Case: 20-1073    Document: 45     Page: 1   Filed: 08/05/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                ADOLFO R. ARELLANO,
                  Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2020-1073
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-3908.
                 ______________________

          SUA SPONTE HEARING EN BANC
               ______________________

     JAMES R. BARNEY, Finnegan, Henderson, Farabow,
 Garrett & Dunner, LLP, Washington, DC, for claimant-ap-
 pellant. Also represented by ALEXANDER EDISON HARDING,
 KELLY HORN.

     ANDREW JAMES HUNTER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT
 EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG, Y. KEN
 LEE, Office of General Counsel, United States Department
 of Veterans Affairs, Washington, DC.
Case: 20-1073        Document: 45   Page: 2    Filed: 08/05/2020




 2                                         ARELLANO   v. WILKIE



                     ______________________

      Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
     MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
             HUGHES, and STOLL, Circuit Judges.
 PER CURIAM.
                           ORDER
     This case was argued before a panel of three judges on
 July 6, 2020. A sua sponte request for a poll on whether to
 consider this case en banc in the first instance was made.
 A poll was conducted and a majority of the judges who are
 in regular active service voted for sua sponte en banc con-
 sideration.
      Accordingly,
      IT IS ORDERED THAT:
      (1) This case will be heard en banc under 28 U.S.C.
          § 46 and Federal Rule of Appellate Procedure 35(a).
          The court en banc shall consist of all circuit judges
          in regular active service who are not recused or dis-
          qualified.
      (2) The parties are requested to file new briefs ad-
          dressing the following four issues:
            A. Does the rebuttable presumption of the avail-
               ability of equitable tolling articulated in Ir-
               win v. Department of Veterans Affairs, 

(1990), apply to 38 U.S.C.
               § 5110(b)(1), and if so, is it necessary for the
               court to overrule Andrews v. Principi, 

(Fed. Cir. 2003)?

            B. Assuming Irwin’s rebuttable presumption
               applies to § 5110(b)(1), has that presumption
               been rebutted?
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 ARELLANO   v. WILKIE                                      3



            C. Assuming this court holds that Irwin’s rebut-
               table presumption applies to § 5110(b)(1),
               would such a holding extend to any addi-
               tional provisions of § 5110, including but not
               limited to § 5110(a)(1)?

            D. To what extent have courts ruled on the
               availability of equitable tolling under stat-
               utes in other benefits programs that include
               timing provisions similar to § 5110?
    (3) The opening brief of Appellant Adolfo R. Arellano
        must be filed within 45 days from the date of this
        order. The brief of Appellee Secretary of Veterans
        Affairs is due within 45 days after service of Mr.
        Arellano’s opening brief. Mr. Arellano’s reply brief
        must be filed within 30 days after service of the
        Secretary’s brief. The parties’ briefs must comply
        with Fed. Cir. R. 32(b)(1).
    (4) The court invites the views of amici curiae. Any
        amicus brief may be filed without consent and
        leave of court. Any amicus brief supporting Mr.
        Arellano’s position or supporting neither position
        must be filed within 20 days after service of Mr.
        Arellano’s opening brief. Any amicus brief support-
        ing the Secretary’s position must be filed within 20
        days after service of the Secretary’s brief. Amicus
        briefs must comply with Fed. Cir. R. 29(b).
    (5) The court requires 26 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.
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 4                                      ARELLANO   v. WILKIE



     (7) Oral argument will be scheduled at a later date.


                                 FOR THE COURT

         August 5, 2020          /s/ Peter R. Marksteiner
             Date                Peter R. Marksteiner
                                 Clerk of Court