Checo v. Shinseki ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
CERISE CHECO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7059
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3683.
______________________
Decided: April 23, 2014
______________________
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 Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-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 Veter-
ans Affairs, of Washington, DC.
2 CHECO v. SHINSEKI
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, Gar-
rett & 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 Ap-
peals 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 even-
tually 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 homeless-
ness warranted equitable tolling. See Checo v. Shinseki,
26 Vet. App. 130, 135 (2013).
We conclude that the Veterans Court (1) used an in-
appropriate 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
CHECO v. SHINSEKI 3
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 contact-
ed 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 deci-
sion, 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 re-
sponse discussing whether the circumstances in Ms.
Checo’s case warranted the equitable tolling of the 120-
day judicial appeal period. 1
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
1 “As a general matter, equitable tolling pauses the
running of, or ‘tolls,’ a statute of limitations when a
litigant has pursued his rights diligently but some ex-
traordinary circumstance prevents him from bringing a
timely action.” Lozano v. Montoya Alvarez, No. 12-820,
2014 WL 838515, at *6 (U.S. Mar. 5, 2014).
4 CHECO v. SHINSEKI
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 ele-
ments—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.
II. DISCUSSION
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 time-
liness 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 ap-
peals should not be dismissed. 25 Vet. App. at 140-43.
Ms. Checo and Amicus 2 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.”).
2 The Federal Circuit Bar Association filed an ami-
cus curiae brief in support of Ms. Checo.
CHECO v. SHINSEKI 5
“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 distinc-
tion 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 (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
period limitation.
Ms. Checo also argues that if Congress had wanted
§ 7266(a) to be non-waivable, it would have done so.
Instead, according to Ms. Checo, this Veterans Court
procedure creates the appearance of bias against disabled
veterans. Cf. Barrett v. Nicholson, 466 F.3d 1038, 1044
(Fed. Cir. 2006) (“[I]t was for the purpose of ensuring that
veterans were treated fairly by the government and to see
that all veterans entitled to benefits received them that
Congress provided for judicial review . . . .”).
Next, Ms. Checo points out that judicial review of
Veterans Board decisions is an adversarial process, so she
contends that only the parties should present the issues.
See Bobbitt v. Principi, 17 Vet. App. 547, 552 (2004)
(“[F]iling an appeal to this Court is not an action within
the ‘non-adversarial, manifestly pro-claimant veterans’
benefits system. Rather, [it] . . . is the first step in an
adversarial process challenging the Secretary’s decision
on benefits.”) (citation omitted).
Finally, Ms. Checo requests that we compare the Vet-
erans Court to the Social Security disability program, as
it has been called an analogous system. Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1204 (2011). And
6 CHECO v. SHINSEKI
the Supreme Court has stated that the time period for
filing an appeal for judicial review of a Social Security
decision is waivable. See Bowen v. New York, 476 U.S.
467, 474 n.10 (1986).
We have considered all of Ms. Checo’s arguments, but
we do not find them persuasive. While Ms. Checo relies
on several cases that distinguish non-jurisdictional and
jurisdictional limitations, she fails to point to a single case
that affirmatively states that the Veterans Court cannot
raise sua sponte a non-jurisdictional limitation. Further,
as the Government notes, the Supreme Court has permit-
ted district courts to raise non-jurisdictional statute of
limitations issues sua sponte. See, e.g., Day v.
McDonough, 547 U.S. 202, 209 (2006) (“In sum, we hold
that district courts are permitted, but not obliged, to
consider, sua sponte, the timeliness of a state prisoner’s
habeas petition.”). 3
Regarding Ms. Checo’s arguments that Congress
could have, and did not, make § 7266(a) unwaivable, we
conclude that Congress nonetheless gave the Veterans
Court broad discretion to prescribe, interpret, and apply
3 Ms. Checo attempts to discount the relevance of
Day, arguing that in Wood v. Milyard, the Supreme Court
referred to such habeas petition cases as “modest excep-
tion[s]” to the general forfeiture rule that “implicate[]
values beyond the concerns of the parties.” 132 S. Ct.
