Rezi P. Forshey, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs

239 F.3d 1224 (Fed. Cir. 2001)

REZI P. FORSHEY, Claimant-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

99-7064

United States Court of Appeals for the Federal Circuit

February 5, 2001

Appealed from: United States Court of Appeals for Veterans Clai ms Judge Kenneth B. Kramer

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, filed a reply for claimant-appellant.

Virginia M. Lum, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, filed a combined petition for rehearing and suggestion for rehearing en banc for respondent-appellee. With her on the brief wereDavid W. Ogden, Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were DonaldaE.aZeglin, Deputy Assistant General Counsel, andDavid J. Barrans, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, NEWMAN, MICHEL, 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 Respondent-Appellee, and a response thereto having been invited by the court and filed by Claimant-Appellant, and the petition for rehearing having been referred 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 September 20, 2000, and reported at 226 F.3d 1299 (Fed. Cir. 2000), is vacated; and the opinion of the court accompanying the judgment is withdrawn.

3

This court has determined to hear this case en banc in order to resolve questions concerning the jurisdiction of this court, under 38 U.S.C. §a7292 (1994), to hear appeals from the United States Court of Appeals for Veterans Claims. The en banc deliberations will focus on this case and on the rationale and holdings of this court in the following cases: Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000); Smith v. West, 214 F.3d 1331 (Fed. Cir. 2000); In re Bailey, 182 F.3d 860 (Fed. Cir. 1999).

4

In particular, the parties are ordered to brief the following questions:

5

1. Is the rationale and holding in this case consistent with the rationale and holdings in Smith and Belcher?

6

2. If the rationale and holding in this case is not consistent with the rationale and holdings in Smith and Belcher, should Smith andBelcher be overruled?

7

3. If Smith and Belcher are not overruled, are the rationale and holdings in those cases consistent with the rationale and holding inIn re Bailey?

8

4. If the rationale and holdings in Smith and Belcher are not consistent with the rationale and holding in In re Bailey, which of Smith andBelcher or In re Bailey should be overruled?

9

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. An original and 30 copies of all briefs shall be filed and two copies shall be served on opposing counsel. 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.

10

Oral argument will be scheduled by later order.