Checo v. Shinseki, 748 F.3d 1373 (Apr. 23, 2014)
EQUITABLE TOLLING, TIMELINESS
The CAVC can sua sponte raise the issue of whether a Notice of Appeal is timely. In order to establish entitlement to equitable tolling, a claimant must demonstrate extraordinary circumstances, due diligence, and causation. However, the claimant need only show due diligence and causation during the extraordinary circumstances period – and not during the entire appeal period.
The claimant’s appeal for an increased rating was denied by the Board on July 6, 2011. The claimant was homeless unable to receive mail until October 6, 2011, which is when she received a copy of the Board’s decision. She filed her Notice of Appeal (NOA) with the CAVC on December 7, 2011 – which was 33 days after the appeal deadline, based on the date of the Board decision. She explained her circumstances to the CAVC, and the Secretary conceded that her homelessness was beyond her control and qualified as extraordinary circumstances. Nevertheless, the Court found that she had not shown due diligence and causation, the other two elements necessary to warrant equitable tolling, and thus dismissed her appeal.
On appeal to the Federal Circuit, the claimant argued that the CAVC acted outside its authority when it directed the Clerk of the Court to identify late appeals and issue show-cause orders for why the appeal should not be dismissed. The claimant argued that the case on which the CAVC relied for such authority, Bove v. Shinseki, 26 Vet.App. 136, 140-43 (2011), should be overruled. The Federal Circuit disagreed, and held that the CAVC did not err by raising the timeliness issue on its own.
With respect to the equitable tolling determination, the Federal Circuit agreed with the parties that the claimant’s homelessness constituted extraordinary circumstances. The Federal Circuit also agreed that the “stop-clock” approach should apply, which would “stop” the clock measuring the 120-day appeal period during the extraordinary circumstances period. Under this approach, the appeal period would have been suspended between July 7 and October 6, 2011 – and the claimant would only need to show due diligence during that time period. The 120-day appeal period would begin to run on October 6, 2011 – and her NOA (filed on December 7, 2011) thus would have been timely. The Federal Circuit determined that it did not have sufficient information to determine what diligence standard the CAVC used to determine that the claimant had not shown due diligence – and remanded the case back to the CAVC to clarify and explain the appropriate standard that applied during the relevant due diligence period (July 7-October 6, 2011).
Similarly, the Federal Circuit found that the CAVC “used the wrong test for causation” by requiring that the claimant “prove why her homelessness caused her inability to file the NOA within the 120-day appeal period,” instead of during her period of homelessness. The Federal Circuit reversed the CAVC’s decision on this point, finding that the claimant’s homelessness caused a 91-day delay (July 7-October 6, 2011) in filing her NOA.