N0'I‘E: ThiS order is nonprecedential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(

