Rasheed v. Dept. Of Veterans Affairs ( 2011 )

NO'l‘E: This order is nonprecedential
United States Court of Appeals
~ for the FederaI Circuit
AQUEL RASHEED,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, "
Respondent-Appellee.
2010-7087 ~
‘ Appea1 from the United States Court of Appea1s for
Veterans C1aimS in case no. 09-3758, Judge R0nald M.
4 Ho1daway.
ON MOTION
Before RADER, Chief Ju,dge, LOURIE and O’MALLEY, Cir-
unit Judges.
RADER, Chief Judge.
0 R D E R
The Secretary of Veterans Ai``fairs moves without op-
position to vacate the judgment of the United States
RASHEED 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 Henderson v. Shinseki, 589 F.3d 1201 (Fed.
Cir. 2009) (en hanc)) (affirming Court of Appeals for
Veterans Claims determination that period-to appeal to
that court is not subject to equitable tolling). In Hender-
son ex rel. Henderson v. Shinseki, 131 S.Ct. 1197 (201l),
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 Because the Court of
Appeals 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 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.
-1-_~ 1 - _---_--- - -----
3
HAY 25 2011
Date
RAsHEED v. 1)vA
FoR THE CoURT
/sf J an Horbaly
J an Horbaly
Clerk
cc: Michael D. J. Eisenberg, Esq.
Meredyth Cohen Havasy, Esq.
s2O
Issued As A Mandate:
|‘1AY 25 2011
F
s.s. c0uHBg)l'§l')PEALs FOR
'rH_E ns RAL centum
nAYs25 2011
.|ANHORBAL¥
C|.ElI(