Thompson v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
LAWRENCE E. THOMPSON,
Claimcm,t-Appello:nt, -t
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, 4
Resp0n,dent-Appellee.
2011-7015 ``
Appea1 from the United States Court of Appea1S for
VeteranS C1aims in case n0. 07-2103, Judge Wi1liam A.
M00rman.
oN MoT1oN
Before GAJARSA, Mayer, and PROST, Circuit Judges.
PER CURlAM.
ORDER
The Sec1'etary of Veterans Affairs moves to vacate the
underlying order of the United StateS C0urt of Appea1s for
VeteranS C1aimS and to remand for further proceedings.
‘THOMPSON V. DVA 2
In the Court of Appeals for Veterans claims, Lawrence
E. Thompson filed a motion to recall the mandate and
judgment in a Court of Appeals for Veterans Claims case
in which that court had previously dismissed his appeal
as untimely, concluding that there is no equitable tolling
exception to the 120 day judicial appeal period estab-
lished by 38 U.S.C. § 7266(a) for appealing Board of
Veterans’ Appeals decisions. The Court of Appeals for
Veterans Claims denied his motion to recall the mandate
and judgment In the present appeal, Thompson seeks
this court's review of the order denying his motion to
recall the mandate.
This court stayed the briefing schedule in this appeal
pending the United States Supreme Court’s disposition in
Henders0n ex rel,'. Henclerson o. Shinseki, 131 S.Ct. 1197(U.S.,2011). In its decision the Supreme Court reversed
this court’s decision in Henderson v. Shin,seki, 589 F.3d
1201 (Fed. Cir. 2009) (en banc), concluding that the 120-
day deadline for filing an appeal with the Court of Ap-
peals for Veterans Claims does not have jurisdictional
consequences The Secretary suggests that, in light of the
Supreme Court's ruling, the Court of Appeals for Veterans
Claims should be provided the opportunity to consider
again Thompson's arguments raised in his motion to
recall the mandate and whether they constitute grounds
for tolling the time to appeal from the judgment.
Accordingly,
IT ls ORDERED THAT:
(1) The motion is granted The order denying recall
of the mandate and judgment is vacated and the case is
remanded for further proceedings.
(2) All sides shall bear their own costs.
3
THOMPSON V. DVA
FoR THE CoURT
2 7 /s/ J an H0rbaly
Date J an Horbaly
cc: Lawrence E. Thompson
S
Sarah M. Bienkowksi, Esq.
20
Clerk
Issued As Al\/[andate: , 2 7 ,
.. ieg...i».
.AUE¥ L lRCUlT
l1AY 27 2011
.|Al1|'l0RBAL‘l
CLERK