1826, 1832 (2012) (citation omitted). Additionally, Ami-
cus claims that this decision advises appellate courts to
use restraint in applying sua sponte review. However,
Wood does not apply to this case; in Wood an appeals
court dismissed a petition as untimely after the state
waived the issue below. Id. at 1834. In contrast, here the
Veterans Court notified the Secretary of the issue before
it was required to file a pleading in the case, so a waiver
never occurred.
CHECO v. SHINSEKI 7
its own rules. The Veterans Court uses that discretion
here to require that a claimant file an NOA within the
time allowed by law. See U.S. Vet. App. R. 38(b) (author-
izing the Veterans Court to take “such action as the court
deems appropriate, including dismissal of the appeal,”
when a party fails to comply with a rule of the Veterans
Court).
Further, the fact that proceedings in the Veterans
Court are adversarial does not prevent the Veterans
Court from managing its cases, which it does by requiring
its Clerk to identify late NOAs and issue show-cause
orders before any substantive pleadings are filed. And we
note that even when an NOA is untimely, the Veterans
Court still considers whether equitable tolling applies, so
this procedure does not create any unfair bias.
Finally, despite the similarities between Veterans
Appeals and Social Security cases, we note that parties in
Social Security cases are still subject to Federal Rule of
Civil Procedure 8(c). This rule requires a party to state
any affirmative defense in response to a pleading, so it
makes sense in those cases to allow waiver of non-
jurisdictional time limitations. But the Federal Rules of
Civil Procedure do not apply to the appellate Veterans
Court.
For the foregoing reasons, we see no reason at this
time to overrule the holding in Bove that grants the
Veterans Court authority to address untimely filings sua
sponte. 4 We conclude that in this case the Veterans Court
4 We need not consider the Veterans Court’s sepa-
rate holding in Bove that the 120-day appeal period is not
a matter subject to waiver or forfeiture by the Secretary;
in this case such waiver or forfeiture never occurred. See
n.3, infra.
8 CHECO v. SHINSEKI
did not err by raising sua sponte the untimely appeal
issue.
B. Equitable Tolling
We next turn to whether the Veterans Court erred in
ruling that Ms. Checo is not entitled to equitable tolling.
As we stated previously, this court has jurisdiction to
review the legal determinations of the Veterans Court
under 38 U.S.C. § 7292. However, we may not review the
Veterans Court’s factual findings or its application of law
to facts. Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed.
Cir. 2011) (citing Reizenstein v. Shinseki, 583 F.3d 1331,
1334 (Fed. Cir. 2009)).
In order to benefit from equitable tolling, the Veter-
ans Court has previously required a claimant to demon-
strate three elements: (1) extraordinary circumstance; (2)
due diligence; and (3) causation. See McCreary v. Nichol-
son, 19 Vet. App. 324, 332 (2005), adhered to on reconsid-
eration, 20 Vet. App. 86 (2006). This is consistent with
other jurisdictions and also with the guidance provided by
the Supreme Court, and neither party challenges this test
here. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
96 (1990) (“We have allowed equitable tolling in situations
where the claimant has actively pursued his judicial
remedies . . . . But the principles of equitable tolling . . .
do not extend to what is at best a garden variety claim of
excusable neglect.”).
1. Extraordinary Circumstance
During oral argument at the Veterans Court, the Sec-
retary acknowledged that it has conceded that Ms.
Checo’s homelessness qualifies as an extraordinary cir-
cumstance in this case. See J.A. 75. The Veterans Court
CHECO v. SHINSEKI 9
accepted this concession, and we agree. 5 We therefore
conclude that Ms. Checo has satisfied the extraordinary
circumstance element.
2. Due Diligence
In addition to an extraordinary circumstance, a party
who seeks equitable tolling must also show due diligence.
See Irwin, 498 U.S. at 96; Harper v. Ercole, 648 F.3d 132,
136 (2d Cir. 2011); McCreary, 19 Vet. App. at 327. We
5 Throughout its briefing and during oral argument,
the Secretary repeatedly told the Veterans Court that it
was conceding the extraordinary circumstance element.
Early in the argument, the Veterans Court indicated it
was aware of this fact. See J.A. 61 (“I believe the Secre-
tary conceded that there was extraordinary circumstance
. . . .”). Nonetheless, the Veterans Court spent the majori-
ty of the time during oral argument questioning both
parties over whether that concession was appropriate and
whether the Veterans Court needed to accept the Secre-
tary’s concession. See, e.g., J.A. 63-65, 71, 75-77, 81-85.
