Veterans justice just took another hit on January 4th. Cerise Checo, a young lady with a mobile zip code, was informed that her legal help was amateurish and she was being denied her right to appeal to the CAVC due to being time-challenged.

Let’s see what she did wrong.  You don’t have to be specific as you do on a Form 9 regarding why you feel your denial was unjust. Check. If you’re homeless you should be accorded some considerations  above and beyond other folks. Check. You should obtain good legal help when you go to the Court seeking redress. Check. The law says you have to file your Notice of Appeal within 120 sunrises and sunsets after the BVA decision. Checkmate.

Cerise violated that one premise after she missed her NOA cutoff date. Her choice of legal help was off kilter or something is extremely amiss. The gentleman, Mark R. Lippman, Esq., made some crucial errors during his oral presentation. When you present your legal arguments to the Court, you don’t “guess” anything. You’re a lawyer. There is no guesswork. Either Cerise’ homelessness was was the causative factor or it wasn’t…

When asked, however, whether he could show that Ms. Checo’s homelessness directly caused the untimely filing, Ms. Checo’s counsel responded, “I guess not.”

Checo v. Shinseki (2013)

It appears the Court was sitting there with parted lips and bated breath just awaiting a statement From Mark that were it not for the wobbly wheel on Cerise’ shopping cart, she would have made it to the Post Office with time to spare. Being homeless is bound to tug at the heartstrings and I have no doubt she had a leg up at the Court already with this. However, if you don’t give your leagle beagle sufficient information or excuses, things can go horribly awry as they did here. I find it almost impossible to believe that Mr. Lippman, who has eighteen years of experience, could step on his necktie in front of Judges Hagel, Lance and Schoelen. The only other explanation would be what happened to me when I met my DAV rep (an hour late) at the Seattle VARO about ten minutes before showtime.

Unlike attorneys, VSOs have certificates of attendance proving they were present and accounted for at a CFR symposium. There is no test afterwards to see how well you assimilated the knowledge.   Since attorneys are not in the same class as VSOs and actually are schooled in the art of law, this predicament rarely occurs. In fact, Ms. Checo was nowhere near 625 Wagonburner Lane NW for this hearing. More’s the pity. Perhaps she could have illuminated everyone on the untimely filing.  Knowing how professional Mr. Lippman is, there has to be another logical explanation for how one could appear before the Court utterly unprepared and bereft of excuses to proffer for Cerise’ inexcusable lack of timeliness.

That Ms. Checo’s counsel misunderstood the Secretary’s response matters not. Even when given the opportunity at oral argument, he did not explain how Ms. Checo’s homelessness directly caused her to file her Notice of Appeal 33 days late. As Ms. Checo’s counsel conceded at oral argument, the burden of meeting the requirements of McCreary lies with Ms. Checo. See McCreary, 19 Vet.App. at 332. Again, the Court emphasizes that Ms. Checo failed to provide any facts to support a finding of direct causation between her homelessness and her failure to file her Notice of Appeal within the 120-day judicial appeal period. Thus, the Court concludes, on the facts before it (or, perhaps more accurately, on the lack of facts before it), that Ms. Checo has not carried her burden.

Checo supra

I suspect Mr. Lippman agreed to take this case because he felt compassion for her.  Hell, who wouldn’t? I also suspect that by being homeless, Cerise was extremely hard to get in touch with. It may be that Old Mark beat feet from sunny Cal. to D.C.  as a stopgap measure without any input from her assuming his legal staff would forward it to him there.  On arrival, he had no ammo to fight with and found himself powerless to defend her tardiness. Regardless, this has caused him to lose face- something he can ill afford. Your name is your stock in trade in this business. No self-respecting law dog wants to be painted as a buffoon- and most certainly not before the Court.

The Court issued this as an order. It is not an opinion as there was no decision on the merits of her claim. The order was simply a legal device to announce their intention not to grant equitable tolling. I feel an important milestone for Veterans was missed. This would have been a giant leap for homeless Vetkind if he (Lippman) had been suitably armed and dangerous.  Gen. Revered Leader was apparently willing to let it slide because trashing homeless Vets at the Court never plays out well on the six o’clock news. I’m sure he told Will Gunn to moonwalk backward faster than Michael Jackson ever did and keep a low profile. VA isn’t doing to well down at the Court of Public Opinion these days. The last time I checked it was Backlog-985,000, VASEC-2015 (maybe).

Ego te absolvo, Mark.