Kelley v. Dept. Of Veterans Affairs

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit FRANK D. KELLEY, Claimant-Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Responden,t-Appellee. § 2010-7049 Appea1 from the United States Court of Appeals for Veterans Claims in case no. 06-2B61, Judge Mary J. Sch0e1en. ON MOTION Before RADER, Chief Judge, LOUR1E and 0’MALLEY, Cir- ault Judges. RADER, Chief Judge. 0 R D E R The Sec1'etary of Veterans Affairs moves without op- position to vacate the judgment of the United States KELLEY 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’ Appea1s mailed its decision in his case. That court dismissed the appeal as u11timely, 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 Court’s review of our decision in Henders0n v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc) (affirrning 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. Hem:lerson, 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 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 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 l‘lAY 2 5 2011 Date cc: Peter J. Sebekos, Esq. Elizabeth M. Hosford, Esq. S KELLEY v. DvA FOR THE COURT /s/ J an Horbaly J an Horbaly C1erk HAY 25 2011 Issued As A Mandate: g FE LED s.s. cover or m>PEALs FOR mr FEnERAL consult nms 2011 .|AN HDRBA.LY 0LEI£