United States Court of Appeals 

for the Federal Circuit ______________________ 

CERISE CHECO,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2013-7059

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-3683.

______________________ 

Decided: April 23, 2014

______________________ 

MARK R. LIPPMAN, The Veterans Law Group, of La 

Jolla, California, argued for claimant-appellant. 

TARA K. HOGAN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were STUART F.

DELERY, Assistant Attorney General, BRYANT G. SNEE, 

Acting Director, and MARTIN F. HOCKEY, JR., Assistant 

Director. Of counsel on the brief were MICHAEL J.

TIMINSKI, Deputy Assistant General Counsel, and MARTIE 

ADELMAN, Attorney, United States Department of Veterans Affairs, of Washington, DC. 
2 CHECO v. SHINSEKI

JAMES R. BARNEY, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, of Washington, DC, for amicus 

curiae. Of counsel on the brief was TERENCE STEWART, 

Stewart & Stewart of Washington, DC. Of counsel was 

KEVIN D. RODKEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Atlanta, Georgia.

______________________ 

Before PROST, MAYER, and CHEN, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. 

Opinion dissenting-in-part filed by Circuit Judge MAYER. 

PROST, Circuit Judge. 

This is an appeal from the United States Court of Appeals for Veterans Claims (“Veterans Court”). Cerise 

Checo initially sought an increased disability rating for a 

back injury, which the Board of Veterans’ Appeals denied 

on July 6, 2011. However, Ms. Checo was homeless and 

unable to obtain mail until October 6, 2011, when she 

finally received a copy of the adverse decision. She eventually filed her Notice of Appeal (“NOA”) 33 days late. 

The Veterans Court concluded that Ms. Checo’s NOA was 

untimely and that she failed to show why her homelessness warranted equitable tolling. See Checo v. Shinseki, 

26 Vet. App. 130, 135 (2013). 

We conclude that the Veterans Court (1) used an inappropriate due diligence standard; and (2) erred in 

determining that Ms. Checo’s homelessness did not cause 

a 91-day delay in her filing. Therefore, we vacate the 

Veterans Court’s dismissal of Ms. Checo’s appeal and 

remand this case for further proceedings. 

I. BACKGROUND AND PROCEDURAL HISTORY

Ms. Checo initially filed a claim seeking an increased 

disability rating for lumbosacral spinal stenosis, including 

disk bulges at the L3-L4 and L5-S1 vertebrae, which is 
CHECO v. SHINSEKI 3

currently rated at a 20% disability. On July 6, 2011, the 

Board of Veterans’ Appeals issued a decision denying her 

request. Ms. Checo was homeless at that time, residing in 

shelters and temporary housing without the ability to 

receive mail. On September 27, 2011, Ms. Checo contacted the Department of Veterans Affairs (“VA”) to provide a 

new address, and she received a copy of the adverse 

decision on October 6, 2011—after 91 days of the 120-day 

filing period under 38 U.S.C. § 7266 had passed. On 

December 7, 2011, Ms. Checo filed an NOA of the decision, 33 days after the expiration of the 120-day period. 

In the NOA, she wrote: “Due to economic hardship, I’ve 

been homeless for extensive periods of time since July 

2009, residing in shelters and temporary housing. During 

this time, I was unable to receive mail and did not learn 

about the hearing and subsequent decision until” a copy of 

the decision was mailed to her in October 2011. J.A. 9.

Under Bove v. Shinseki, the Clerk of the Veterans 

Court may identify late appeals and issue show cause 

orders for why these appeals should not be dismissed. See 

25 Vet. App. 136, 140-43 (2011). Pursuant to this policy 

and before any substantive briefing occurred, the Clerk of 

the Veterans Court ordered the Secretary to file a response discussing whether the circumstances in Ms. 

Checo’s case warranted the equitable tolling of the 120-

day judicial appeal period.1 

In its response, the Secretary noted that “it appears 

that [Ms. Checo’s] homelessness was due to circumstances 

beyond her control.” J.A. 20. The Secretary also stated

1 “As a general matter, equitable tolling pauses the 

running of, or ‘tolls,’ a statute of limitations when a 

litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a 

timely action.” Lozano v. Montoya Alvarez, No. 12-820, 

2014 WL 838515, at *6 (U.S. Mar. 5, 2014). 

 
4 CHECO v. SHINSEKI

that Ms. Checo’s homelessness “would have delayed her 

filing of her NOA.” Id. at 20-21.

