Clayton v. Dept. Of Veterans Affairs , 421 F. App'x 964 ( 2011 )

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NOTE: This order is nonprecedential
United States Court of Appeals
for the FederaI Circuit
GRADY A. CLAYTON,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
_ Resp0nden,t-Appellee.
2009-7094
Appea1 from the United States Court of Appea1s for
Veterans Claims in 07-1728, Judge Rona1d M. Ho1daway.
ON MOTION
Before RADER, Chief Judge, LOURIE and O'MALLEY,
Circuit Judges.
PERCURIAM.
0 R D E R
The Secretary of Veterans AfEairs moves without op-
position t0 vacate the judgment of the United States
CLAYTON V. DVA 2
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 Henders0n ex
rel. Henderson v. Shin,seki, 131 S.Ct. 1197 f2011), 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 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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CLAYTON V. DVA
FoR THE CoUR'i'
l‘lAY 2 5 wl /S/ Jan Horba1y
Date J an Horbaly
Clerk
cc: Grady A. Clayton
Kent C. Kiffner, Esq.
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Issued
As A Mandate: 2 5
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