
    Thomas E. NEWBERRY, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
    No. 2011-7042.
    United States Court of Appeals, Federal Circuit.
    May 27, 2011.
    Thomas E. Newberry, Fort Payne, AL, pro se.
    Before GAJARSA, MAYER, and PROST, Circuit Judges.
   ORDER

ON MOTION

GAJARSA, Circuit Judge.

Thomas E. Newberry moves without opposition for reconsideration of this court’s order dismissing his appeal for failure to file a brief, to vacate the judgment of the United States Court of Appeals for Veterans Claims, and to remand for further proceedings in light of the United States Supreme Court’s decision in Henderson ex rel. Henderson v. Shinseki, — U.S.-, 131 S.Ct. 1197, 179 L.Ed.2d 159 (U.S.,2011).

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. The Court of Appeals for Veterans Claims dismissed the appellant’s appeal as untimely, concluding that there is no equitable tolling exception to the 120-day judicial appeal period established by 38 U.S.C. § 7266(a) for appealing Board of Veterans’ Appeals decisions.

In Henderson, the Supreme Court reversed this court’s decision in Henderson v. Shinseki, 589 F.3d 1201 (Fed.Cir.2009) (en banc), concluding that the 120-day deadline for filing an appeal with the Court of Appeals for Veterans Claims does not have jurisdictional consequences. We reinstate Newberry’s appeal, vacate the Court of Appeals for Veterans Claims’ judgment, and remand for further proceedings.

Accordingly,

It Is Ordered That:

(1) The motion for reconsideration is granted. The mandate is recalled, this court’s dismissal order is vacated, and the case is reinstated.

(2) The motion to remand is granted. The judgment is vacated and the case is remanded for further proceedings.

(3) All sides shall bear their own costs.  