The reason for the Veterans Court’s reluctance to accept
this concession is not apparent to us. See, e.g., United
States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir.
2010) (“Nothing is more common than for parties by
stipulation formal or informal to agree to facts that, were
it not for the stipulation, would have to be proved by
evidence, in this case a judicial record.”); Ferguson v.
Neighborhood Housing Servs., 780 F.2d 549, 551 (6th Cir.
1986) (“[U]nder federal law, stipulations and admissions
in the pleadings are generally binding on the parties and
the Court.”) (citation omitted); State Farm Mut. Auto. Ins.
Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968)
(“The purpose of a judicial admission is that it acts as a
substitute for evidence in that it does away with the need
for evidence in regard to the subject matter of the judicial
admission.”) (citation omitted).
10 CHECO v. SHINSEKI
begin our inquiry by considering for which period Ms.
Checo needed to show such due diligence—during the
entire 120-day appeal, during the period of extraordinary
circumstances (i.e., ending on October 6, 2011 when she
received a copy of the decision 6), during the period be-
tween the end of the extraordinary circumstances and the
date of filing the NOA (i.e., between October 6, 2011 and
December 7, 2011), or during some other period. 7
Although this is an issue of first impression in this
court, we find the Second Circuit’s analysis in Harper v.
Ercole persuasive. See 648 F.3d at 139. There, the Sec-
ond Circuit concluded that due diligence must only be
shown during the requested tolling period, which can
occur at any time during the statutory period. Id. The
Second Circuit explained that “[a] court may suspend the
statute of limitations for the period of extraordinary
circumstances and determine timeliness by reference to
6 At oral argument before the Veterans Court, the
Secretary suggested that September 27, 2011—the date
when Ms. Checo contacted the VA and requested a mail-
ing of the adverse decision—should mark the end of the
extraordinary circumstance period. J.A. 78-79. However,
on appeal the government has not contested Ms. Checo’s
assertion that October 6, 2011 marks the end of the
period. We note that whether September 27, 2011 or
October 6, 2011 is the end date of the extraordinary
circumstance period is not relevant to this case. There-
fore, we will adopt Ms. Checo’s October 6, 2011 date as
the end of the extraordinary circumstance period.
7 Although the Veterans Court declined to address
this issue, see Checo, 26 Vet. App. at 134-35, we have
jurisdiction to decide the question. Linville v. West, 165
F.3d 1382, 1384 (Fed. Cir. 1990) (stating that arguments
which were ignored or rejected sub silentio by Veterans
Court can still be reviewed on appeal).
CHECO v. SHINSEKI 11
the total untolled period without requiring a further
showing of diligence through filing.” Id. The parties refer
to this in their briefing as the “stop-clock” approach
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. As
applied to this case, the stop-clock approach would mean
that the appeal period was suspended between July 7,
2011 and October 6, 2011, and we would only need to
consider whether Ms. Checo has shown diligence during
that time.
The Veterans Court, however, has previously required
a showing of due diligence throughout the entire appeal
period. See McCreary, 19 Vet. App. at 333. In that case,
the extraordinary circumstance came in the form of a
hurricane; due to the storm, the claimant misplaced his
appeal papers. Id. The Veterans Court found that the
claimant could have found and filed his papers at some
unspecified time before the expiration of the limitations
period despite the hurricane. See id. at 333-34. As ap-
plied to this case, the McCreary standard would require
us to examine whether Ms. Checo showed due diligence
from July 7, 2011 (the beginning of the 120-day appeal
period) until December 7, 2011 (the date that she filed her
NOA).
Ms. Checo argues that the stop-clock approach should
apply in this case, making the relevant due diligence
period the 91 days that she was homeless between July 7,
2011 and October 6, 2011, with the entire 120-day appeal
period starting to run upon her receipt of the adverse
decision. She claims that the stop-clock approach applies
when the extraordinary circumstance period has a defi-
nite end date for equitable tolling. Here, that definite end
date is October 6, 2011, marking the end of her homeless-
ness. She argues that the McCreary standard is a fall-
back approach, one that is to be used only when the
extraordinary circumstance period has no end date, such
12 CHECO v. SHINSEKI
as the recovery period after a hurricane. During oral
argument before the Veterans Court, the Secretary agreed
that the stop-clock approach would be appropriate in Ms.
