Young v. Dept. Of Veterans Affairs , 423 F. App'x 975 ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
KENNETH L. YOUNG,
Claiman,t~Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, `
Respondent-Appellee.
2010-7058
Appeal from the United States C0urt of Appea1s for
Veterans C1aims in case n0. 09-3216, Judge Frank Q.
Nebeker.
ON MOTION
Before R.ADER, Chief Judge, LOUR1E and O'MALLEY,
Circuit Juclges.
PER CUR1A_M.
0 R D E R
YOUNG V. DVA 2
The Secretary of Veterans Affairs moves to vacate the
judgment of the United States Court of Appeals for Veter-
ans 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. Shin,seki, 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 to1ling). 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 ls OR1)ERED THAT:
(1) The motion is granted The judgment is vacated
and the case is remanded for further proceedings
(2) Al1 sides shall bear their own costs.
3
11AY 25 2011
Date
cc: Kenneth L. Young
Joseph A. Pixley, Esq.
s20
YOUNG v. DVA
FoR THE CoURT
/s/ J an Horb aly
J an Horbaly
Clerk
Issued As A Mandate: 2 5
l.S. FUR
THE FE'BERAl. ClRCUH
1‘1A1 25 2011
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