance with the rules of the court.

6

Oral argument will be scheduled by further order.