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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