Procopio v. Wilkie

United States Court of Appeals
for the Federal Circuit
______________________
ALFRED PROCOPIO, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1821
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
______________________
SUA SPONTE HEARING EN BANC
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
and STOLL, Circuit Judges. ∗
PER CURIAM.
∗
Circuit Judge Hughes did not participate.
2 PROCOPIO v. WILKIE
ORDER
This case was argued before a panel of three judges on
May 4, 2018. The panel sua sponte requested a poll on
whether to consider this case en banc. A poll was con-
ducted, and a majority of the judges who are in regular
active service voted for en banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) The court sua sponte orders that this case be heard
en banc under 28 U.S.C. § 46 and Federal Rule of
Appellate Procedure 35(a). The en banc court shall
consist of all circuit judges in regular active service
who are not recused or disqualified.
(2) The parties are requested to file new briefs. The
briefs should address the following issues:
a. Does the phrase “served in the Republic of
Vietnam” in 38 U.S.C. § 1116 unambiguously
include service in offshore waters within the
legally recognized territorial limits of the
Republic of Vietnam, regardless of whether
such service included presence on or within
the landmass of the Republic of Vietnam?
i. What role, if any, does the pro-
claimant canon play in this analysis?
(3) The en banc briefs and briefs of any amici curiae
shall be electronically filed in the ECF system, and
thirty paper copies of each brief and any appendix
shall be filed with the court. Two paper copies of
all filings shall be served on opposing counsel.
(4) Mr. Procopio’s en banc brief is due 45 days from the
date of this order. Any amicus brief supporting Mr.
Procopio’s position or supporting neither position is
due within 10 days thereafter. The Secretary’s re-
PROCOPIO v. WILKIE 3
sponse brief is due within 30 days of service of Mr.
Procopio’s en banc brief. Any amicus brief support-
ing the Secretary’s position is due within 10 days
thereafter. Mr. Procopio’s reply brief is due within
15 days of service of the Secretary’s response brief.
Briefs shall adhere to the type-volume limitations
set forth in Federal Rule of Appellate Procedure 32
and Federal Circuit Rule 32.
(5) Briefing should be limited to the issues set forth
above.
(6) The court invites the views of amici curiae. Any
such amicus briefs may be filed without consent
and leave of court, but otherwise must comply with
Federal Rule of Appellate Procedure 29 and Feder-
al Circuit Rule 29. All amicus briefs shall be filed
as stated above.
(7) This appeal will be heard en banc on the basis of
the new briefing ordered herein and oral argument.
(8) Oral argument will be scheduled at a later date.
FOR THE COURT
August 16, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court