Smith v. Dept. Of Veterans Affairs

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit DAVID A. SMITH, Claimant-Appellcmt, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Respondent-Appellee. 2010-7001 Appeal from the United States Court of Appea1s for Veterans Claims in 09-{)146, Judge Alan G. Lance, Sr. ON MOTION Bef0re RADER, Chief Juclge, LOURIE and O’MALLEY, Cir- wit Judges. RADER, Chief Ju,dge. 0 R D E R The Secretary of Veterans Affairs moves without op- position to vacate the judgment of the United Statee SMITH 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 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). ln Henders0n ex rel. Henderson v. Sht`nseki, 131 S.Ct. 1197 C2011), 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 Is 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 HAY 25 2011 Date cc: EdWard R. Reines., Esq. Tara K. Hogan, Esq. s20 Issued As A l\/[andate: sM1'rH v. DvA FoR THE CoURT /s/ J an Horbaly J an Horbaly Clerk HAY 25 2011 FE LED v.s. count or APPEALs F0 ms FEo€RAL macon |‘1AY 25 2011 .|AN1B)RBAL¥ C|.ElI£ R