Case: 20-1321    Document: 50      Page: 1    Filed: 05/06/2020




   United States Court of Appeals
       for the Federal Circuit
                   ______________________

     NATIONAL ORGANIZATION OF VETERANS'
               ADVOCATES, INC.,
                   Petitioner

                              v.

        SECRETARY OF VETERANS AFFAIRS,
                    Respondent
              ______________________

                         2020-1321
                   ______________________

     Petition for review pursuant to 38 U.S.C. Section 502.
                   ______________________

       ON PETITION FOR HEARING EN BANC
               ______________________

     ROMAN MARTINEZ, Latham & Watkins LLP, Washing-
 ton, DC, filed a petition for hearing en banc for petitioner.
 Also represented by SHANNON MARIE GRAMMEL, BLAKE
 STAFFORD.

     ISAAC B. ROSENBERG, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, filed a response to the petition for respondent.
 Also represented by JOSEPH H. HUNT, ROBERT EDWARD
 KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; CHRISTOPHER O.
 ADELOYE, JULIE HONAN, Y. KEN LEE, Office of General
 Counsel, United States Department of Veterans Affairs,
 Washington, DC.
Case: 20-1321      Document: 50     Page: 2    Filed: 05/06/2020




 2                     NOVA   v. SECRETARY OF VETERANS AFFAIRS




     MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
 LLP, Washington, DC, for amicus curiae Military-Veterans
 Advocacy Inc. Also represented by JEFFREY T. QUILICI,
 Austin, TX; JOHN B. WELLS, Law Office of John B. Wells,
 Slidell, LA.

     STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-
 ington, DC, for amici curiae National Veterans Legal Ser-
 vices Program, Paralyzed Veterans of America, Veterans of
 Foreign Wars. Amicus curiae National Veterans Legal Ser-
 vices Program also represented by BARTON F. STICHMAN,
 National Veterans Legal Services Program, Washington,
 DC.
                  ______________________

       Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
     O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
                 and STOLL, Circuit Judges. *
 PER CURIAM.
                          ORDER
      The National Organization of Veterans’ Advocates,
 Inc. (“NOVA”) filed a petition for initial hearing en banc. A
 response thereto was invited by the court and filed by the
 Secretary of Veterans Affairs. NOVA was granted leave to
 file a reply in support of the petition. Military-Veterans
 Advocacy Inc. and the National Veterans Legal Services
 Program, Paralyzed Veterans of America, and the Veterans
 of Foreign Wars were granted leave to file briefs as amici
 curiae in support of the petition.
     The petition was referred to the circuit judges who are
 in regular active service. A poll was requested and taken,



       *   Circuit Judge Moore did not participate.
Case: 20-1321     Document: 50     Page: 3    Filed: 05/06/2020




 NOVA   v. SECRETARY OF VETERANS AFFAIRS                    3



 and the court has decided that the petition warrants en
 banc attention.
    Upon consideration thereof,
    IT IS ORDERED THAT:
    (1) The petition for hearing en banc is granted.
    (2) The parties are requested to file briefs addressing
        the following two issues:
            A. Whether this court has jurisdiction under 38
               U.S.C. § 502 to review provisions of the De-
               partment of Veterans Affairs’ Adjudication
               Procedures Manual M21-1 that are binding
               on the agency’s initial adjudicators but not on
               the Board of Veterans’ Appeals, and whether
               this court should overrule Disabled American
               Veterans v. Secretary of Veterans Affairs, 859
               F.3d 1072 (Fed. Cir. 2017).
            B. Whether the time for filing a direct action for
               judicial review under 38 U.S.C. § 502 is gov-
               erned by the 60-day deadline specified by
               Federal Circuit Rule 47.12(a) or only by the
               six-year statute of limitations in 28 U.S.C.
               § 2401(a).
    (3) NOVA’s opening brief must be filed within 45 days
        from the date of this order. The Secretary’s brief is
        due within 45 days after service of NOVA’s opening
        brief. NOVA’s reply brief must be filed within
        30 days after service of the Secretary’s brief.
    (4) The court invites the views of amici curiae. Any
        such brief may be filed without consent and leave
        of court. Any amicus brief supporting NOVA’s po-
        sition or supporting neither position must be filed
        within 20 days after service of NOVA’s opening
        brief. Any amicus brief supporting the Secretary’s
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 4                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



        position must be filed within 20 days after service
        of the Secretary’s brief.
     (5) The court requires 24 paper copies of all briefs and
         appendices provided by the filer within 5 business
         days from the date of electronic filing of the docu-
         ment. Administrative Order No. 20-01 does not ex-
         empt the filing of these paper copies.
     (6) This case will be heard en banc on the basis of the
         briefing ordered herein and oral argument.
     (7) Oral argument will be scheduled at a later date.


                                  FOR THE COURT

          May 6, 2020             /s/ Peter R. Marksteiner
            Date                  Peter R. Marksteiner
                                  Clerk of Court
