In re Timeliness of Appeals

25 Vet. App. 109, 2011 U.S. Vet. App. LEXIS 2769, 2011 WL 6144193

• Court: United States Court of Appeals for Veterans Claims
• Decided: June 24, 2011
• Docket: Misc. No. 10-11
• Status: Published

Opinion

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

Cleveland 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

Newberry 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