Friday, January 4, 2013

Checo v. Shinseki

         Checo v. Shinseki, docket no. 11-3683 (per curiam order) (Vet. App. Jan. 4, 2013)
Homelessness can be an extraordinary circumstance that would warrant equitable tolling of the 120-day deadline to file a Notice of Appeal with the CAVC. However, the appellant must also demonstrate that the untimely filing was a direct result of the homelessness and that due diligence was exercised in pursuing the appeal. The Court did not answer “the question of the time period during which diligence must be shown” – because the veteran “neither alleged nor demonstrated diligence during any period of time” even though the Secretary specifically raised the issue at oral argument. Similarly, the veteran’s attorney failed to explain how the veteran’s homelessness was a direct result of the late filing. Note to advocates: don’t forget to include some facts when arguing about the law.

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