After the Veterans Court accepted the Secretary’s 

concession that Ms. Checo’s homelessness qualified as an 

extraordinary circumstance, it ruled that Ms. Checo 

nonetheless failed to prove the two other necessary elements—due diligence and direct causation—to warrant 

equitable tolling. See Checo, 26 Vet. App. at 134-36. The 

Veterans Court then dismissed Ms. Checo’s appeal. Id. at 

136. 

II. DISCUSSION

Ms. Checo challenges two aspects of the Veterans 

Court’s order. First, she questions whether the Veterans 

Court acted within its authority when it raised the timeliness issue sua sponte under Bove. Second, Ms. Checo 

disputes the Veterans Court’s conclusion that she is not 

entitled to equitable tolling. We address each of Ms. 

Checo’s challenges in turn. 

A. The Bove Decision 

As noted above, in Bove v. Shinseki the Veterans 

Court directed the Clerk of the Court to identify late 

appeals and issue show-cause orders for why these appeals should not be dismissed. 25 Vet. App. at 140-43. 

Ms. Checo and Amicus2 both argue that Bove, which was 

never appealed to this court, should now be overruled. 

We have jurisdiction to review Veterans Court decisions 

concerning any challenge to an interpretation of a statute, 

regulation, or rule under 38 U.S.C. § 7292(a). Cummings 

v. West, 136 F.3d 1468, 1471 (Fed. Cir. 1998); Cox v. West, 

149 F.3d 1360, 1362 (Fed. Cir. 1998) (“These questions of 

legal interpretation are clearly within our jurisdiction.”). 

2 The Federal Circuit Bar Association filed an amicus curiae brief in support of Ms. Checo.

 
CHECO v. SHINSEKI 5

“Such legal determinations of the Veterans Court are 

reviewed without deference.” Bingham v. Nicholson, 421 

F.3d 1346, 1348 (Fed. Cir. 2005) (citation omitted). 

To begin her argument, Ms. Checo notes the distinction between non-jurisdictional time limitations, which

are waivable, and jurisdictional limitations, which are 

not. See, e.g., Eberhart v. United States, 546 U.S. 12, 20-

21 (2005) (“[C]laim-processing rules thus assure relief to a 

party properly raising them, but do not compel the same 

result if the party forfeits them”). She argues that here 

the Veterans Court’s practice of raising timeliness issues 

on its own eliminates the opportunity for the Secretary to 

waive the right to challenge the non-jurisdictional appeal 

period limitation. 

Ms. Checo also argues that if Congress had wanted 

§ 7266(a) to be non-waivable, it would have done so. 

Instead, according to Ms. Checo, this Veterans Court 

procedure creates the appearance of bias against disabled 

veterans. Cf. Barrett v. Nicholson, 466 F.3d 1038, 1044 

(Fed. Cir. 2006) (“[I]t was for the purpose of ensuring that 

veterans were treated fairly by the government and to see 

that all veterans entitled to benefits received them that 

Congress provided for judicial review . . . .”). 

Next, Ms. Checo points out that judicial review of 

Veterans Board decisions is an adversarial process, so she 

contends that only the parties should present the issues. 

See Bobbitt v. Principi, 17 Vet. App. 547, 552 (2004)

(“[F]iling an appeal to this Court is not an action within 

the ‘non-adversarial, manifestly pro-claimant veterans’ 

benefits system. Rather, [it] . . . is the first step in an 

adversarial process challenging the Secretary’s decision 

on benefits.”) (citation omitted). 

Finally, Ms. Checo requests that we compare the Veterans Court to the Social Security disability program, as 

it has been called an analogous system. Henderson ex rel. 

Henderson v. Shinseki, 131 S.Ct. 1197, 1204 (2011). And 
6 CHECO v. SHINSEKI

the Supreme Court has stated that the time period for 

filing an appeal for judicial review of a Social Security 

decision is waivable. See Bowen v. New York, 476 U.S. 

467, 474 n.10 (1986). 

We have considered all of Ms. Checo’s arguments, but 

we do not find them persuasive. While Ms. Checo relies 

on several cases that distinguish non-jurisdictional and 

jurisdictional limitations, she fails to point to a single case 

that affirmatively states that the Veterans Court cannot 

raise sua sponte a non-jurisdictional limitation. Further, 

as the Government notes, the Supreme Court has permitted district courts to raise non-jurisdictional statute of 

limitations issues sua sponte. See, e.g., Day v. 

