Alexander v. Dept. Of Veterans Affairs

NOTE: This order is n0nprecedentia1. United States Court of Appeals for the FederaI Circuit MICHAEL ALEXANDER, Claimant-Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ' Resp0ndent-Appellee. ' 2010-7035 _ Appea1 from the United States C0urt of Appea1s for Veterans C1aims in case n0. 08-2482, Judge R0nald M. HOIdaWay. ON MOTION Be-fore RA1)ER, Chief Ju,dge, L0UR1E and PROST, Circu£t Judges. RADER, Chief Judge. 0 R D E R The Secretary of Veterans Affairs and Michae1 A1ex- ander move to vacate the judgment of the United States ALEX.ANDER V. DVA 2 Court of Appeals for Veterans Claims and to remand for further proceedings. The appellant filed a notice of appeal with the C0urt of Veterans Clairns more than 120 days after the Board of Veterans’ Appeals mailed its decision in his case. That court dismissed the appeal as untin1ely, concluding that the 120-day appeal period established by 38 U.S.C. § 7266(a) for seeking review of B0ard 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.derson v. Shinsekr,`, 589 F.3d 1201 (Fed. Cir. 2009) (en banc) (aff;`irming Court of Appeals for Vet- erans Claims determination that period to appeal to that court is not subject to equitable tolling). In Henderson ex rel. Henderson v. 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, I'1‘ ls 0RDERED THAT: (1) The motions are granted The judgment is va- cated and the case is remanded for further proceedings (2) All sides shall bear their own costs. 3 ALEXANDER V. DVA FoR THE CoURr MA¥ 2 5 /s/ J an Horbal_v Date J an Horbaly cc: Christopher R. Liro, Esq. Shelly D. Weger, Esq. s20 Clerk mw 25 2011 1 Issued As A Mandate: _g______ jj 1 FlI.ED s.s.c0u on ma=§B.-‘?§it*a’it%?.F HAY 25 2011 JAmu)aeALv cum