David A. Smith v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential.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

DAVID A. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2010-7001

Appeal from the United States Court of Appeals for
Veterans Claims in 09-0146, Judge Alan G. Lance, Sr.

## ON MOTION

Before RADER, Chief Judge, LOURIE and O'MALLEY, Cir-
cuit Judges.
RADER, Chief Judge.

ORDER

The Secretary of Veterans Affairs moves without op-
position to vacate the judgment of the United States

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### 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' 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. Shinseki, 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 tolling). 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 IS 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.

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FOR THE COURT

MAY 25 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

Issued As A Mandate:
MAY 25 2011
s20
cc: Edward R. Reines., Esq.
Tara K. Hogan, Esq.

.

FILED
W.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 25 2011

JAN HORBALY
CLERK