McDonough, 547 U.S. 202, 209 (2006) (“In sum, we hold 

that district courts are permitted, but not obliged, to 

consider, sua sponte, the timeliness of a state prisoner’s 

habeas petition.”).3 

Regarding Ms. Checo’s arguments that Congress 

could have, and did not, make § 7266(a) unwaivable, we 

conclude that Congress nonetheless gave the Veterans 

Court broad discretion to prescribe, interpret, and apply 

3 Ms. Checo attempts to discount the relevance of 

Day, arguing that in Wood v. Milyard, the Supreme Court 

referred to such habeas petition cases as “modest exception[s]” to the general forfeiture rule that “implicate[]

values beyond the concerns of the parties.” 132 S.Ct. 

1826, 1832 (2012) (citation omitted). Additionally, Amicus claims that this decision advises appellate courts to 

use restraint in applying sua sponte review. However, 

Wood does not apply to this case; in Wood an appeals 

court dismissed a petition as untimely after the state 

waived the issue below. Id. at 1834. In contrast, here the 

Veterans Court notified the Secretary of the issue before 

it was required to file a pleading in the case, so a waiver 

never occurred.

 
CHECO v. SHINSEKI 7

its own rules. The Veterans Court uses that discretion 

here to require that a claimant file an NOA within the 

time allowed by law. See U.S. Vet. App. R. 38(b) (authorizing the Veterans Court to take “such action as the court 

deems appropriate, including dismissal of the appeal,”

when a party fails to comply with a rule of the Veterans 

Court). 

Further, the fact that proceedings in the Veterans 

Court are adversarial does not prevent the Veterans 

Court from managing its cases, which it does by requiring 

its Clerk to identify late NOAs and issue show-cause 

orders before any substantive pleadings are filed. And we 

note that even when an NOA is untimely, the Veterans 

Court still considers whether equitable tolling applies, so 

this procedure does not create any unfair bias. 

Finally, despite the similarities between Veterans 

Appeals and Social Security cases, we note that parties in 

Social Security cases are still subject to Federal Rule of 

Civil Procedure 8(c). This rule requires a party to state 

any affirmative defense in response to a pleading, so it 

makes sense in those cases to allow waiver of nonjurisdictional time limitations. But the Federal Rules of 

Civil Procedure do not apply to the appellate Veterans 

Court.

For the foregoing reasons, we see no reason at this 

time to overrule the holding in Bove that grants the

Veterans Court authority to address untimely filings sua 

sponte.4 We conclude that in this case the Veterans Court 

4 We need not consider the Veterans Court’s separate holding in Bove that the 120-day appeal period is not 

a matter subject to waiver or forfeiture by the Secretary; 

in this case such waiver or forfeiture never occurred. See 

n.3, infra.

 
8 CHECO v. SHINSEKI

did not err by raising sua sponte the untimely appeal 

issue. 

B. Equitable Tolling

We next turn to whether the Veterans Court erred in

ruling that Ms. Checo is not entitled to equitable tolling. 

As we stated previously, this court has jurisdiction to 

review the legal determinations of the Veterans Court

under 38 U.S.C. § 7292. However, we may not review the 

Veterans Court’s factual findings or its application of law 

to facts. Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. 

Cir. 2011) (citing Reizenstein v. Shinseki, 583 F.3d 1331, 

1334 (Fed. Cir. 2009)). 

In order to benefit from equitable tolling, the Veterans Court has previously required a claimant to demonstrate three elements: (1) extraordinary circumstance; (2) 

due diligence; and (3) causation. See McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005), adhered to on reconsideration, 20 Vet. App. 86 (2006). This is consistent with 

other jurisdictions and also with the guidance provided by 

the Supreme Court, and neither party challenges this test 

here. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 

96 (1990) (“We have allowed equitable tolling in situations 

where the claimant has actively pursued his judicial 

remedies . . . . But the principles of equitable tolling . . . 

do not extend to what is at best a garden variety claim of 

excusable neglect.”).

1. Extraordinary Circumstance

During oral argument at the Veterans Court, the Secretary acknowledged that it has conceded that Ms. 

Checo’s homelessness qualifies as an extraordinary circumstance in this case. See J.A. 75. The Veterans Court 
CHECO v. SHINSEKI 9

accepted this concession, and we agree.5 We therefore 

conclude that Ms. Checo has satisfied the extraordinary 

circumstance element.

2. Due Diligence 

In addition to an extraordinary circumstance, a party 

who seeks equitable tolling must also show due diligence. 

