Halseth v. Dept. Of Veterans Affairs , 421 F. App'x 962 ( 2011 )

NOTE: This order is n0nprecedential.
United States Court of AppeaIs
for the Federal Circuit
ALLAN G. HALSETH,
Claiman,t-Appellcmt,
V.
ERIC K. SI'IINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
0
2009-7048
Appea1 from the United States C0urt of Appea1s for
Veterans C1aims in 05-3646, Judge R0bert N. Davis.
ON MOTION
Before RADER, Ch,ief Judge, LOUR1E and O’MALLEY, Crlr-
cuit Ju,dges.
RADER, Chief Judge.
0 R D E R
The Secretary of Veterans Affairs moves to vacate the
judgment of the United States C0urt of Appea1s for Veter-
ams C1aims and to remand for further pr0ceedings.
I'lALSETH V. DVA 2
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. §
7 266(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) (affirn1ing Court of Appea1s for Vet-
erans Claims determination that period to appeal to that
court is not subject to equitable tolling). In Henderson ex
rel. Hen,derson v. S/tinseki, 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 ls ORnERE:o 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.
la
3
HALSETH V. DVA
FOR THE CoURT
1‘1AY 25 2011
lsi J an Horbal__v
Date J an Horbaly
Clerk
cc: Martin V. Totaro, Esq.
S
Jane W. Vanneman, Esq.
Issued As A Mandate: MA¥ 2 5 201
FILED
l.s. con oF meals FoR
ms F§1i§RAL_czRcun
|‘1AY 25 2011
.I_N||I)lB\l¥
Il.Bl