Lazerano v. Dept. Of Veterans Affairs

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit JOSEPHINE LAZERANO, Claiman.t-Appellant, ' V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Responclent-Appellee. 2009-7133 Appea1 from the United States Court of Appea1s for Veterans Claims in 08-3886, Judge Lawrence B. Hage1. ON MOTION Before RADER, Chief Judge, LOURIE and O'MALLEY, Circuit Judges. PER CURLA_M. 0 R D E R The Secretary of Veterans Affairs moves without op- position to vacate the judgment of the United States LAZERANO 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 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 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 banc) (affirming Court of Appeals for Vet- erans Claims determination that period to appeal to that court is not subject to equitable tolling). In Hen,c_1ers0n ex rel. Hen,ders0n v. Shinseki, 131 S.Ct. 1197 f2011), 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 jurisdicti0nal, we vacate the Court of Appea1s 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. 3 LAzE1iANo v. nm FoR THE CoURT MAY 25 /s/ Jan Horbaly J an Horbaly Clerk Date cc: Josephine Lazerano s20 Kenneth S. Kessler, Esq. HAY 2 5 2011 lssued As A Mandate: ssss n _ F I.s. coors 5'FEPPEALs ron ms FEnERAL macon MAY 25lZ0l1 .|ANHDRBN.Y Cl.EHl