Palmer v. Dept. Of Veterans Affairs

NOTE: ThiS order is nonprecedential United States Court of AppeaIs for the FederaI Circuit LAWRENCE E. PALMER, Claiman,t-Appellcmt, ~ V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Respondent~Appellee. 2010-7054 Appeal from the United States C0urt of Appea1s for Veterans C1aims in case n0. 06-952, Judge Alan G. Lance, Sr. ON MOTION Bef0re RADER, Chief Judge, LOURIE and O’MALLEY, Cir- wit Ju,dges. RADER, Chief Judge. 0 R D E R The Secretai'y of Veterans Aff`airs moves without op- position t0 vacate the judgment of the United States PALMER 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 B0ard of Veterans’ Appeals mailed its decision in his case. That court dismissed the appeal as unti1nely, 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 Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en bane) (affirming Court of Appeals for Vet- erans Claims determination that period to appeal to that court is not subject to equitable tolling). In Henders0n, ex rel. Henderson o. Shinseki, 131 S.Ct. 1197 (`20'11), 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 0RDERED 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 2 5 2011 Date cci William E. Doyle, Jr., Esq. Ellen M. Lynch, Esq. s2(} PALMER v. DvA FoR THE CoURT /s/ J an Horb aly J an Horbaly Clerk Issued As A Mandate: "AY 2 5 so FlLEO ` I.s. count or APPEALs ron me FEn£nAz_ macon r1AY 35 2011 3ANl'l0RBALY CLEH(