United States Court of Appeals 

for the Federal Circuit ______________________ 

ALFRED PROCOPIO, JR.,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1821

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 15-4082, Judge Coral Wong 

Pietsch.

______________________ 

SUA SPONTE HEARING EN BANC

______________________ 

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, 

and STOLL, Circuit Judges.∗

PER CURIAM. 

 

∗ Circuit Judge Hughes did not participate.
2 PROCOPIO v. WILKIE

O R D E R

This case was argued before a panel of three judges on 

May 4, 2018. The panel sua sponte requested a poll on 

whether to consider this case en banc. A poll was conducted, and a majority of the judges who are in regular 

active service voted for en banc consideration. 

Accordingly,

 IT IS ORDERED THAT: 

(1) The court sua sponte orders that this case be heard 

en banc under 28 U.S.C. § 46 and Federal Rule of 

Appellate Procedure 35(a). The en banc court shall 

consist of all circuit judges in regular active service 

who are not recused or disqualified. 

(2) The parties are requested to file new briefs. The 

briefs should address the following issues: 

a. Does the phrase “served in the Republic of 

Vietnam” in 38 U.S.C. § 1116 unambiguously 

include service in offshore waters within the 

legally recognized territorial limits of the 

Republic of Vietnam, regardless of whether 

such service included presence on or within 

the landmass of the Republic of Vietnam?

i. What role, if any, does the proclaimant canon play in this analysis?

(3) The en banc briefs and briefs of any amici curiae 

shall be electronically filed in the ECF system, and 

thirty paper copies of each brief and any appendix 

shall be filed with the court. Two paper copies of 

all filings shall be served on opposing counsel. 

(4) Mr. Procopio’s en banc brief is due 45 days from the 

date of this order. Any amicus brief supporting Mr. 

Procopio’s position or supporting neither position is 

due within 10 days thereafter. The Secretary’s re-
PROCOPIO v. WILKIE 3

sponse brief is due within 30 days of service of Mr. 

Procopio’s en banc brief. Any amicus brief supporting the Secretary’s position is due within 10 days 

thereafter. Mr. Procopio’s reply brief is due within 

15 days of service of the Secretary’s response brief. 

Briefs shall adhere to the type-volume limitations 

set forth in Federal Rule of Appellate Procedure 32 

and Federal Circuit Rule 32.

(5) Briefing should be limited to the issues set forth 

above. 

(6) The court invites the views of amici curiae. Any 

such amicus briefs may be filed without consent 

and leave of court, but otherwise must comply with 

Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29. All amicus briefs shall be filed 

as stated above.

(7) This appeal will be heard en banc on the basis of 

the new briefing ordered herein and oral argument. 

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

 

 FOR THE COURT

August 16, 2018 /s/ Peter R. Marksteiner 

 Date Peter R. Marksteiner Clerk of Court