Young v. Dept. Of Veterans Affairs

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit KENNETH L. YOUNG, Claiman,t~Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Respondent-Appellee. 2010-7058 Appeal from the United States C0urt of Appea1s for Veterans C1aims in case n0. 09-3216, Judge Frank Q. Nebeker. ON MOTION Before R.ADER, Chief Judge, LOUR1E and O'MALLEY, Circuit Juclges. PER CUR1A_M. 0 R D E R YOUNG V. DVA 2 The Secretary of Veterans Affairs moves to vacate the judgment of the United States Court of Appeals for Veter- ans 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 Henderson v. Shin,seki, 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 to1ling). 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 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 OR1)ERED THAT: (1) The motion is granted The judgment is vacated and the case is remanded for further proceedings (2) Al1 sides shall bear their own costs. 3 11AY 25 2011 Date cc: Kenneth L. Young Joseph A. Pixley, Esq. s20 YOUNG v. DVA FoR THE CoURT /s/ J an Horb aly J an Horbaly Clerk Issued As A Mandate: 2 5 l.S. FUR THE FE'BERAl. ClRCUH 1‘1A1 25 2011 .W|l10@A|¥ dill