Checo v. McDonald

Checo v. McDonald, docket no. 11-3683 (Aug. 29, 2014) (per curiam order)

EQUITABLE TOLLLING, DUE DILIGENCE

Held: In order to establish entitlement to equitable tolling, a claimant must show extraordinary circumstances, causation, and due diligence. In cases where the period of “extraordinary circumstances” has a definite end date, due diligence must only be shown during the period of extraordinary circumstances – and not the entire appeal period.

This per curiam order arises from a Federal Circuit opinion that reversed and remanded a prior CAVC opinion. *2. The veteran in this case filed her Notice of Appeal to the CAVC late and asserted that her homelessness was an extraordinary circumstance that caused her late filing because she did not have a mailing address. The Federal Circuit determined that she only needed to show due diligence during the period of homelessness, thus adopting the “‘stop-clock approach,’ so called ‘because the clock measuring the 120-day appeal period is ‘stopped’ during the extraordinary circumstance period and starts ticking again only when the period is over.’” Id. (quoting Checo v. Shinseki, 748 F.3d 1373, 1379 (2013)). The Federal Circuit reversed the CAVC’s decision, and remanded for the Court to reconsider whether the veteran exercised due diligence during the period of extraordinary circumstances.

The CAVC determined that “due diligence” required “reasonable diligence” and not “maximum feasible diligence.” Id. The Court found that the veteran had contacted VA to inquire as to her appeal during the period of extraordinary circumstances – and that this was a “sufficient demonstration of diligence” during that period. The Court thus accepted her Notice of Appeal as timely.