Checo’s case. See J.A. 79 (“[T]he Secretary does not
contest that the court should use the stop-clock ap-
proach.”); see also Oral Arg. Tr. 28:20-28 (“Before the
Veterans Court the Secretary conceded that it did not
have a problem with the stop-clock approach.”).
We agree with both parties and adopt the stop-clock
approach. As a result, we conclude that Ms. Checo must
only demonstrate due diligence during the extraordinary
circumstance period, which began on July 7, 2011 and
ended on October 6, 2011. And if she is successful in
demonstrating both due diligence and causation during
this time period, 8 under the stop-clock approach the
appeal clock would begin to run on October 6, 2011,
making her NOA (filed on December 7, 2011) timely. 9
Below, Ms. Checo explained to the Veterans Court in
her NOA that while she was homeless she “was unable to
receive mail and did not learn about the hearing and
subsequent decision until” October 6, 2011. J.A. 9. The
Veterans Court nonetheless concluded not only that Ms.
Checo had failed to prove due diligence but also that she
“failed to even assert that she acted diligently.” Checo, 26
Vet. App. at 135 (emphasis added). The Government
argues that this factual finding is not subject to review by
our court and that we must therefore uphold the Veterans
Court’s determination that the statute should not be
equitably tolled.
Although we may not review the Veterans Court’s fac-
tual findings, we may review whether the Veterans Court
8 See Section II.B.3, infra.
9 Indeed, Ms. Checo would have had 120 days after
October 6, 2011 to file her NOA.
CHECO v. SHINSEKI 13
erred as a matter of law in using an improper standard of
due diligence for Ms. Checo. See 38 U.S.C. § 7292(a). The
Supreme Court has stated that “[t]he diligence required
for equitable tolling purposes is ‘reasonable diligence,’ not
‘maximum feasible diligence.’” Holland v. Florida, 560
U.S. 631, 653 (2010) (citations and internal quotation
marks omitted).
However, we lack sufficient information to even de-
termine what diligence standard the Veterans Court used
in concluding that Ms. Checo had not met her burden. We
note that during oral argument before the Veterans
Court, the Secretary suggested that Ms. Checo should
have “sought general delivery of [her] mail knowing that
there was an outstanding Board decision or an appeal
pending before the Board.” J.A. 77. But such action was
impossible for Ms. Checo, as she stated that she was
“unable to receive mail,” so she had no new address to
provide until September 27, 2011, when she contacted the
VA. J.A. 2, 9. The Secretary did not challenge the veraci-
ty of that assertion.
The Veterans Court stated that Ms. Checo should
have “cited . . . actions that she took during [the period of
time sought to be tolled] . . . that would tend to prove such
diligence in pursuing her appeal.” Checo, 26 Vet. App. at
135. But it remains unclear what further actions she
needed to specifically cite to support her claim that she
acted diligently. Indeed, during oral argument in our
court, the Government’s counsel expressed “hesitat[ion] to
put out factors as to what she could have done or should
have done.” Oral Arg. Tr. 16:40-48; see also id. at 31:14-
25 (“Q: Would the government feel that it was necessary
to [challenge] a statement that said “I tried my best”? A: I
think that is a very difficult question.”). Since we do not
know what would have been necessary to prove due
diligence to the Veterans Court, we are unable to evaluate
whether it used too high of a due diligence standard.
14 CHECO v. SHINSEKI
We therefore remand Ms. Checo’s case back to the
Veterans Court so that it may clarify and apply an appro-
priate due diligence standard to the facts of Ms. Checo’s
case as well as engage in further fact finding as neces-
sary.
3. Causation
Below, the Veterans Court “emphasize[d] that Ms.
Checo failed to provide any facts to support a finding of
direct causation between her homelessness and her
failure to file her [NOA] within the 120-day judicial
appeal period.” Checo, 26 Vet. App. at 134. Thus, the
Veterans Court concluded that Ms. Checo had not carried
her burden. Id.
