Toomer v. Dept. Of Veterans Affairs , 424 F. App'x 953 ( 2011 )


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  • N0'I‘E: ThiS order is nonprecedential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