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N0'I‘E: ThiS order is nonprecedential United States Court of AppeaIs for the Federal Circuit HARVEST O. TOOMER, Claimant-Appellant, V. ERIC K. SI'IINSEKI, SECRETARY OF VETERANS AFFAIRS, ` Respondent-Appellee. 2010-712O Appeal from the United States Court of Appea1s for Veterans Clain1s in case no. 09-4086, Judge Rona1d M. H01daWay. ON MOTION Before RA1)ER, Chief Judge, LOUR1E and O'MALLEY, Circuit Judges. PER CUR1AM. 0 R D E R The Secretary of Veterans Affairs moves without op- position to vacate the judgment of the United States TOOMER 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 c0urt‘s 1'evie'w. This court stayed the briefing schedule in this appeal pending the United States Supren1e Court’s review of our decision in Hen,clerson u. Shinseki,
589 F.3d 1201(Fed. Cir. 2009) (en banc) (affirming Court of Appeals for Vet- erans C1aims determination that period to appeal to that court is not subject to equitable tolling). In Henderson ex rel. Henders0n 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 According1y, IT ls 0RDERED 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 mw 25 2011 cc: Harvest O. Toomer Tara K. Hogan, Esq. s20 TOOMER V. DVA FoR THE CoURT /s/ J an Horbaly Clerk Issued As A Mandate: HAY 2:5 2011 Date J an Horba1y Fll.ED v.s. con mEF§t€§t'tEtt%F°“ NAY 25 2011 ~.IAN HDRBALY CLEll(
Document Info
Docket Number: 2010-7120
Citation Numbers: 424 F. App'x 953
Judges: Lourie, O'Malley, Rader
Filed Date: 5/25/2011
Precedential Status: Non-Precedential
Modified Date: 8/3/2023