Opinion
No. 2006-7307.
June 5, 2007.
Appeal from the United States Court of Appeals for Veterans Claims.
Mark R. Lippman, The Veterans Law Group, La Jolla, CA, for Claimant-Appellant.
Phyllis Jo Baunach, David M. Cohen, Franklin E. White, Department of Justice, David J. Barrans, Y. Ken Lee, Department of Veterans Affairs, Washington, DC, for Respondent-Appellee.
Before SCHALL, GAJARSA, and LINN, Circuit Judges.
ON MOTION
ORDER
Bobby R. Jones moves without opposition to vacate the final judgment of the United States Court of Appeals for Veterans Claims in Jones v. Nicholson, 20 Vet. App. 97 (Vet. App. 2006), and remand for reconsideration in light of our decision in Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006).
Jones filed an untimely appeal with the Court of Appeals for Veterans Claims. The court dismissed his appeal for lack of jurisdiction, stating that he failed to establish entitlement to equitable tolling of the 120-day period. The court rejected Jones' argument that the Secretary had a duty to assist him in developing evidence relevant to the issue of equitable tolling.
In Barrett, this court held that when a veteran alleges facts to show entitlement to equitable tolling, and jurisdiction is called into question, the government must assist the court by providing and, where necessary, procuring further evidence helpful in deciding jurisdiction. Barrett, 466 F.3d at 1044.
Because the Court of Appeals for Veterans Claims rejected the assistance endorsed by this court in Barrett, we vacate the court's judgment and remand the case for reconsideration in light of Barrett.
Accordingly,
IT IS ORDERED THAT:
(1)The motion is granted.
(2)All sides shall bear their own costs.