Henry v. Dept. Of Veterans Affairs

NOTE: This order is nonpreceden1;ia1. United States Court of Appeals for the FederaI Circuit LYNETTE M. HENRY, Claimcznt-Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Responden,t-Appellee. 2009-711 1 Appeal from the United States Cour1; of Appea1s for Vete1'a11S C1aimS in 07-O782, J11dge R0na1d M. H01daWay. ON MOTION Before RA_DER, Chief Judge, LOUR1E and 0'MALLEY, Circuit Judges. PER CUR1AM. 0 R D E R The Secreta1'y of Veterans Affairs moves without op- position to vacate the judgment of the United States HENRY 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 C1aims more than 120 days after the Board of Veterans’ Appeals mailed its decision in her case. That court dismissed the appeal as untime1y, 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 C0urt’s review of our decision in Hen.ders0n v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc) (affirming Court of Appeals for Vet- erans Claims determination that period to appeal to that court is not subject to equitable tolling). 111 Henders0n ex rel. Hen.derson L). 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 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 l‘1AY 2 5 2011 Date cc: Lynette M. Henry s20 Issued As A l\/landate: 1 Joseph A. Pixley, Esq. HAY 25 HENaY v. DvA FoR THE CoURT /s/ J an Horbaly J an Horbaly Clerk 2011 F H.s. count ms FEnERAL clRcurr HAY 25-2011 ma imRe\Lv cum