Tyrues v. Dept. Of Veterans Affairs , 467 F. App'x 889 ( 2012 )

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LARRY G. TYRUES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7011
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 04-584, Judge William A.
Moorman.
__________________________
ORDER
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
RADER, Chief Judge.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) dismissed Larry J. Tyrues’s
appeal from the Board of Veterans Appeals (“Board”) for
lack of jurisdiction. Tyrues v. Shinseki, 23 Vet. App. 166,
177 (2009). This Court affirmed, reasoning the Veterans
Court correctly interpreted 38 U.S.C. § 7266 to require an
TYRUES v. DVA 2
appeal within 120 days. The Supreme Court of the
United States vacated this court’s judgment and remand-
ing for further proceedings in light of Henderson v. Shin-
seki, 131 S.Ct. 1197 (2011). See Tyrues v. Shinseki, 132
S.Ct. 75 (2011). Accordingly, this court reinstated the
appeal.
In Henderson, the Supreme Court reversed this
court’s decision and concluded that the 120–day deadline
for filing an appeal with the Court of Appeals for Veterans
Claims does not have jurisdictional consequences. Be-
cause the Veterans Court erroneously treated the appeal
deadline as jurisdictional, we vacate the Veterans Court's
judgment and remand for further proceedings to deter-
mine whether the non-jurisdictional nature of the 120-day
deadline should lead to a different result.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment is vacated and the case is remanded
for further proceedings.
(2) Each side shall bear its own costs.
FOR THE COURT
April 12, 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Mark R. Lippman, Esq.
Martin F. Hockey, Jr., Esq.