Veteranclaims’s Blog

February 7, 2012

Court Order MISC. NO. 04-12, Prior 120 Day Violation Dismissals Now Appealable

Filed under: Uncategorized — veteranclaims @ 3:56 pm

Excerpt from Court Order below:
“Accordingly, it is ORDERED that, not later than 120 days after the date of this order, any appellant whose appeal was dismissed pursuant to Henderson I may move the Court to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove.”
=====================================
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
MISC. NO. 04-12
IN RE: TIMELINESS OF APPEALS AND BOVE V. SHINSEKI, __ VET.APP. __, NO. 08-1468, 2011
WL 6364587 (PER CURIAM ORDER DEC. 20, 2011).
Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE,
DAVIS, and SCHOELEN, Judges.
O R D E R
Pursuant to 38 U.S.C. § 7264 (investing rule-making authority in the Court) and Rule 2 of the Court’s Rules of Practice and Procedure (Rules) (Court may suspend its Rules), the Court has determined the need to issue a general order in light of two recent decisions fundamentally and uniquely affecting the Court’s treatment of the 120-day filing period in which to file an appeal at the Court, as required by 38 U.S.C. § 7266(a). First, the U.S. Supreme Court determined in Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (Henderson III), that the 120-day filing period is not a
jurisdictional prerequisite to an appeal but rather an “important procedural rule.” Second, this Court determined in Bove v. Shinseki, __ Vet.App. __, No. 08-1468, 2011 WL 6364587 (per curiam order Dec. 20, 2011), that the 120-day filing period is subject to equitable tolling within the parameters
of the precedential decisions on equitable tolling that predated this Court’s now-overruled decision in Henderson v. Peake, 22 Vet.App. 217 (2008) (Henderson I) (relying on Bowles v. Russell, 551 U.S. 205 (2007), and holding that the 120-day filing period was jurisdictional and not subject to
equitable tolling), aff’d sub nom., Henderson v. Shinseki, 589 F.3d 1201 (Fed.Cir. 2009) (en banc)(Henderson II), rev’d, Henderson III.
Subsequent to Henderson I and prior to Bove, a number of appeals were dismissed for untimely filing and lack of jurisdiction, without consideration of the appellants’ equitable tolling arguments. Mandate has entered in many of those decisions. In the interests of justice, for any such appellant the Court will consider a motion to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove, provided such motion and argument are filed within 120 days of this order. The appeals affected by this order were all dismissed by the Court between July 24, 2008, and December 20, 2011.
Accordingly, it is ORDERED that, not later than 120 days after the date of this order, any appellant whose appeal was dismissed pursuant to Henderson I may move the Court to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove. It is further ORDERED that, not later than 14 days after the filing of any motion pursuant to this order, the Secretary may file a response.
DATED: February 7, 2012 PER CURIAM.
[Clerk’s Note: Motions to recall mandate should conform to Rule 27 of the Court’s Rules of Practice and Procedure, and should be submitted via: (1) mail, personal delivery, or other delivery service; (2) fax to (202)501-5848; or (3) email to efiling@uscourts.cavc.gov.]

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1 Comment »

  1. wHAT ABOUT pAge 2 on the back of page 1 that states ” ORDERED that not later tan 14 days after the filing of any motion pursusnt to this
    order, the Secetary may file a response. (What happens if a response by the Secetary is late?)

    Comment by Peter J. Sperlazza — April 21, 2012 @ 1:21 pm


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