See Irwin, 498 U.S. at 96; Harper v. Ercole, 648 F.3d 132, 

136 (2d Cir. 2011); McCreary, 19 Vet. App. at 327. We 

5 Throughout its briefing and during oral argument, 

the Secretary repeatedly told the Veterans Court that it 

was conceding the extraordinary circumstance element. 

Early in the argument, the Veterans Court indicated it 

was aware of this fact. See J.A. 61 (“I believe the Secretary conceded that there was extraordinary circumstance

. . . .”). Nonetheless, the Veterans Court spent the majority of the time during oral argument questioning both 

parties over whether that concession was appropriate and 

whether the Veterans Court needed to accept the Secretary’s concession. See, e.g., J.A. 63-65, 71, 75-77, 81-85. 

The reason for the Veterans Court’s reluctance to accept 

this concession is not apparent to us. See, e.g., United 

States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 

2010) (“Nothing is more common than for parties by 

stipulation formal or informal to agree to facts that, were 

it not for the stipulation, would have to be proved by 

evidence, in this case a judicial record.”); Ferguson v. 

Neighborhood Housing Servs., 780 F.2d 549, 551 (6th Cir. 

1986) (“[U]nder federal law, stipulations and admissions 

in the pleadings are generally binding on the parties and 

the Court.”) (citation omitted); State Farm Mut. Auto. Ins. 

Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968) 

(“The purpose of a judicial admission is that it acts as a 

substitute for evidence in that it does away with the need 

for evidence in regard to the subject matter of the judicial 

admission.”) (citation omitted). 

 
10 CHECO v. SHINSEKI

begin our inquiry by considering for which period Ms. 

Checo needed to show such due diligence—during the 

entire 120-day appeal, during the period of extraordinary 

circumstances (i.e., ending on October 6, 2011 when she 

received a copy of the decision6), during the period between the end of the extraordinary circumstances and the 

date of filing the NOA (i.e., between October 6, 2011 and 

December 7, 2011), or during some other period.7 

Although this is an issue of first impression in this 

court, we find the Second Circuit’s analysis in Harper v. 

Ercole persuasive. See 648 F.3d at 139. There, the Second Circuit concluded that due diligence must only be 

shown during the requested tolling period, which can 

occur at any time during the statutory period. Id. The 

Second Circuit explained that “[a] court may suspend the 

statute of limitations for the period of extraordinary 

circumstances and determine timeliness by reference to 

6 At oral argument before the Veterans Court, the 

Secretary suggested that September 27, 2011—the date 

when Ms. Checo contacted the VA and requested a mailing of the adverse decision—should mark the end of the 

extraordinary circumstance period. J.A. 78-79. However, 

on appeal the government has not contested Ms. Checo’s 

assertion that October 6, 2011 marks the end of the 

period. We note that whether September 27, 2011 or 

October 6, 2011 is the end date of the extraordinary 

circumstance period is not relevant to this case. Therefore, we will adopt Ms. Checo’s October 6, 2011 date as 

the end of the extraordinary circumstance period. 

7 Although the Veterans Court declined to address 

this issue, see Checo, 26 Vet. App. at 134-35, we have 

jurisdiction to decide the question. Linville v. West, 165 

F.3d 1382, 1384 (Fed. Cir. 1990) (stating that arguments 

which were ignored or rejected sub silentio by Veterans 

Court can still be reviewed on appeal).

 
CHECO v. SHINSEKI 11

the total untolled period without requiring a further 

showing of diligence through filing.” Id. The parties refer 

to this in their briefing as the “stop-clock” approach

because the clock measuring the 120-day appeal period is 

“stopped” during the extraordinary circumstance period 

and starts ticking again only when the period is over. As 

applied to this case, the stop-clock approach would mean 

that the appeal period was suspended between July 7, 

2011 and October 6, 2011, and we would only need to 

consider whether Ms. Checo has shown diligence during 

that time. 

The Veterans Court, however, has previously required 

a showing of due diligence throughout the entire appeal 

period. See McCreary, 19 Vet. App. at 333. In that case,

the extraordinary circumstance came in the form of a 

hurricane; due to the storm, the claimant misplaced his 

appeal papers. Id. The Veterans Court found that the 

claimant could have found and filed his papers at some 

unspecified time before the expiration of the limitations 

period despite the hurricane. See id. at 333-34. As applied to this case, the McCreary standard would require 

us to examine whether Ms. Checo showed due diligence 

from July 7, 2011 (the beginning of the 120-day appeal 

period) until December 7, 2011 (the date that she filed her 

NOA).

