James R. Cook, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs

275 F.3d 1365 (Fed. Cir. 2002)

JAMES R. COOK, Claimant-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 00-7171

United States Court of Appeals for the Federal Circuit

January 4, 2002

Appealed from: United States Court of Appeals for Veterans Claims Judge Jonathan R. Steinberg

ON PETITION FOR REHEARING EN BANC

Kenneth M. Carpenter, Carpenter Chartered, of Topeka, Kansas, filed a petition for rehearing en banc for claimant-appellant.

Brian S. Smith, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, filed a response to the petition for rehearing en banc for respondent-appellee. With him on the response were Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director; and Deborah A. Bynum, Assistant Director.

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

Chief Judge MAYER and Circuit Judges NEWMAN, MICHEL, LOURIE, CLEVENGER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST join the order. Circuit Judge RADER concurs in the result.

O R D E R

STEINBERG, Judge.

1

A petition for rehearing en banc having been filed by James R. Cook, and a response thereto having been invited by the court and filed by Anthony J. Principi, Secretary of Veterans Affairs, and the petition for rehearing en banc having first been referred as a petition for rehearing to 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 for rehearing is denied; the petition to rehear the appeal en banc is granted; the judgment of the court entered on July 20, 2001, and reported at 258 F.3d 1311 (Fed. Cir. 2001), is vacated; and the opinion of the court accompanying the judgment is withdrawn. The en banc court shall consist of the circuit judges in regular active service and Senior Circuit Judge Friedman, who was a member of the merits panel that heard the appeal.

3

The parties are ordered to brief the following additional questions:

4

Whether this court's decision in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), should be overruled insofar as that case holds that the existence of "grave procedural error" renders a decision of the Veterans' Administration non-final?

5

Whether, if Hayre is overruled in this respect, a failure of the Secretary to assist the veteran under the law and regulations applicable at the time (affirmatively demonstrated by the record before the adjudicator in the particular case) can constitute clear and unmistakable error ("CUE") under 38 U.S.C. 5109A? See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

6

The case will be heard en banc on the basis of the briefs already filed and the additional briefs addressing the questions set forth above. Such additional briefs shall be filed simultaneously by the parties 45 days from the date of this Order, and shall not exceed 25 pages in length. An original and 30 copies of all briefs shall be filed, and two copies shall be served on opposing counsel.

7

Oral argument will be scheduled by later order.