Thomas E. Newberry v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

THOMAS E. NEWBERRY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7042

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-2010, Chief Judge Bruce
E. Kasold.

ON MOTION

Before GAJARSA, MAYER, and PROST, Circuit Judges.
GAJARSA, Circuit Judge.

ORDER

Thomas E. Newberry moves without opposition for re-
consideration of this court's order dismissing his appeal
for failure to file a brief, to vacate the judgment of the

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United States Court of Appeals for Veterans Claims, and
to remand for further proceedings in light of the United
States Supreme Court's decision in Henderson ex rel.
Henderson v. Shinseki, 131 S.Ct. 1197 (U.S.,2011).

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. The
Court of Appeals for Veterans Claims dismissed the
appellant's appeal as untimely, concluding that there is
no equitable tolling exception to the 120-day judicial
appeal period established by 38 U.S.C. § 7266(a) for
appealing Board of Veterans' Appeals decisions.

In Henderson, the Supreme Court reversed this
court's decision in Henderson v. Shinseki, 589 F.3d 1201
(Fed. Cir. 2009) (en banc), concluding that the 120-day
deadline for filing an appeal with the Court of Appeals for
Veterans Claims does not have jurisdictional conse-
quences. We reinstate Newberry's appeal, vacate the
Court of Appeals for Veterans Claims' judgment, and
remand for further proceedings.

Accordingly,

IT IS ORDERED THAT:

(1) The motion for reconsideration is granted. The
mandate is recalled, this court's dismissal order is va-
cated, and the case is reinstated.

(2) The motion to remand is granted. The judgment
is vacated and the case is remanded for further proceed-
ings.

(3) All sides shall bear their own costs.

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MAY 2 7 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Lawrence T. Kass, Esq. Lauren S. Moore, Esq.

s20

Issued As A Mandate:

MAY 2 7 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 2 7 2011
JAN HORBALY
CLERK