Checo v. Shinseki
2014 U.S. App. LEXIS 7590
| Fed. Cir. | 2014Background
- Ms. Checo sought an increased disability rating for lumbar spine stenosis, denied by the Board on July 6, 2011.
- She was homeless at the time and could not receive mail, learning of the decision on October 6, 2011.
- Checo filed a Notice of Appeal 38 days late; the Veterans Court deemed it untimely and denied equitable tolling.
- The Veterans Court accepted the Secretary’s concession that homelessness was extraordinary but rejected due diligence and causation.
- This court reviews legal conclusions de novo but not factual findings; it considers whether the court used proper standards for tolling.
- The majority vacates and remands to apply the correct due diligence standard and proper causation analysis under a stop-clock approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court may raise timeliness sua sponte | Checo argues Bove oversteps by sua sponte timeliness. | Shinseki argues the court may manage its docket and sua sponte address non-jurisdictional limits. | Yes, but under proper non-waivable rules; issues clarified on remand. |
| Whether the stop-clock approach applies to equitable tolling | Checo urges stop-clock to toll during homelessness period. | Secretary supports stop-clock as applicable to this case. | Adopt stop-clock approach; tolling ends Oct 6, 2011, timing NOA filing. |
| What diligence standard governs equitable tolling | Checo argues due diligence need only during tolling period. | McCreary standard requires diligence throughout entire period unless stop-clock applies. | Due diligence required during extraordinary period; remand to apply proper standard. |
| Causation standard for equitable tolling | Homelessness caused delay during tolling period; supports tolling. | Need for direct causation during tolling window; misapplied by Veterans Court. | Legal error to require delay proof beyond tolling window; causation shown for 91-day period. |
| Remedy after error in tolling analysis | Errors warrant reconsideration under correct standards. | Remand unnecessary after correct standards applied. | Reversed-in-part, vacated-in-part, and remanded for proper tolling analysis. |
Key Cases Cited
- Bove v. Shinseki, 25 Vet.App. 136 (2011) (authorized sua sponte timeliness review under Veterans Court rules)
- Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (non-jurisdictional rules and tolling relate to claims-processing rules)
- Wood v. Milyard, 132 S. Ct. 1826 (2012) (courts should address timeliness defenses only in exceptional cases)
- Day v. McDonough, 547 U.S. 198 (2006) (discretion to consider forfeited defenses for extraordinary circumstances)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling requires extraordinary circumstances, due diligence, causation)
- McCreary v. Nicholson, 19 Vet.App. 324 (2005) (three-element test for equitable tolling: extraordinary circumstance, due diligence, causation)
- Harper v. Ercole, 648 F.3d 132 (2d Cir. 2011) (stop-clock approach persuasive for tolling periods)