In re Timeliness of Appeals

In re Timeliness of Appeals, 25 Vet. App. 109, decided 2011-06-24.

ORDER

BY ORDER OF THE FULL COURT:

On March 1, 2011, the U.S. Supreme Court issued Henderson v. Shinseki, — U.S. -, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011), which held that the 120-day deadline under 38 U.S.C. § 7266 for filing a Notice of Appeal (NOA) with this Court “does not have jurisdictional attributes” and therefore that the dismissal of an untimely appeal for lack of jurisdiction was improper. 131 S.Ct. at 1206. Although Mr. Henderson had argued before this Court that the 120-day deadline in section 7266(a) is subject to equitable tolling and that his failure to timely file his NOA should be excused under tolling principles, the parties did not ask the Supreme Court to address that issue and the Supreme Court, therefore, expressed no view on the question. Id. at 1206 n. 4. In this regard, the Supreme Court further held that “[t]he 120-day limit is nevertheless an important procedural rule,” the limitation of which is a question to be considered on remand. Id. at 1206. The Supreme Court remanded the case to the Federal Circuit, which remanded it to this Court for further proceedings consistent with the Supreme Court’s decision.

This Court’s disposition of the equitable tolling issue in Henderson v. Shinseki, No. 05-0090 (U.S. Vet.App. remanded from the U.S. Court of Appeals for the Federal Circuit Apr. 13, 2011), may have a direct bearing on the disposition of many cases pending before the Court. For the sake of judicial economy and efficiency, the Court will stay cases affected by the Supreme Court’s Henderson decision until the Court has issued its decision in the remanded case.

THEREFORE, as ORDERED by this Court, the cases listed in the addendum to this order are stayed pending further order of the Court. If parties in cases not included in the addendum believe those cases should be stayed, they may file a proper motion requesting a stay.

ADDENDUM TO MISC. NO. 10-11

Case Name and Number:

