Palmer v. Dept. Of Veterans Affairs ( 2011 )

NOTE: ThiS order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
LAWRENCE E. PALMER,
Claiman,t-Appellcmt, ~
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, ``
Respondent~Appellee.
2010-7054
Appeal from the United States C0urt of Appea1s for
Veterans C1aims in case n0. 06-952, Judge Alan G. Lance,
Sr.
ON MOTION
Bef0re RADER, Chief Judge, LOURIE and O’MALLEY, Cir-
wit Ju,dges.
RADER, Chief Judge.
0 R D E R
The Secretai'y of Veterans Aff``airs moves without op-
position t0 vacate the judgment of the United States
PALMER 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 B0ard of
Veterans’ Appeals mailed its decision in his case. That
court dismissed the appeal as unti1nely, 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 revie'w.
This court stayed the briefing schedule in this appeal
pending the United States Supreme Court’s review of our
decision in Henderson v. Shinseki, 589 F.3d 1201 (Fed.
Cir. 2009) (en bane) (affirming Court of Appeals for Vet-
erans Claims determination that period to appeal to that
court is not subject to equitable tolling). In Henders0n, ex
rel. Henderson o. Shinseki, 131 S.Ct. 1197 (``20'11), 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 ls 0RDERED 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 2 5 2011
Date
cci William E. Doyle, Jr., Esq.
Ellen M. Lynch, Esq.
s2(}
PALMER v. DvA
FoR THE CoURT
/s/ J an Horb aly
J an Horbaly
Clerk
Issued As A Mandate: "AY 2 5 so
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me FEn£nAz_ macon
r1AY 35 2011
3ANl'l0RBALY
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