In re Timeliness of Appeals , 2011 U.S. Vet. App. LEXIS 2206 ( 2011 )

ORDER

By order of the full-Court:

This order amends Miscellaneous Order No. 10-11 (issued June 24, 2011).

On June 24, 2011, cases potentially affected by the U.S. Supreme Court’s decision in Henderson v. Shinseki, — U.S. -, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011), were stayed while a panel considered whether equitable tolling was warranted in the remanded Henderson case, U.S. Vet.App. No. 05-0090. See Miscellaneous Order No. 10-11. The stay was in effect until further order of the Court. Id. On September 26, the Court granted the Henderson parties’ joint motion to terminate. Subsequently, a panel was convened in Lopez (Alfonso) v. Shinseki, U.S. Vet.App. No. 10-2139 (submitted to panel Sept. 30, 2011), to address an equitable tolling issue similar to the issue raised in Henderson.

This Court’s disposition of the equitable tolling issue in Lopez may have a direct bearing on the disposition of many cases pending before the Court, including many of those cases currently stayed by the Court’s June order. However, it appears that there may be no final underlying Board decision in a number of the cases currently stayed. In these cases, listed in Appendix I, the stay will be lifted, and the parties will be instructed by separate order to show cause why their appeals should not be dismissed.

All other cases stayed by the Court’s June order will remain stayed pending further order of the Court. Additionally, other cases filed since the June order that may be affected by a decision in Lopez shall be stayed pending further order of the Court; these cases are listed in Appendix II.

Further, as of the date of this order, the Clerk of the Court (Clerk) is directed to stay any Notice of Appeal (NOA) filed after the 120-day filing period provided in Rule 4(a) of the Court’s Rules of Practice and Procedure, and for which there is evidence that an underlying Board decision has been issued; such stay shall be effective until further order of the Court.

It is hereby

ORDERED that the stay imposed on June 24, 2011, by Miscellaneous Order No. 10-11 is lifted with regard to the cases listed in Appendix I, and the appellants in those cases shall be directed by separate order issued by the Clerk to show cause why their appeals shall not be dismissed. It is further

ORDERED that all cases listed in Appendix II are stayed pending further order of the Court. It is further

ORDERED that the Clerk shall stay cases in which an NOA is filed after the date of this order and after the 120-day filing period provided in Rule 4(a) of the Court’s Rules of Practice and Procedure, and for which there is evidence that an underlying Board decision has been issued; such stay shall be effective until further order of the Court.

Appendix I

Dilworth, 11-1586

Fleishman, 11-0521

Hodge, 10-4000

Lowery, 11-0737

Martin, 11-0375

Matuskovic, 11-1147

Miner, 11-1525

Smith, 11-0650

Appendix II

Barraia, 11-2106

Caliyo-Viloria, 11-2184

Carter, 11-2216

Compton, 11-2390

Croce, 11-2737

Daniels, Sr., 11-2109

Darrow, 11-2805

Deborde, 11-2509

Eaddy, 11-2064

Florita, 11-2671

Ginter, 11-2908

Gray, 11-2394

Gulley, 11-2464

Hall, 11-2742

Harvey, Jr., 11-2672

Henri, 11-2340

Hobbs, 11-2861

Hudson, 11-2803

Johnson, 11-2030

Johnson, 11-2164

Kostelecky, 11-2323

LaClaire, 11-2204

Latsko, 11-2825

Madson, II, 11-2262

McDonald, 11-2883

Meaux, 11-2884

Mitchell, 11-2400

Ored, 11-2592

Padlan, 11-2412

Payne, 11-2051

Placino, 11-2032

Pryor, 11-2346

Raphael, 11-2360

Reynolds, 11-2828

Stephenson, 11-2889

Swan, 11-2083

Terry, 11-2912

Upshaw, 11-2547