Alexander v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This order is n0nprecedentia1.
United States Court of Appeals
for the FederaI Circuit
MICHAEL ALEXANDER,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, '
Resp0ndent-Appellee. '
2010-7035 _
Appea1 from the United States C0urt of Appea1s for
Veterans C1aims in case n0. 08-2482, Judge R0nald M.
HOIdaWay.
ON MOTION
Be-fore RA1)ER, Chief Ju,dge, L0UR1E and PROST, Circu£t
Judges.
RADER, Chief Judge.
0 R D E R
The Secretary of Veterans Affairs and Michae1 A1ex-
ander move to vacate the judgment of the United States
ALEX.ANDER V. DVA 2
Court of Appeals for Veterans Claims and to remand for
further proceedings.
The appellant filed a notice of appeal with the C0urt
of Veterans Clairns more than 120 days after the Board of
Veterans’ Appeals mailed its decision in his case. That
court dismissed the appeal as untin1ely, concluding that
the 120-day appeal period established by 38 U.S.C. §
7266(a) for seeking review of B0ard 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.derson v. Shinsekr,``, 589 F.3d 1201 (Fed.
Cir. 2009) (en banc) (aff;``irming Court of Appeals for Vet-
erans Claims determination that period to appeal to that
court is not subject to equitable tolling). In Henderson ex
rel. Henderson v. Shinseki, 131 S.Ct. 1197 {2011), the
Supreme Court reversed this court’s decision and con-
cluded that the 120-day deadline for filing an appeal with
the Court of Appea1s 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,
I'1‘ ls 0RDERED THAT:
(1) The motions are granted The judgment is va-
cated and the case is remanded for further proceedings
(2) All sides shall bear their own costs.
3
ALEXANDER V. DVA
FoR THE CoURr
MA¥ 2 5 /s/ J an Horbal_v
Date J an Horbaly
cc: Christopher R. Liro, Esq.
Shelly D. Weger, Esq.
s20
Clerk
mw 25 2011 1
Issued As A Mandate: _g______ jj 1
FlI.ED
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HAY 25 2011
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