Richard M. Brock, Claimant-appellant, v. Hershel W. Gober, Acting Secretary of Veterans Affairs, Respondent-appellee, 222 F.3d 988 (Fed. Cir. 2000)

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US Court of Appeals for the Federal Circuit - 222 F.3d 988 (Fed. Cir. 2000)

August 22, 2000


Appealed from: United States Court of Appeals for Veteransie for The Claims, Judge Jonathan R. Steinberg

Stephen B. Kinnaird, Sidley & Austin, of Washington, DC, filed a petition for rehearing en banc for the claimant-appellant. With him on the brief was Ronald S. Flagg. Of counsel on the brief were Barton F. Stichman and Charlene Stoker Jones, National Veterans Legal Services Program, of Washington, DC.

William K. Olivier, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, filed a response for the respondent-appellee. With him on the brief were David W. Ogden, Assistant Attorney General, David M. Cohen, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Acting Assistant General Counsel, and David J. Barrans, Staff Attorney, Department of Veterans Affairs, Washington, DC.

Ronald L. Smith, Disabled American Veterans, of Washington, DC, filed an amicus curiae memorandum. Of counsel on the memorandum was Stephen L. Purcell.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, filed an amicus curiae brief for the National Organization of Veterans' Advocates.

Mark A. Venuti, of Geneva, New York, filed an amicus curiae brief for The American Legion.

ORDER

A petition for rehearing en banc was filed by the appellant, and a response thereto was invited by the court and filed by the appellee. An amicus curiae memorandum was filed by the Disabled American Veterans; separate amicus curiae briefs were filed by The National Organization of Veterans' Advocates and by The American Legion. A reply brief in support of the petition for rehearing en banc was filed by the appellant. The rehearing briefs were referred first to the original panel that heard the appeal, and, thereafter, to the judges in regular active service to determine whether the appeal should be reheard en banc, and a poll having been requested, and taken, it is

ORDERED that the petition for rehearing en banc is granted; the judgment of the court entered on May 2, 2000, and reported at 2000 WL 541130 (Fed. Cir.) is vacated; and the opinion of the court accompanying the judgment is withdrawn;

IT IS FURTHER ORDERED that new briefs shall be filed addressing the following questions:

1. Whether, under 38 U.S.C. 5107(a), a claimant for veterans benefits must make an evidentiary showing that the claim is "well grounded" before the Secretary of Veterans Affairs has any duty to assist the claimant in developing the facts pertinent to the claim? See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).

2. If the answer to question 1 is yes, what showing must be made in order to establish a "well grounded" claim? See Epps v. Gober, 126 F.3d at 1468.

3. If the answer to question 1 is no, what showing, if any, must be made in order to trigger an obligation on the part of the Secretary to provide assistance?

It would be helpful to the court's consideration of these questions if the parties would include in their presentations their understanding of the claims procedure, with particular attention to the functions of the "well grounded" claim requirement.

Appellant's principal brief is due within 60 days of the date of filing of this order. The court sua sponte allows amici to file briefs at that time. The dates for filing the remaining briefs shall be in accordance with Fed. Cir. R. 31(a). An original and 30 copies of all briefs shall be filed; two copies shall be served on all counsel of record for the parties and each amicus curiae.

Oral argument will be scheduled by further order.