We conclude that this was a legal error, as the Veter-
ans Court used the wrong test for causation. The Veter-
ans Court required Ms. Checo to prove why her
homelessness caused her inability to file the NOA within
the 120-day appeal period, but as discussed above in
Section II.B.2, under the stop-clock approach Ms. Checo
only needed to demonstrate causation between her home-
lessness and the period she sought to be tolled (i.e., the
91-day period). See generally Harper, 648 F.3d at 137-38.
In her NOA, Ms. Checo explained that while she was
homeless, she 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 on October 6, 2011,
marking the end of the 91-day period she now seeks to
toll. J.A. 9. Thus, although Ms. Checo failed to explain
why her homelessness caused a delay between October 6,
2011 and the end of the appeal period, she did indeed
explain why her homelessness caused a delay during the
91-day period.
Further, in its response to the Veterans Court’s initial
request that the Secretary discuss whether the circum-
stances in Ms. Checo’s case warranted equitable tolling,
CHECO v. SHINSEKI 15
the Secretary stated that Ms. Checo’s homelessness
“would have delayed her filing of her NOA.” J.A. 20-21.
Ms. Checo argues that this statement is a concession that
her homelessness caused a 91-day delay. The Govern-
ment disagrees with Ms. Checo’s interpretation. Howev-
er, we need not decide whether or not this statement was
a concession; even if it was not, the statement still pro-
vides further support for our conclusion that Ms. Checo
has demonstrated that her homelessness caused a 91-day
delay in filing.
III. CONCLUSION
For the foregoing reasons, we hold that the Veterans
Court did not err in following its own procedure, outlined
in Bove, and raising sua sponte the timeliness issue.
However, we conclude that the Veterans Court did err in
determining that Ms. Checo had not shown due diligence
or causation to support her equitable tolling claim. We
reverse the Veterans Court’s determination that she
failed to show causation and vacate the Veterans Court’s
determination that she failed to show due diligence. We
remand this case back to the Veterans Court for further
consideration consistent with this opinion.
REVERSED-IN-PART, VACATED-IN-PART, AND
REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
CERISE CHECO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7059
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3683.
______________________
MAYER, Circuit Judge, dissenting-in-part.
I agree that the United States Court of Appeals for
Veterans Claims (“Veterans Court”) erred in failing to
apply the “stop-clock” approach to equitable tolling and in
dismissing Cherise Checo’s appeal as untimely. I disa-
gree, however, with the conclusion that the Veterans
Court has the authority to routinely raise, on its own
initiative, the statute of limitations defense on behalf of
the Secretary of Veterans Affairs (“Secretary”). “In our
adversary system, in both civil and criminal cases, in the
first instance and on appeal, we follow the principle of
party presentation. That is, we rely on the parties to
frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present.” Green-
law v. United States, 554 U.S. 237, 243 (2008). The
2 CHECO v. SHINSEKI
Veterans Court’s regular practice of addressing, sua
sponte, the question of whether a veteran’s appeal is
timely filed is contrary to the Supreme Court’s admoni-
tion that a court should independently consider a statute
of limitations defense only “in exceptional cases.” Wood v.
Milyard, 132 S. Ct. 1826, 1834 (2012). Regularly raising
an affirmative defense on behalf of the Secretary creates
the appearance that the court functions not as a “neutral
arbiter,” Greenlaw, 554 U.S. at 243, but instead as a mere
appendage of the Department of Veterans Affairs (“VA”),
as even the Veterans Court once recognized. See
MacWhorter v. Derwinski, 2 Vet. App. 133, 135 (1992)
(“[F]erreting out . . . implicit or possible contentions” on
behalf of the Secretary “would be the antithesis of the
adversarial judicial appellate process.”); see also Hodge v.
West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (“[I]n the
context of veterans’ benefits where the system of award-
ing compensation is so uniquely pro-claimant, the im-
portance of systemic fairness and the appearance of
fairness carries great weight.”).
Of course, some filing deadlines are jurisdictional.
See John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 133-39 (2008) (“Sand & Gravel”) (concluding that
compliance with the time limit for filing suit in the United
States Court of Federal Claims is a jurisdictional re-
quirement); Bowles v. Russell, 551 U.S. 205, 209 (2007)
(concluding that the time limit for appealing from a
district court to a court of appeals is “mandatory and
jurisdictional” (citations and internal quotation marks
omitted)). Because “federal courts have an independent
obligation to ensure that they do not exceed the scope of
their jurisdiction,” they are required to assure compliance
with jurisdictional filing deadlines, even in situations in
which the timeliness question has not been raised by the
parties. Henderson ex rel. Henderson v. Shinseki, 131 S.
