NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
FRANK D. KELLEY,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Responden,t-Appellee.
§
2010-7049
Appea1 from the United States Court of Appeals for
Veterans Claims in case no. 06-2B61, Judge Mary J.
Sch0e1en.
ON MOTION
Before RADER, Chief Judge, LOUR1E and 0’MALLEY, Cir-
ault Judges.
RADER, Chief Judge.
0 R D E R
The Sec1'etary of Veterans Affairs moves without op-
position to vacate the judgment of the United States

KELLEY 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’ Appea1s mailed its decision in his case. That
court dismissed the appeal as u11timely, 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 revie`w.
This court stayed the briefing schedule in this appeal
pending the United States Supreme Court’s review of our
decision in Henders0n v. Shinseki, 589 F.3d 1201 (Fed.
Cir. 2009) (en banc) (affirrning Court of Appeals for Vet-
erans Claims determination that period to appeal to that
court is not subject to equitable tolling). In Henderson ex
rel. Hem:lerson, 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 ORDERED 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
l‘lAY 2 5 2011
Date
cc: Peter J. Sebekos, Esq.
Elizabeth M. Hosford, Esq.
S
KELLEY v. DvA
FOR THE COURT
/s/ J an Horbaly
J an Horbaly
C1erk
HAY 25 2011
Issued As A Mandate:  g
FE LED
s.s. cover or m>PEALs FOR
mr FEnERAL consult
nms 2011
.|AN HDRBA.LY
0LEI£

