Cherise Checo v. Robert A. McDonald, Opinion Number 11-3683,
decided August 29, 2014 concerns an untimely appeal by a homeless veteran.
The veteran filed her notice of appeal on December 7, 2011
from a July 6, 2011 Board decision. This
was outside the 120 days allowed to file the notice of appeal. The Court of Appeals for Veterans Claims
found the veteran had not demonstrated that equitable tolling was warranted and
dismissed the appeal. Specifically, the
Court found she had not demonstrated her homeless was the direct cause of her
late filing and did not demonstrate or allege she exercised due diligence in
filing her notice of appeal.
On appeal, the Court of Appeals for the Federal Circuit
found the veteran’s homelessness qualifies as an extraordinary circumstance and
found the veteran had demonstrated her homeless caused the late filing because
she did not receive mail while she was homeless and did not find out about the
decision until October 6, 2011. The
Federal Circuit also sought to flesh out the question of due diligence. It adopted a stop-clock approach, which
states the clock measuring the 120-day period to appeal is stopped during the
extraordinary circumstance and restarts when the period is over.
In this case, that meant the veteran had to exercise due
diligence between July 6, 2011 (the date of the Board decision) and October 6,
2011 (the date the decision was sent to her new address). This question of due diligence was remanded
for the Court’s consideration and they determined that there was “some
indication that Ms. Checo contacted VA to inquire as to her appeal in September
2011 and that her inquiry prompted VA to mail a copy of the Board’s decision to
the address she provided.” The Court
found this was a sufficient demonstration of due diligence.
Decided by Judges Hagel, Lance and Schoelen.
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