Ms. Checo argues that the stop-clock approach should 

apply in this case, making the relevant due diligence 

period the 91 days that she was homeless between July 7, 

2011 and October 6, 2011, with the entire 120-day appeal 

period starting to run upon her receipt of the adverse 

decision. She claims that the stop-clock approach applies 

when the extraordinary circumstance period has a definite end date for equitable tolling. Here, that definite end 

date is October 6, 2011, marking the end of her homelessness. She argues that the McCreary standard is a fallback approach, one that is to be used only when the 

extraordinary circumstance period has no end date, such 
12 CHECO v. SHINSEKI

as the recovery period after a hurricane. During oral 

argument before the Veterans Court, the Secretary agreed 

that the stop-clock approach would be appropriate in Ms. 

Checo’s case. See J.A. 79 (“[T]he Secretary does not 

contest that the court should use the stop-clock approach.”); see also Oral Arg. Tr. 28:20-28 (“Before the 

Veterans Court the Secretary conceded that it did not 

have a problem with the stop-clock approach.”).

We agree with both parties and adopt the stop-clock 

approach. As a result, we conclude that Ms. Checo must 

only demonstrate due diligence during the extraordinary 

circumstance period, which began on July 7, 2011 and

ended on October 6, 2011. And if she is successful in 

demonstrating both due diligence and causation during 

this time period,8 under the stop-clock approach the 

appeal clock would begin to run on October 6, 2011, 

making her NOA (filed on December 7, 2011) timely.9

Below, Ms. Checo explained to the Veterans Court in 

her NOA that while she was homeless she “was unable to 

receive mail and did not learn about the hearing and 

subsequent decision until” October 6, 2011. J.A. 9. The 

Veterans Court nonetheless concluded not only that Ms. 

Checo had failed to prove due diligence but also that she

“failed to even assert that she acted diligently.” Checo, 26 

Vet. App. at 135 (emphasis added). The Government 

argues that this factual finding is not subject to review by 

our court and that we must therefore uphold the Veterans 

Court’s determination that the statute should not be 

equitably tolled. 

Although we may not review the Veterans Court’s factual findings, we may review whether the Veterans Court 

8 See Section II.B.3, infra.

9 Indeed, Ms. Checo would have had 120 days after 

October 6, 2011 to file her NOA.

 
CHECO v. SHINSEKI 13

erred as a matter of law in using an improper standard of 

due diligence for Ms. Checo. See 38 U.S.C. § 7292(a). The 

Supreme Court has stated that “[t]he diligence required 

for equitable tolling purposes is ‘reasonable diligence,’ not 

‘maximum feasible diligence.’” Holland v. Florida, 560 

U.S. 631, 653 (2010) (citations and internal quotation 

marks omitted). 

However, we lack sufficient information to even determine what diligence standard the Veterans Court used

in concluding that Ms. Checo had not met her burden. We 

note that during oral argument before the Veterans 

Court, the Secretary suggested that Ms. Checo should 

have “sought general delivery of [her] mail knowing that 

there was an outstanding Board decision or an appeal 

pending before the Board.” J.A. 77. But such action was 

impossible for Ms. Checo, as she stated that she was 

“unable to receive mail,” so she had no new address to 

provide until September 27, 2011, when she contacted the 

VA. J.A. 2, 9. The Secretary did not challenge the veracity of that assertion. 

The Veterans Court stated that Ms. Checo should 

have “cited . . . actions that she took during [the period of 

time sought to be tolled] . . . that would tend to prove such 

diligence in pursuing her appeal.” Checo, 26 Vet. App. at 

135. But it remains unclear what further actions she 

needed to specifically cite to support her claim that she 

acted diligently. Indeed, during oral argument in our 

court, the Government’s counsel expressed “hesitat[ion] to 

put out factors as to what she could have done or should 

have done.” Oral Arg. Tr. 16:40-48; see also id. at 31:14-

25 (“Q: Would the government feel that it was necessary 

to [challenge] a statement that said “I tried my best”? A: I 

think that is a very difficult question.”). Since we do not 

know what would have been necessary to prove due 

diligence to the Veterans Court, we are unable to evaluate 

whether it used too high of a due diligence standard. 
14 CHECO v. SHINSEKI

We therefore remand Ms. Checo’s case back to the 

Veterans Court so that it may clarify and apply an appropriate due diligence standard to the facts of Ms. Checo’s 

case as well as engage in further fact finding as necessary. 