Ct. 1197, 1202 (2011); see Arbaugh v. Y & H Corp., 546
U.S. 500, 506 (2006) (“The objection that a federal court
CHECO v. SHINSEKI 3
lacks subject-matter jurisdiction may be raised by a party,
or by a court on its own initiative, at any stage in the
litigation, even after trial and the entry of judgment.”
(citation omitted)).
But other filing deadlines are “claims-processing
rules” which do not limit a court’s jurisdiction. Dolan v.
United States, 560 U.S. 605, 610 (2010). Because such
claims-processing rules only afford relief to the party
properly raising them, they can be waived or forfeited.
See id. (“Unless a party points out to the court that an-
other litigant has missed [a non-jurisdictional] deadline,
the party forfeits the deadline’s protection.”); Sand &
Gravel, 552 U.S. at 133 (“[T]he law typically treats a
limitations defense as an affirmative defense . . . subject
to rules of forfeiture and waiver.”). Furthermore, while
an appellate court has discretion to address a non-
jurisdictional limitations defense on its own initiative, it
“should reserve that authority for use in exceptional
cases,” Wood, 132 S. Ct. at 1834, which surely would not
include the situation here or, for example, when a veteran
has an incapacitating injury or illness.
The 120-day time limit for appealing to the Veterans
Court set out in 38 U.S.C. § 7266(a) is not a jurisdictional
prerequisite, but is instead a “quintessential claim-
processing rule[].” Henderson, 131 S. Ct. at 1203. Accord-
ingly, the Veterans Court erred when it: (1) concluded
that the statute of limitations defense could not be waived
by the Secretary; and (2) directed its clerk of court to
screen all appeals for timeliness and to issue show cause
orders requiring veterans to demonstrate why any appeal
filed outside the 120-day filing period should not be
dismissed. See Bove v. Shinseki, 25 Vet. App. 136, 140-43
(2011). “[A] federal court does not have carte blanche to
depart from the principle of party presentation basic to
our adversary system.” Wood, 132 S. Ct. at 1833. In-
stead, the Supreme Court has repeatedly cautioned that a
court can sua sponte address an affirmative defense only
4 CHECO v. SHINSEKI
in a narrow set of circumstances. See id. at 1834 (con-
cluding that an appellate court abused its discretion by
raising a timeliness defense on its own initiative); Green-
law, 554 U.S. at 244 (Because our justice “system is
designed around the premise that the parties know what
is best for them, and are responsible for advancing the
facts and arguments entitling them to relief,” courts
“normally decide only questions presented by the parties.”
(citations and internal quotation marks omitted)); Arizona
v. California, 530 U.S. 392, 413 (2000) (Because it
“erod[es] the principle of party presentation so basic to
our system of adjudication,” courts must be “cautious”
about raising an affirmative defense sua sponte.). Day v.
McDonough, 547 U.S. 198, 206-10 (2006), relied upon by
the Veterans Court, is not to the contrary. As the Su-
preme Court explained in Wood, Day stands for the lim-
ited proposition that a court has discretion “to consider a
forfeited habeas defense when extraordinary circumstanc-
es so warrant.” 132 S. Ct. at 1833 (emphasis added).
No extraordinary circumstances justify the Veterans
Court’s regular practice of raising the question of whether
a veteran’s appeal was timely filed. In Bove, the Veterans
Court concluded that sua sponte consideration of the
timeliness issue in every appeal submitted outside the
120-day filing period is required because “hold[ing] that
the Secretary could affirmatively or by forfeiture waive
the 120-day filing period would cede some control of the
Court’s docket to the Secretary and permit arbitrary
selection of which veteran’s late filing he finds worthy of
waiver, a process devoid of consistency, procedural regu-
larity, and effective judicial review.” Bove, 25 Vet. App. at
141. * The Veterans Court, however, provided no factual
* The Veterans Court also stated that the goal of
promoting “judicial efficiency” justified requiring its clerk
of court to screen all appeals for timeliness. Bove, 25 Vet.
