In Larry’s last episode, he was poised to make the leap, via the Henderson v. Shinseki Supreme Court decision, to overcoming the tolling of what can only be described as a bifurcated claim. Vets have one claim. One original claim. Now introduce a variable- presumptive or direct? Deny on one and remand on one. Seems simple in stick in the dirt powerpoint mode. Now, hold on to your hat. Two inextricably intertwined claims for one original claim can (and did) go in two different directions and failure to tend to both of them as two separate claims with two separate suspense dates was Larry’s downfall.
Okay, can’t they just say Henderson? Equitable tolling. No harm. No Foul. Mr. Tyrues began this pissing match in 1998. He was recently awarded the Order of the Wheel, F.3d Crossed Hamsters with two Oak Leaf clusters so he’s no stranger to this party. Unfortunately, absent certiorari, he’s headed for the showers.Read about it here. I published in April 2012.
Following the cold shoulder at the Court (again), Mr. Tyrues set sail for the Fed circus (again). Rumor had it the Mayor of DC even wanted to charge Larry’s attorney a higher car tab fee for his extensive use of the streets. This was the story in August 2012. Again, I do not see the Veteran-friendly, cozy, warm, Unicorns and Rainbows fuzzy warmth surrounding Larry as he follows his claim stream(s)…PRO SE… until he has lost any chance of salvaging it. Being Pro Se is the ultimate (or used to be) defense when you finally matriculated to the Court. All those bubbleheads filing motions and sending in stuff for you don’t count as true legal help. Thank God for small favors. Except now, the new paradigm emerges. Even a Pro Se chucklehead is supposed to know that time limits in this nonadversarial, veteran friendly ex parte system we enjoy must be adhered to or face the consequence of Extreme Unction. I suppose they leave for another day the consequences of a VSO service officer, rather than a pro se Veteran, failing to file your NOD or Form 9 on time. Oh, wait. They already ruled on that. VSO’s are harmless, hence no foul. They’re kind of like a dog that don’t hunt. They have a nice cold nose, wag their tails a lot and mean well, though.
Larry is now in the unenviable position of Casey at bat in the bottom of the ninth and the third strike has been called. There are no more do overs. There are no more dispensations for Vets-if there ever were. By simply being a Vet, you are now adjudged a non-attorney practitioner by the CAVC and the Feds. You’ll have to file for the 8 1/2 X 11 Glossy certificate with Seal attesting to that fact. The backlog is about two years. They’re very handsome and come with Ric Shinseki’s genuine signature. I expect the VA will shortly be coming out with a Form 21-23 where you attest to your pro se status under penalty of law as well. I also expect the Eform21firstname.lastname@example.org will be next. After you, counselor.