Smith v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
DAVID A. SMITH,
Claimant-Appellcmt,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, ``
Respondent-Appellee.
2010-7001
Appeal from the United States Court of Appea1s for
Veterans Claims in 09-{)146, Judge Alan G. Lance, Sr.
ON MOTION
Bef0re RADER, Chief Juclge, LOURIE and O’MALLEY, Cir-
wit Judges.
RADER, Chief Ju,dge.
0 R D E R
The Secretary of Veterans Affairs moves without op-
position to vacate the judgment of the United Statee
SMITH V. DVA 2
Court of Appeals for Veterans Claims and to remand for
further proceedings.
The appellant filed a notice of appeal with the Court
of Veterans Claims more than 120 days after the Board of
Veterans’ Appeals mailed its decision in his case. That
court dismissed the appeal as untimely, concluding that
the 120-day appeal period established by 38 U.S.C. §
7266(a) for seeking review of Board of Veterans’ Appeals
decisions is jurisdictional and not subject to equitable
tolling The appellant sought this court's review
This court stayed the briefing schedule in this appeal
pending the United States Supreme Court’s review of our
decision in Hen,ders0n v. Shinseki, 589 F.3d 1201 (Fed.
Cir. 2009) (en banc) (affirming Court of Appeals for Vet-
erans Claims determination that period to appeal to that
court is not subject to equitable tolling). ln Henders0n ex
rel. Henderson v. Sht``nseki, 131 S.Ct. 1197 C2011), the
Supreme Court reversed this court’s decision and con-
cluded that the 120-day deadline for filing an appeal with
the Court of Appeals for Veterans Claims does not have
jurisdictional consequences. Because the Court of Ap-
peals for Veterans Claims erred in concluding that the
appeal deadline established by § 7266(a) is jurisdictional,
we vacate the Court of Appeals for Veterans Claims’
judgment and remand for further proceedings
Accordingly,
IT Is ORDERED THAT:
(1) The motion is granted The judgment is vacated
and the case is remanded for further proceedings.
(2) All sides shall bear their own costs
3
HAY 25 2011
Date
cc: EdWard R. Reines., Esq.
Tara K. Hogan, Esq.
s20
Issued As A l\/[andate:
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FoR THE CoURT
/s/ J an Horbaly
J an Horbaly
Clerk
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