Jones v. Nicholson

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit
2006-7307

BOBBY R. JONES,

Claimant-Appellant,

v.

R. JAMES NICHOLSON,
Secretary of Veterans Affairs,

Respondent-Appellee.

ON MOTION

Before SCHALL, GAJARSA, and LINN, Circuit Judges.

LINN, Circuit Judge.

ORDER

Bobby R. Jones moves without opposition to vacate the final judgment of the

United States Court of Appeals for Veterans Claims in Jones v. Nicholson, No. 03-1996

(Vet.App. June 9, 2006), and remand for reconsideration in light of our decision in

Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006).

Jones filed an untimely appeal with the Court of Appeals for Veterans Claims.

The court dismissed his appeal for lack of jurisdiction, stating that he failed to establish

entitlement to equitable tolling of the 120-day period. The court rejected Jones’

argument that the Secretary had a duty to assist him in developing evidence relevant to

the issue of equitable tolling.

In Barrett, this court held that when a veteran alleges facts to show entitlement to

equitable tolling, and jurisdiction is called into question, the government must assist the
court by providing and, where necessary, procuring further evidence helpful in deciding

jurisdiction. Barrett, 466 F.3d at 1044.

Because the Court of Appeals for Veterans Claims rejected the assistance

endorsed by this court in Barrett, we vacate the court’s judgment and remand the case

for reconsideration in light of Barrett.

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted.

(2) All sides shall bear their own costs.

FOR THE COURT

June 5, 2007 /s/ Richard Linn
Date Richard Linn
Circuit Judge

cc: Mark R. Lippman, Esq.
Phyllis Jo Baunach, Esq.

s19

ISSUED AS A MANDATE: June 5, 2007

2006-7307
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