Walsh v. Dept. Of Veterans Affairs

NOTE: This order is 110nprecedentia1. United States Court of AppeaIs for the FederaI Circuit ROBERT A. WALSH, Cla1Lman,t-Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Respondent-Appellee. 2009-7143 Appea1 from the United States C0urt of Appea1s for Veterans Claims in 07-3548, Judge William A. Moorman. ON MOTION Before RADER, Chief Judge, LOUR1E and O'MALLEY, Circuit Judges. PER CURLA_M. 0 R D E R The Secretary of Veterans Affairs moves to vacate the judgment of the United States Court of Appea1s for Veter- ams C1aims and to remand for further proceedingS. WALSH V. DVA 2 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 untirnely, 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 tol1ing). In Henders0n ex rel. Henderson u. 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 Appea1s 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 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 WALSH V. DVA FoR THE CoUR'r 2 5 /s/ Jan Horbal__v Date J an Horbaly Clerk cc: Robert A. Walsh Tara K. Hogan, Esq. s2O Issued As A Mandate: j j hAY 25 men U»3. UUURT THE FEDF:g |‘1Al 2 5 2011 .|ANI'DRBAl! €I.ElI£