3. Causation 

Below, the Veterans Court “emphasize[d] that Ms. 

Checo failed to provide any facts to support a finding of 

direct causation between her homelessness and her 

failure to file her [NOA] within the 120-day judicial 

appeal period.” Checo, 26 Vet. App. at 134. Thus, the 

Veterans Court concluded that Ms. Checo had not carried 

her burden. Id. 

We conclude that this was a legal error, as the Veterans Court used the wrong test for causation. The Veterans Court required Ms. Checo to prove why her 

homelessness caused her inability to file the NOA within 

the 120-day appeal period, but as discussed above in 

Section II.B.2, under the stop-clock approach Ms. Checo 

only needed to demonstrate causation between her homelessness and the period she sought to be tolled (i.e., the 

91-day period). See generally Harper, 648 F.3d at 137-38. 

In her NOA, Ms. Checo explained that while she was 

homeless, she was “unable to receive mail and did not 

learn about the hearing and subsequent decision until” a 

copy of the decision was mailed to her on October 6, 2011, 

marking the end of the 91-day period she now seeks to 

toll. J.A. 9. Thus, although Ms. Checo failed to explain 

why her homelessness caused a delay between October 6, 

2011 and the end of the appeal period, she did indeed 

explain why her homelessness caused a delay during the 

91-day period. 

Further, in its response to the Veterans Court’s initial 

request that the Secretary discuss whether the circumstances in Ms. Checo’s case warranted equitable tolling, 
CHECO v. SHINSEKI 15

the Secretary stated that Ms. Checo’s homelessness 

“would have delayed her filing of her NOA.” J.A. 20-21. 

Ms. Checo argues that this statement is a concession that 

her homelessness caused a 91-day delay. The Government disagrees with Ms. Checo’s interpretation. However, we need not decide whether or not this statement was 

a concession; even if it was not, the statement still provides further support for our conclusion that Ms. Checo

has demonstrated that her homelessness caused a 91-day 

delay in filing. 

III. CONCLUSION

For the foregoing reasons, we hold that the Veterans 

Court did not err in following its own procedure, outlined 

in Bove, and raising sua sponte the timeliness issue. 

However, we conclude that the Veterans Court did err in 

determining that Ms. Checo had not shown due diligence 

or causation to support her equitable tolling claim. We 

reverse the Veterans Court’s determination that she 

failed to show causation and vacate the Veterans Court’s 

determination that she failed to show due diligence. We 

remand this case back to the Veterans Court for further 

consideration consistent with this opinion. 

REVERSED-IN-PART, VACATED-IN-PART, AND 

REMANDED
United States Court of Appeals 

for the Federal Circuit ______________________ 

CERISE CHECO,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2013-7059

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-3683.

______________________ 

MAYER, Circuit Judge, dissenting-in-part.

I agree that the United States Court of Appeals for 

Veterans Claims (“Veterans Court”) erred in failing to 

apply the “stop-clock” approach to equitable tolling and in 

dismissing Cherise Checo’s appeal as untimely. I disagree, however, with the conclusion that the Veterans 

Court has the authority to routinely raise, on its own 

initiative, the statute of limitations defense on behalf of 

the Secretary of Veterans Affairs (“Secretary”). “In our 

adversary system, in both civil and criminal cases, in the 

first instance and on appeal, we follow the principle of 

party presentation. That is, we rely on the parties to 

frame the issues for decision and assign to courts the role 

of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). The 
2 CHECO v. SHINSEKI

Veterans Court’s regular practice of addressing, sua 

sponte, the question of whether a veteran’s appeal is 

timely filed is contrary to the Supreme Court’s admonition that a court should independently consider a statute 

of limitations defense only “in exceptional cases.” Wood v. 

Milyard, 132 S. Ct. 1826, 1834 (2012). Regularly raising 

an affirmative defense on behalf of the Secretary creates 

the appearance that the court functions not as a “neutral 

arbiter,” Greenlaw, 554 U.S. at 243, but instead as a mere 

appendage of the Department of Veterans Affairs (“VA”), 

as even the Veterans Court once recognized. See 

MacWhorter v. Derwinski, 2 Vet. App. 133, 135 (1992) 

(“[F]erreting out . . . implicit or possible contentions” on 

behalf of the Secretary “would be the antithesis of the 

adversarial judicial appellate process.”); see also Hodge v. 

West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (“[I]n the 

context of veterans’ benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of 

fairness carries great weight.”). 

Of course, some filing deadlines are jurisdictional. 