Alcendor v. Shinseki, No. 11-0719

Alexander v. Shinseki, No. 11-739

Baker v. Shinseki, No. 11-0600

Baligod v. Shinseki, No. 10-3035

Baniqued v. Shinseki, No. 10-4303

Barberree v. Shinseki, No. 11-0928

Beard v. Shinseki, No. 11-907

Beasley v. Shinseki, No. 11-0546

Beckley v. Shinseki, No. 10-3972

Beever v. Shinseki, No. 11-0979

Billow v. Shinseki, No. 11-999

Bond v. Shinseki, No. 11-0924

Booker v. Shinseki, No. 11-0345

Bowman v. Shinseki, No. 11-0055

Brand v. Shinseki, No. 11-0414

Bravo v. Shinseki, No. 11-0057

Bumatay v. Shinseki, No. 10-3345

Calloway v. Shinseki, No. 11-0230

Carpenter v. Shinseki, No. 10-1266

Casey v. Shinseki, No. 11-1507

Clausen v. Shinseki, No. 11-1058

*110Cleveland v. Shinseki, No. 10-3951

Colon-Franco v. Shinseki, No. 11-1445

Coppola v. Shinseki, No. 10-3984

Crom v. Shinseki, No. 11-0519

Crosby v. Shinseki, No. 09-0189

Darlington v. Shinseki, No. 11-0478

Davis v. Shinseki, No. 10-3997

Decuir v. Shinseki, No. 11-0998

Delos Santos v. Shinseki, No. 11-0632

Dilworth v. Shinseki, No. 11-1586

Divito v. Shinseki, No. 10-3200

Dixon v. Shinseki, No. 11-1219

Dotson v. Shinseki, No. 10-4326

Dotson v. Shinseki, No. 11-1365

Enriquez v. Shinseki, No. 11-1511

Evans v. Shinseki, No. 11-0633

Fabro v. Shinseki, No. 10-3927

Feller v. Shinseki, No. 10-3945

Fleishman v. Shinseki, No. 11-521

Ford v. Shinseki, No. 11-0930

Frelow v. Shinseki, No. 10-3069

Garner v. Shinseki, No. 11-0352

Gist v. Shinseki, No. 11-0634

Golden v. Shinseki, No. 04-1385

Graham v. Shinseki, No. 11-0698

Granaas v. Shinseki, No. 11-0931

Gucaban v. Shinseki, No. 11-1096

Guerrero v. Shinseki, No. 10-4271

Halseth v. Shinseki, No. 05-3646

Henry v. Shinseki, No. 11-1307

Hickerson v. Shinseki, No. 11-0233

Higgins v. Shinseki, No. 11-0933

Hinojosa v. Shinseki, No. 10-258

Hodge v. Shinseki, No. 10-4000

Hoey v. Shinseki, No. 11-1041

Home v. Shinseki, No. 09-2042

Howard v. Shinseki, No. 10-3140

Huddleston v. Shinseki, No. 10-3157

Huffman v. Shinseki, No. 11-0008

Jackson v. Shinseki, No. 11-1236

Jones v. Shinseki, No. 11-1552

Jones v. Shinseki, No. 11-1337

Kamatoy v. Shinseki, No. 10-3874

Kennedy v. Shinseki, No. 11-1463

King v. Shinseki, No. 10-2622

King v. Shinseki, No. 11-1217

Kneece v. Shinseki, No. 11-0199

Lane v. Shinseki, No. 10-2450

Lang v. Shinseki, No. 10-3976

Lazerano v. Shinseki, No. 08-3886

Lowery v. Shinseki, No. 11-737

Luckett v. Shinseki, No. 11-0974

Lynn v. Shinseki, No. 11-0404

Madden v. Shinseki, No. 11-1464

Marguglio v. Shinseki, No. 11-0833

Martin v. Shinseki, No. 11-375

Martin v. Shinseki, No. 11-0867

Matuskovic v. Shinseki, No. 11-1147

McDonald v. Shinseki, No. 10-2736

McPeake v. Shinseki, No. 10-3956

McPeake v. Shinseki, No. 10-3944

Mezzulo v. Shinseki, No. 10-2277

Miller v. Shinseki, No. 10-3688

Miner v. Shinseki, No. 11-1525

Molina v. Shinseki, No. 10-4217

Montgomery v. Shinseki, No. 11-0363

Morgan v. Shinseki, No. 11-282

Morris v. Shinseki, No. 11-1333

Nance v. Shinseki, No. 11-1323

Nascimento v. Shinseki, No. 10-4005

Nelson v. Shinseki, No. 10-3115

*111Newberry v. Shinseki, No. 10-2010

Nicholson v. Shinseki, No. 11-0067

Niemela v. Shinseki, No. 11-1515

Nottingham v. Shinseki, No. 11-1182

O’Connell v. Shinseki, No. 11-1216

Olmschenk v. Shinseki, No. 11-0405

Padilla v. Shinseki, No. 10-3803

Pearson v. Shinseki, No. 10-2326

Pelovello v. Shinseki, No. 10-2392

Peterson v. Shinseki, No. 07-1495

Pettaway v. Shinseki, No. 11-1044

Pfuntner v. Shinseki, No. 10-2239

Postell v. Shinseki, No. 10-3736

Quiles v. Shinseki, No. 11-1658

Rader v. Shinseki No. 10-3978

Randle v. Shinseki, No. 10-4216

Randolph v. Shinseki, No. 10-4081

Rankin v. Shinseki, No. 10-4092

Raquidan v. Shinseki, No. 11-1516

Rasheed v. Shinseki, No. 09-3758

Reyes v. Shinseki, No. 11-1570

Rickett v. Shinseki, No. 09-2493

Rios v. Shinseki, No. 11-0836

Robbins v. Shinseki, No. 11-1100

Roberts v. Shinseki No. 11-1408

Robinson v. Shinseki, No. 11-525

Rodems v. Shinseki, No. 10-3182

Rodgers v. Shinseki, No. 11-0407

Rogers v. Shinseki, No. 10-3435

Ruiz-Soltero v. Shinseki No. 11-1294

Seymore v. Shinseki, No. 10-3745

Shapiro v. Shinseki, No. 09-826

Shuler v. Shinseki, No. 11-1659

Sirmon v. Shinseki No. 11-0088

Smith v. Shinseki, No. 11-650

Smith v. Shinseki, No. 09-146

Smith v. Shinseki, No. 11-1310

Smith v. Shinseki, No. 10-3852

Smith v. Shinseki, No. 10-3679

Soldevilla v. Shinseki, No. 10-3207

Stephens v. Shinseki, No. 11-0329

Stepp v. Shinseki, No. 11-0182

Stewart v. Shinseki, No. 10-3079

Strachan v. Shinseki, No. 11-20

Tackdol v. Shinseki, No. 10-3888

Taylor v. Shinseki, No. 11-0254

Thompson v. Shinseki, No. 10-3602

Thompson v. Shinseki, No. 11-0655

Thompson v. Shinseki, No. 10-4298

Thomson v. Shinseki, No. 10-3810

Toomer v. Shinseki, No. 09-4086

Traylor v. Shinseki, No. 11-0107

Tymes v. Shinseki, No. 10-3982

Vandeelen v. Shinseki, No. 11-1517

Vaow v. Shinseki, No. 11-0473

Vasquez v. Shinseki, No. 10-3983

Waterfield v. Shinseki, No. 11-0761

Weingarten v. Shinseki, No. 10-4334

Williams v. Shinseki, No. 11-1518

Williams v. Shinseki, No. 11-0411

Williams v. Shinseki, No. 11-0662

Wilson v. Shinseki, No. 11-1047

Wolfe v. Shinseki, No. 11-0962

Worley v. Shinseki, No. 11-1594

Wyrick v. Shinseki, No. 11-0185

Young v. Shinseki, No. 09-3216

Yu v. Shinseki, No. 11-1519

In re Timeliness of Appeals, 25 Vet. App. 112, decided 2011-10-05.

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

*113Miner, 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