CHECO v. SHINSEKI 5
support for its rather far-fetched contention that the
Secretary might attempt to gain “control” over its docket.
Nor could the court cite to a single instance in which the
Secretary made an “arbitrary” decision to forego reliance
on a timeliness defense in order to defend an appeal on
the merits. To the contrary, the Secretary typically has
every incentive to promptly raise a statute of limitations
defense given that it can frequently provide an expedi-
tious means of resolving an appeal. See Eberhart v.
United States, 546 U.S. 12, 18 (2005) (noting that “the
Government is unlikely to miss timeliness defects very
often”). In the rare instances in which the Secretary
elects not to pursue a statute of limitations defense—or
simply inadvertently fails to raise it—there is no reason
that the defense should not be deemed waived. See Kon-
trick v. Ryan, 540 U.S. 443, 456 (2004) (“[A] claim-
processing rule . . . can . . . be forfeited if the party assert-
ing the rule waits too long to raise the point.”).
The Veterans Court’s practice of sua sponte address-
ing the timeliness issue is particularly troubling given
that the court functions as part of a uniquely pro-claimant
adjudicatory scheme. See Henderson, 131 S. Ct. at 1205
(“The solicitude of Congress for veterans is of long stand-
App. at 142. The court failed to cite any evidence, howev-
er, that requiring its clerk to raise the timeliness issue—
as opposed to allowing the Secretary to raise it—would
significantly expedite the processing of appeals. Even
more fundamentally, “[a]ny interest that a court generally
possesses in the enforcement of a statute of limitations
defense . . . ordinarily falls short of that necessary to
outweigh the benefits derived from adhering to the adver-
sarial process, and requiring that a defendant either raise
the defense of statute of limitations or waive its protec-
tion.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th
Cir. 2006) (footnote omitted).
6 CHECO v. SHINSEKI
ing. And that solicitude is plainly reflected in the [Veter-
ans’ Judicial Review Act], as well as in subsequent laws
that place a thumb on the scale in the veteran’s favor in
the course of administrative and judicial review of VA
decisions.” (citations and internal quotation marks omit-
ted)). “[I]t was for the purpose of ensuring that veterans
were treated fairly by the government and to see that all
veterans entitled to benefits received them that Congress
provided for judicial review.” Barrett v. Nicholson, 466
F.3d 1038, 1044 (Fed. Cir. 2006). The Veterans Court’s
practice of routinely raising an affirmative defense on
behalf of the Secretary is wholly out of place in an adjudi-
catory system intended by Congress to be “unusually
protective of claimants.” Henderson, 131 S. Ct. at 1204
(citations and internal quotation marks omitted).
Many veterans who seek redress from the Veterans
Court suffer from significant service-connected physical
and psychiatric disabilities. See Dixon v. Shinseki, 741
F.3d 1367, 1376 (Fed. Cir. 2014). Such veterans, moreo-
ver, are often unrepresented when they file their notices
of appeal. See id. The Secretary, by contrast, is repre-
sented by a regiment of skilled and experienced attorneys.
Given that the Secretary generally has a clear ad-
vantage—in terms of resources and experience—it defies
understanding why the Veterans Court believes it neces-
sary to routinely raise the timeliness defense on his
behalf. See Greenlaw, 554 U.S. at 244 (“Counsel almost
always know a great deal more about their cases than we
do, and this must be particularly true of counsel for the
United States, the richest, most powerful, and best repre-
sented litigant to appear before us.” (citations and inter-
nal quotation marks omitted)).
“The rule that points not argued will not be consid-
ered is more than just a prudential rule of convenience; its
observance, at least in the vast majority of cases, distin-
guishes our adversary system of justice from the inquisi-
torial one.” United States v. Burke, 504 U.S. 229, 246
CHECO v. SHINSEKI 7
(1992) (Scalia, J., concurring in the judgment). Before
1988, veterans who were denied disability compensation
generally had no recourse to the courts. See H.R. Rep. No.
100-963, at 26 (1988), reprinted in 1988 U.S.C.C.A.N.
5782, 5808. The goal of Congress in creating the Veterans
Court was to provide review by a tribunal “independent”
of the VA. Id. This objective is frustrated when the
Veterans Court steps into the shoes of the Secretary and
routinely raises an affirmative defense on his behalf.