See John R. Sand & Gravel Co. v. United States, 552 U.S. 

130, 133-39 (2008) (“Sand & Gravel”) (concluding that 

compliance with the time limit for filing suit in the United 

States Court of Federal Claims is a jurisdictional requirement); Bowles v. Russell, 551 U.S. 205, 209 (2007) 

(concluding that the time limit for appealing from a 

district court to a court of appeals is “mandatory and 

jurisdictional” (citations and internal quotation marks 

omitted)). Because “federal courts have an independent 

obligation to ensure that they do not exceed the scope of 

their jurisdiction,” they are required to assure compliance 

with jurisdictional filing deadlines, even in situations in 

which the timeliness question has not been raised by the 

parties. Henderson ex rel. Henderson v. Shinseki, 131 S. 

Ct. 1197, 1202 (2011); see Arbaugh v. Y & H Corp., 546 

U.S. 500, 506 (2006) (“The objection that a federal court 
CHECO v. SHINSEKI 3

lacks subject-matter jurisdiction may be raised by a party, 

or by a court on its own initiative, at any stage in the 

litigation, even after trial and the entry of judgment.” 

(citation omitted)).

But other filing deadlines are “claims-processing 

rules” which do not limit a court’s jurisdiction. Dolan v. 

United States, 560 U.S. 605, 610 (2010). Because such 

claims-processing rules only afford relief to the party 

properly raising them, they can be waived or forfeited. 

See id. (“Unless a party points out to the court that another litigant has missed [a non-jurisdictional] deadline, 

the party forfeits the deadline’s protection.”); Sand & 

Gravel, 552 U.S. at 133 (“[T]he law typically treats a 

limitations defense as an affirmative defense . . . subject 

to rules of forfeiture and waiver.”). Furthermore, while 

an appellate court has discretion to address a nonjurisdictional limitations defense on its own initiative, it 

“should reserve that authority for use in exceptional 

cases,” Wood, 132 S. Ct. at 1834, which surely would not 

include the situation here or, for example, when a veteran 

has an incapacitating injury or illness. 

The 120-day time limit for appealing to the Veterans 

Court set out in 38 U.S.C. § 7266(a) is not a jurisdictional 

prerequisite, but is instead a “quintessential claimprocessing rule[].” Henderson, 131 S. Ct. at 1203. Accordingly, the Veterans Court erred when it: (1) concluded 

that the statute of limitations defense could not be waived 

by the Secretary; and (2) directed its clerk of court to 

screen all appeals for timeliness and to issue show cause 

orders requiring veterans to demonstrate why any appeal 

filed outside the 120-day filing period should not be 

dismissed. See Bove v. Shinseki, 25 Vet. App. 136, 140-43 

(2011). “[A] federal court does not have carte blanche to 

depart from the principle of party presentation basic to 

our adversary system.” Wood, 132 S. Ct. at 1833. Instead, the Supreme Court has repeatedly cautioned that a 

court can sua sponte address an affirmative defense only 
4 CHECO v. SHINSEKI

in a narrow set of circumstances. See id. at 1834 (concluding that an appellate court abused its discretion by 

raising a timeliness defense on its own initiative); Greenlaw, 554 U.S. at 244 (Because our justice “system is 

designed around the premise that the parties know what 

is best for them, and are responsible for advancing the 

facts and arguments entitling them to relief,” courts 

“normally decide only questions presented by the parties.” 

(citations and internal quotation marks omitted)); Arizona 

v. California, 530 U.S. 392, 413 (2000) (Because it 

“erod[es] the principle of party presentation so basic to 

our system of adjudication,” courts must be “cautious” 

about raising an affirmative defense sua sponte.). Day v. 

McDonough, 547 U.S. 198, 206-10 (2006), relied upon by 

the Veterans Court, is not to the contrary. As the Supreme Court explained in Wood, Day stands for the limited proposition that a court has discretion “to consider a 

forfeited habeas defense when extraordinary circumstances so warrant.” 132 S. Ct. at 1833 (emphasis added). 

No extraordinary circumstances justify the Veterans 

Court’s regular practice of raising the question of whether 

a veteran’s appeal was timely filed. In Bove, the Veterans 

Court concluded that sua sponte consideration of the 

timeliness issue in every appeal submitted outside the 

120-day filing period is required because “hold[ing] that 

the Secretary could affirmatively or by forfeiture waive 

the 120-day filing period would cede some control of the 

Court’s docket to the Secretary and permit arbitrary 

selection of which veteran’s late filing he finds worthy of 

waiver, a process devoid of consistency, procedural regularity, and effective judicial review.” Bove, 25 Vet. App. at 

141.* The Veterans Court, however, provided no factual 

* The Veterans Court also stated that the goal of 

promoting “judicial efficiency” justified requiring its clerk 

of court to screen all appeals for timeliness. Bove, 25 Vet. 

