BIRDEYE L. MIDDLETON, Claimant-Appellant,
ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-4222, Judge Alan G. Lance Sr.
EINAR STOLE, Covington & Burling LLP, of Washington, DC, filed a petition for panel rehearing and rehearing en banc for claimant-appellant. With him on the petition was MICHAEL S. SAWYER. Of counsel on the petition were BARTON F. STICHMAN and KATY SCHUMAN CLEMENS, National Veterans Legal Services Program, of Washington, DC.
MICHAEL P. GOODMAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a response to the petition for respondent-appellee. On the response were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel on the response were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and MEGHAN ALPHONSO, Attorney, United States Department of Veterans Affairs, of Washington, DC.
DAVID J. LEWIS, Sidley Austin LLP, of Washington, DC, for amici curiae The American Legion and Vietnam Veterans of America. Of counsel on the brief was PHILIP B. ONDERDONK, The American Legion, of Indianapolis, Indiana, for amicus curiae The American Legion.
Before RADER, Chief Judge, NEWMAN, PLAGER, LOURIE, DYK, PROST, MOORE, REYNA, WALLACH, TARANTO, and CHEN, Circuit Judges. NEWMAN, Circuit Judge, with whom WALLACH, Circuit Judge, joins, dissenting from the denial of the petition for rehearing en banc. PLAGER, Circuit Judge, dissenting from the denial of the petition for panel rehearing.
ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC
A combined petition for panel rehearing and rehearing en banc was filed by claimant-appellant, and a response thereto was invited by the court and filed by respondent-appellee. The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and response were referred to the circuit judges who are authorized to request a poll of whether to rehear the appeal en banc. A poll was requested, taken, and failed.
Upon consideration thereof,
It Is Ordered That:
(1) The petition of claimant-appellant for panel rehearing is denied.
(2) The petition of claimant-appellant for rehearing ...