This morning (12-21-2017), the CAVC issued Miscellaneous Order 15-17.

The full text of this procedural order of the Court of Appeals for Veterans Claims is below.

General Summary of the CAVC Miscellaneous Order.

The CAVC's practice has been to take note when an appeal is untimely filed and - sua sponte - issue a "Show Cause" Order to the Appellant as to why his or her appeal should not be dismissed as untimely filed.

This order now requires the Secretary

Insight into CAVC Miscellaneous Order 15-17.

The CAVC has long held a narrow, and I would argue, incorrect view of its own subject matter jurisdiction. One of the errors which led to this view was the belief that the 120-day deadline to file a Notice of Appeal was jurisdictional in nature.

Here's how that worked.

Until the Supreme Court decided the Henderson case in 2011, the CAVC had long held that the 120 day deadline to file a Notice of Appeal in 38 U.S.C. §7266 was jurisdictional.

This meant that the Veterans Court believed that if an appellant missed that 120-day deadline, for any reason at all, the CAVC lacked subject matter jurisdiction to hear the appeal.

In 2011, the Supreme Court in Henderson found (among other things) that the 120-day deadline to appeal in §7266 was a claims processing rule, and absent an expressed Congressional intent in the statute to attach jurisdictional consequences, it was a mere procedural rule without impact on the court's subject matter jurisdiction.

This was a critical holding: it opened the door to "Equitable Tolling" of the 120-day deadline to appeal.

Under the legal construct of equitable tolling, a federal appellate court applies a certain test to determine, essentially, whether equity requires the CAVC to look past a late-filed appeal and adjudicate the substance and merits of the appeal.

That test, which is beyond the scope of this post, generally requires a showing of "extraordinary circumstances."

In its application of "equitable tolling" doctrine, the CAVC has been notoriously "stingy" in considering late filed appeals.

In one case currently on appeal to the Federal Circuit Court of Appeals (James v. Shulkin, CAVC Cause #16-1948), the CAVC had rejected equitable tolling when a veteran placed his Notice of Appeal in the mailbox on the deadline to appeal, and it was not picked up by the US Postal Service that day.

The Federal Circuit Court of Appeals has not been particularly supportive of the CAVC's approach to equitable tolling. Arguably, the Court has been critical of the Veterans Court's uber-strict application, and general proclivity towards rejection, of the equitable tolling doctrine.

In a recent case, Sterling v. Shulkin, Federal Circuit Cause No 2017-1049, the CAVC dismissed an appeal filed 1 day after the appeal deadline, presumably because the veteran was homeless.

Here's a link to CAVC Judge Hagel's memorandum decision.

The issue of equitable tolling was not briefed by appellant before the Federal Circuit Court of Appeals. Nevertheless, a judge at the Federal Circuit Court of Appeal commented on the CAVC's decision to dismiss a claimant's appeal 1 day after the deadline to appeal:

It's really one day...this is almost unconscionable that the Veterans Court didn't accept this notice appeal. (Oral Arguments in Sterling v. Shulkin, at 18:37, October 2, 2017)

(Click here to download the full oral arguments: I encourage you to listen to the arguments from around the 17:00 - 28:00 minute mark to listen to the bench question the reasonableness of the Veteran's Court's denial of this appeal.)

I suspect that this Miscellaneous Order grows out of this history; it must, in some part, be a reflection of the CAVC's attempts to minimize its own increasingly heavy case-load by placing the responsibility to raise procedural issues - as opposed to jurisdictional issues - on the Secretary.

Impact on CAVC Practitioners.

If you file an appeal for your client at the Court of Appeals for Veterans Claims after the 120-day deadline, the court will no longer RAISE the issue of timelines, and places the burden of raising this issue on the Secretary.

The Secretary will need to file a Motion to Dismiss, and you will receive an opportunity to respond.

If the Secretary does not file a Motion to Dismiss, you are not "out of the woods".

You should be prepared to brief the issue in your principal brief if it is an issue in your appeal.

If you wait to address it in reply brief, there is some case law which suggests you may not have properly raised the issue for the first time in a reply brief.

What if the Secretary does not raise it in a Motion to Dismiss or in their briefs?

Can the CAVC sua sponte raise the issue even if it was not briefed?

Technically, yes, I don't think there is any rule that prohibits the court from exploring an un-briefed issue. The rule is fairly clear though: the CAVC says it will not address the issue of timeliness unless it is raised by the Secretary in a Motion to Dismiss.

However, as we've seen recently, the CAVC does, from time to time, freely offer its opinion or guidance.

Full Text of CAVC Miscellaneous Order 15-17.

Here is a link to the actual appeal: CAVC Miscellaneous Order 15-17.

Here is the full text:

"To obtain review of an adverse Board of Veterans' Appeals (Board) decision, an appellant must file a Notice of Appeal (NOA) with the Court within 120 days after the date on which notice of the Board decision is mailed. 38 U.S.C. § 7266(a); U.S. Vet. App. R. 4(a). The Supreme Court of the United States has determined that this 120-day period is not jurisdictional. Henderson v. Shinseki, 562 U.S. 428 (2011)

The Court has had a practice of sua sponte identifying NOAs that appear to have been filed outside the 120-day appeal period. Thereafter, the Court would issue an order directing the appellant to show cause why the appeal should not be dismissed. The Court has determined, effective Wednesday, December 6, 2017, that it will discontinue its practice of sua sponte raising the untimeliness of any NOA filed. Accordingly, all parties are hereby notified that for all appeals filed beginning on December 6, 2017, the Court will act on matters of timeliness of an appeal only if the Secretary of Veterans Affairs (Secretary) raises the issue in a motion to dismiss.

The Court is working to revise its Rules of Practice and Procedure to incorporate this change and to identify the time period during which a motion for dismissal based on timeliness will be permitted. Any proposed Rule will be made available for public comment before being adopted. As an interim measure, effective immediately, if the Secretary intends to raise the issue of an untimely filed NOA, the Secretary must file a motion to dismiss not later than 45 days after the Secretary files the Board decision pursuant to Rule 4(c)."