Appeal from the United States Court of Appeals for Veterans Claims in No. 11-3683.
MARK R. LIPPMAN, The Veterans Law Group, of La Jolla, California, argued for claimant-appellant.
TARA K. HOGAN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and MARTIE ADELMAN, Attorney, United States Department of Veterans Affairs, of Washington, DC.
JAMES R. BARNEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, for amicus curiae. Of counsel on the brief was TERENCE STEWART, Stewart & Stewart of Washington, DC. Of counsel was KEVIN D. RODKEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Atlanta, Georgia.
Before PROST, MAYER, and CHEN, Circuit Judges. Opinion for the court filed by Circuit Judge PROST. Opinion dissenting-in-part filed by Circuit Judge MAYER.
Prost, Circuit Judge .
This is an appeal from the United States Court of Appeals for Veterans Claims (" Veterans Court" ). Cerise Checo initially sought an increased disability rating for a back injury, which the Board of Veterans' Appeals denied on July 6, 2011. However, Ms. Checo was homeless and unable to obtain mail until October 6, 2011, when she finally received a copy of the adverse decision. She eventually filed her Notice of Appeal (" NOA" ) 33 days late. The Veterans Court concluded that Ms. Checo's NOA was untimely and that she failed to show why her homelessness warranted equitable tolling. See Checo v. Shinseki, 26
Vet.App. 130, 135 (2013).
We conclude that the Veterans Court (1) used an inappropriate due diligence standard; and (2) erred in determining that Ms. Checo's homelessness did not cause a 91-day delay in her filing. Therefore, we vacate the Veterans Court's dismissal of Ms. Checo's appeal and remand this case for further proceedings.
I. Background and Procedural History
Ms. Checo initially filed a claim seeking an increased disability rating for lumbosacral spinal stenosis, including disk bulges at the L3-L4 and L5-S1 vertebrae, which is currently rated at a 20% disability. On July 6, 2011, the Board of Veterans' Appeals issued a decision denying her request. Ms. Checo was homeless at that time, residing in shelters and temporary housing without the ability to receive mail. On September 27, 2011, Ms. Checo contacted the Department of Veterans Affairs (" VA" ) to provide a new address, and she received a copy of the adverse decision on October 6, 2011--after 91 days of the 120-day filing period under 38 U.S.C. § 7266 had passed. On December 7, 2011, Ms. Checo filed an NOA of the decision, 33 days after the expiration of the 120-day period. In the NOA, she wrote: " Due to economic hardship, I've been homeless for extensive periods of time since July 2009, residing in shelters and temporary housing. During this time, I was unable to
receive mail and did not learn about the hearing and subsequent decision until" a copy of the decision was mailed to her in October 2011. J.A. 9.
Under Bove v. Shinseki, the Clerk of the Veterans Court may identify late appeals and issue show cause orders for why these appeals should not be dismissed. See 25
Vet.App. 136, 140-43 (2011). Pursuant to this policy and before any substantive briefing occurred, the Clerk of the Veterans Court ordered the Secretary to file a response discussing whether the circumstances in Ms. Checo's case warranted the equitable tolling of the 120-day judicial appeal period.
In its response, the Secretary noted that " it appears that [Ms. Checo's] homelessness was due to circumstances beyond her control." J.A. 20. The Secretary also stated that Ms. Checo's homelessness " would have delayed her filing of her NOA." Id. at 20-21.
After the Veterans Court accepted the Secretary's concession that Ms. Checo's homelessness qualified as an extraordinary circumstance, it ruled that Ms. Checo nonetheless failed to prove the two other necessary elements--due diligence and direct causation--to warrant equitable tolling. See Checo, 26
Vet.App. at 134-36. The Veterans Court then dismissed Ms. Checo's appeal. Id. at 136.
Ms. Checo challenges two aspects of the Veterans Court's order. First, she questions whether the Veterans Court acted within its authority when it raised the timeliness issue sua sponte under Bove . Second, Ms. Checo disputes the Veterans Court's conclusion that she is not entitled to equitable tolling. We address each of Ms. Checo's challenges in turn.
A. The Bove Decision
As noted above, in Bove v. Shinseki the Veterans Court directed the Clerk of the Court to identify late appeals and issue show-cause orders for why these appeals should not be dismissed. 25
Vet.App. at 140-43. Ms. Checo and Amicus both argue that Bove, which was never appealed to this court, should now be overruled. We have jurisdiction to review Veterans Court decisions concerning any challenge to an interpretation of a statute, regulation, or rule under 38 U.S.C. § 7292(a). Cummings v. West, 136 F.3d 1468, 1471 (Fed. Cir. 1998); Cox v. West, 149 F.3d 1360, 1362 (Fed. Cir. 1998) (" These questions of legal interpretation are clearly within our jurisdiction." ). " Such legal determinations of the Veterans Court are reviewed without deference." Bingham v. Nicholson, 421 F.3d 1346, 1348 (Fed. Cir. 2005) (citation omitted).
To begin her argument, Ms. Checo notes the distinction between non-jurisdictional time limitations, which are waivable, and jurisdictional limitations, which are not. See, e.g., Eberhart v. United States, 546 U.S. 12, 20-21, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (" [C]laim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them" ). She argues that here the Veterans Court's practice of raising timeliness issues on its own eliminates the opportunity for the Secretary to waive
the right to challenge the non-jurisdictional appeal ...