Newberry v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This order is n0nprecedential.
United States Court of A11peaIs
for the FederaI Circuit
THOMAS E. NEWBERRY,
Claimant-Appellant, -
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
2011-7042
Appea1 from the United States Court of Appea1s for
Veterar1s C1aims in case no. 10-2010, Chief Judge Bruce
E. Kasold.
ON MOTION
Before GAJARSA, MAYER, and PROST, C'ircuit Judges.
GAJARSA, Circuit JucZge.
ORDER
Thomas E. NeWberry moves without opposition for re-
consideration of this c0urt's order dismissing his appeal
for failure to file a brief, to vacate the judgment of the
NEWBERRY V. DVA 2
United States Court of Appeals for Veterans Claims, and
to remand for further proceedings in light of the United
States Supreme Court’s decision in Henderson ex rel.
Henders0n v. Shinseki, 131 S.Ct. 1197 (U.S.,2011).
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. The
Court of Appeals for Veterans Claims dismissed the
appellant’s appeal as untimely, concluding that there is
no equitable tolling exception to the 120-day judicial
appeal period established by 38 U.S.C. § 7266(a) for
appealing Board of Veterans’ Appea1s decisions
ln Henderson, the Supre-me Court reversed this
court’s decision in Hen,derson, 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 Appeals for
Veterans Claims does not have jurisdictional conse-
quences. We reinstate NeWberry’s appeal, vacate the
Court of Appeals for Veterans Claims’ judgment, and
remand for further proceedings
Accordingly,
IT ls OR1)ERED THA'1‘:
(1) The motion for reconsideration is granted. The
mandate is recalled, this court’s dismissal order is va-
cated, and the case is reinstated.
(2) The motion to remand is granted The judgment
is vacated and the case is remanded for further proceed~
1ngs.
(3) All sides shall bear their own costS.
3
NEWBERRY v. DvA
FoR THE CoURT
"AY 2 1 /s/ Jan Horbaly
Date J an Horbaly
C1erk
cc: LaWrence T. Kass, Esq.
S
Lauren S. Moore, Esq.
Issued As A Mandate: 2 7
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