           NOTE: This order is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

                MELISSA CLOER, M.D.,
                  Petitioner-Appellant,
                            v.
      SECRETARY OF HEALTH AND HUMAN
                 SERVICES,
             Respondent-Appellee.
               __________________________

                       2009-5052
               __________________________

    Appeal from the United States Court of Federal
Claims in 05-VV-1002, Judge Lawrence J. Block.
              __________________________

     Before RADER, Chief Judge, NEWMAN, LOURIE,
 CLEVENGER ∗ , BRYSON, GAJARSA, LINN, DYK, PROST, and
                MOORE, Circuit Judges.
PER CURIAM.
                       ORDER
   Respondent-Appellee filed a combined petition for
panel rehearing and rehearing en banc. The panel re-
quested a response from Petitioner-Appellant.

       ∗
           Judge Clevenger participated only in the deci-
sion on panel rehearing.
CLOER   v. HHS                                           2


    The petition for rehearing was considered by the
panel that heard the appeal, ∗∗ and thereafter the petition
for rehearing en banc and the response were referred to
the circuit judges who are authorized to request a poll on
whether to rehear the appeal en banc. A poll was re-
quested, taken, and the court has decided that the appeal
warrants en banc consideration.
   Upon consideration thereof,
   IT IS ORDERED THAT:
   (1) The petition of Respondent-Appellee for panel re-
hearing is denied.
    (2) The petition of Respondent-Appellee for rehearing
en banc is granted.
    (3) The court’s May 6, 2010 opinion is vacated, and
the appeal is reinstated.
    (4) The parties are requested to file new briefs ad-
dressing the following three questions:
    (a)    Should the discovery rule, used for example in
medical malpractice cases, see United States v. Kubrick,
444 U.S. 111, 120 (1979) and TRW, Inc. v. Andrews, 534
U.S. 19, 27-28 (2001), apply to 42 U.S.C. §300aa-16(a)(2)
so that the statute of limitations does not begin to run
until the claimant has knowledge or reason to know of the
cause of her injury?
   (b) Should Brice v. Secretary of Health and Human
Services, 240 F.3d 1367 (Fed. Cir. 2001) be overruled to
permit equitable tolling of 42 U.S.C. §300aa-16(a)(2)?

   ∗∗
        Chief Judge Michel, who was on the original mer-
its panel, retired on May 31, 2010 and did not participate
in the decision on rehearing.
3                                              CLOER   v. HHS


    (c)    If equitable tolling is permitted, do the circum-
stances of this case support equitable tolling?
     (5) This appeal will be heard en banc on the basis of
the originally filed briefs and additional briefing ordered
herein. The court will determine whether oral argument
is appropriate after reviewing the briefs. An original and
thirty copies of all originally filed briefs shall be filed
within 20 days from the date of filing of this order. An
original and thirty copies of new en banc briefs shall be
filed, and two copies of each en banc brief shall be served
on opposing counsel. Respondent-Appellee’s en banc brief
is due within 45 days from the date of this order. Peti-
tioner-Appellant’s en banc response brief is due within 40
days of service of Respondent-Appellee’s new en banc
brief, and Respondent-Appellee’s reply brief, if any, is due
within 15 days of service of Petitioner-Appellant’s re-
sponse brief. Briefs shall adhere to the type-volume
limitations set forth in Federal Rule of Appellate Proce-
dure 32 and Federal Circuit Rule 32.
    (6) Briefs of amici curiae will be entertained, and any
such briefs may be filed without leave of court or the
parties’ consent but otherwise must comply with Federal
Rule of Appellate Procedure 29 and Federal Circuit Rule
29.
   (7) If needed, oral argument will be held at a time
and date to be announced later.

                                   FOR THE COURT


     October 25, 2010              /s/ Jan Horbaly
    ——————————                     ——————————
          Date                     Jan Horbaly
                                   Clerk
CLOER   v. HHS                 4


cc: Mari C. Bush, Esq.
    Anisha S. Dasgupta, Esq.