 
CHECO v. SHINSEKI 5

support for its rather far-fetched contention that the 

Secretary might attempt to gain “control” over its docket. 

Nor could the court cite to a single instance in which the 

Secretary made an “arbitrary” decision to forego reliance 

on a timeliness defense in order to defend an appeal on 

the merits. To the contrary, the Secretary typically has 

every incentive to promptly raise a statute of limitations 

defense given that it can frequently provide an expeditious means of resolving an appeal. See Eberhart v. 

United States, 546 U.S. 12, 18 (2005) (noting that “the 

Government is unlikely to miss timeliness defects very 

often”). In the rare instances in which the Secretary 

elects not to pursue a statute of limitations defense—or 

simply inadvertently fails to raise it—there is no reason 

that the defense should not be deemed waived. See Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (“[A] claimprocessing rule . . . can . . . be forfeited if the party asserting the rule waits too long to raise the point.”).

The Veterans Court’s practice of sua sponte addressing the timeliness issue is particularly troubling given 

that the court functions as part of a uniquely pro-claimant 

adjudicatory scheme. See Henderson, 131 S. Ct. at 1205 

(“The solicitude of Congress for veterans is of long standApp. at 142. The court failed to cite any evidence, however, that requiring its clerk to raise the timeliness issue—

as opposed to allowing the Secretary to raise it—would 

significantly expedite the processing of appeals. Even 

more fundamentally, “[a]ny interest that a court generally 

possesses in the enforcement of a statute of limitations 

defense . . . ordinarily falls short of that necessary to 

outweigh the benefits derived from adhering to the adversarial process, and requiring that a defendant either raise 

the defense of statute of limitations or waive its protection.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th 

Cir. 2006) (footnote omitted). 

 
6 CHECO v. SHINSEKI

ing. And that solicitude is plainly reflected in the [Veterans’ Judicial Review Act], as well as in subsequent laws 

that place a thumb on the scale in the veteran’s favor in 

the course of administrative and judicial review of VA 

decisions.” (citations and internal quotation marks omitted)). “[I]t was for the purpose of ensuring that veterans 

were treated fairly by the government and to see that all 

veterans entitled to benefits received them that Congress 

provided for judicial review.” Barrett v. Nicholson, 466 

F.3d 1038, 1044 (Fed. Cir. 2006). The Veterans Court’s 

practice of routinely raising an affirmative defense on 

behalf of the Secretary is wholly out of place in an adjudicatory system intended by Congress to be “unusually 

protective of claimants.” Henderson, 131 S. Ct. at 1204 

(citations and internal quotation marks omitted). 

Many veterans who seek redress from the Veterans 

Court suffer from significant service-connected physical 

and psychiatric disabilities. See Dixon v. Shinseki, 741 

F.3d 1367, 1376 (Fed. Cir. 2014). Such veterans, moreover, are often unrepresented when they file their notices 

of appeal. See id. The Secretary, by contrast, is represented by a regiment of skilled and experienced attorneys. 

Given that the Secretary generally has a clear advantage—in terms of resources and experience—it defies 

understanding why the Veterans Court believes it necessary to routinely raise the timeliness defense on his

behalf. See Greenlaw, 554 U.S. at 244 (“Counsel almost 

always know a great deal more about their cases than we 

do, and this must be particularly true of counsel for the 

United States, the richest, most powerful, and best represented litigant to appear before us.” (citations and internal quotation marks omitted)).

“The rule that points not argued will not be considered is more than just a prudential rule of convenience; its 

observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.” United States v. Burke, 504 U.S. 229, 246 
CHECO v. SHINSEKI 7

(1992) (Scalia, J., concurring in the judgment). Before 

1988, veterans who were denied disability compensation 

generally had no recourse to the courts. See H.R. Rep. No. 

100-963, at 26 (1988), reprinted in 1988 U.S.C.C.A.N. 

5782, 5808. The goal of Congress in creating the Veterans 

Court was to provide review by a tribunal “independent” 

of the VA. Id. This objective is frustrated when the 

Veterans Court steps into the shoes of the Secretary and 

routinely raises an affirmative defense on his behalf.