De Fernandez et al v. United States Department of Veterans Affairs et al

Filing 41

ORDER, Set/Reset Deadlines as to 35 Amended MOTION to Dismiss., Motions terminated: 35 Amended MOTION to Dismiss filed by Eric Shinseki, David West, Michael Walcoff, Bradley G. Mayes, United States Department of Veterans Affairs. Motion Hearing set for 9/18/2012 01:00 PM before Hon. Saundra Brown Armstrong.. Signed by Judge ARMSTRONG on 6/20/12. (lrc, COURT STAFF) (Filed on 6/20/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ROMEO R. DE FERNANDEZ,

Case No: C 10-2468 SBA

6 CIRIACO C. DELA CRUZ,

VALERIANO V. MARCELINO,
7 VETERANS EQUITY CENTER, a non-profit

organization on behalf of themselves and

ORDER SETTING REVISED
BRIEFING SCHEDULE ON
MOTION TO DISMISS

8 others similarly situated,

Plaintiff,

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vs.

11 UNITED STATES DEPARTMENT OF

VETERANS AFFAIRS;
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ERIK K. SHINESKI, Secretary of Department
13 of Veterans Affairs;
14 MICHAEL WALCOFF, Acting Under

Secretary, Veterans Benefits Administration,
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DAVID WEST, Veterans Service Center
16 Manager, Oakland Regional Office of

Veterans Benefits Administration;
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Defendants.
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At the direction of the Court, Defendants filed a revised motion to dismiss in light of

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the Ninth Circuit’s then controlling decision in Veterans for Common Sense v. Shineki, 644

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F.3d 845 (9th Cir. 2011) (“VCS I”). See Dkt. 35. Since the briefing on the motion closed,

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however, the Ninth Circuit issued an en banc decision vacating VCS I. Veterans for

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Common Sense v. Shinseki, -- F.3d --, 2012 WL 1574288 (9th Cir., May 7, 2012) (“VCS

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II”) (en banc). As a result, Plaintiffs propose that the Court permit the parties to submit

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revised opposition and reply briefs to incorporate the Ninth Circuit’s recent en banc

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decision. However, since Defendants’ motion is predicated VCS I, which has since been

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vacated, the Court concludes that the better course of action is for Defendants to resubmit

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its motion in light of VCS II. Accordingly,

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IT IS HEREBY ORDERED THAT:

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Within two weeks of the date this Order is filed, Defendants shall file a

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revised motion to dismiss as set forth above. Plaintiffs’ opposition shall be filed two weeks

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thereafter, and Defendants’ reply shall be filed one week after Plaintiffs’ file their

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opposition. The moving and opposition briefs shall be limited to seventeen (17) pages, and

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the reply shall be limited to ten (10) pages.

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2.

Defendants’ motion to dismiss is set for hearing on September 18, 2012 at

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1:00 p.m. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b),

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the Court, in its discretion, may resolve the motion without oral argument. The parties are

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advised to check the Court’s website to determine whether a court appearance is required.

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3.

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be terminated.

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In view of this Order, Defendants’ pending motion to dismiss (Dkt. 35) shall

IT IS SO ORDERED.
Dated: June 20, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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