Lazerano v. Dept. Of Veterans Affairs , 421 F. App'x 968 ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
JOSEPHINE LAZERANO,
Claiman.t-Appellant, '
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Responclent-Appellee.
2009-7133
Appea1 from the United States Court of Appea1s for
Veterans Claims in 08-3886, Judge Lawrence B. Hage1.
ON MOTION
Before RADER, Chief Judge, LOURIE and O'MALLEY,
Circuit Judges.
PER CURLA_M.
0 R D E R
The Secretary of Veterans Affairs moves without op-
position to vacate the judgment of the United States
LAZERANO 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 her case. That
court dismissed the appeal as untime1y, 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 Hen,c_1ers0n ex
rel. Hen,ders0n v. Shinseki, 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 jurisdicti0nal,
we vacate the Court of Appea1s 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.
3
LAzE1iANo v. nm
FoR THE CoURT
MAY 25 /s/ Jan Horbaly
J an Horbaly
Clerk
Date
cc: Josephine Lazerano
s20
Kenneth S. Kessler, Esq.
HAY 2 5 2011
lssued As A Mandate: ssss n _
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