Lawrence E. Thompson v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential.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

LAWRENCE E. THOMPSON,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7015

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 07-2103, Judge William A.
Moorman.

ON MOTION

Before GAJARSA, Mayer, and PROST, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to vacate the
underlying order of the United States Court of Appeals for
Veterans Claims and to remand for further proceedings.

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In the Court of Appeals for Veterans claims, Lawrence
E. Thompson filed a motion to recall the mandate and
judgment in a Court of Appeals for Veterans Claims case
in which that court had previously dismissed his appeal
as untimely, concluding that there is no equitable tolling
exception to the 120 day judicial appeal period estab-
lished by 38 U.S.C. § 7266(a) for appealing Board of
Veterans' Appeals decisions. The Court of Appeals for
Veterans Claims denied his motion to recall the mandate
and judgment. In the present appeal, Thompson seeks
this court's review of the order denying his motion to
recall the mandate.

This court stayed the briefing schedule in this appeal
pending the United States Supreme Court's disposition in
Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197
(U.S.,2011). In its decision 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 Ap-
peals for Veterans Claims does not have jurisdictional
consequences. The Secretary suggests that, in light of the
Supreme Court's ruling, the Court of Appeals for Veterans
Claims should be provided the opportunity to consider
again Thompson's arguments raised in his motion to
recall the mandate and whether they constitute grounds
for tolling the time to appeal from the judgment.

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted. The order denying recall
of the mandate and 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 2 7 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Lawrence E. Thompson
Sarah M. Bienkowksi, Esq.
$20

Issued As A Mandate:

MAY 2 7 2011

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