Terry Turner v. Shinseki , 526 F. App'x 952 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY M. TURNER,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7051
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-1964, Judge Alan G. Lance Sr.
______________________
Decided: June 10, 2013
______________________
TERRY M. TURNER, of Petersburg, Virginia, pro se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and TODD M. HUGHES, Deputy Director. Of counsel on
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and LARA K. EILHARDT, Attorney, United
2 TERRY TURNER v. SHINSEKI
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
Terry M. Turner (“Turner”) appeals from the decisions
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) that equitable tolling was not war-
ranted in denying his motions, first to recall the mandate
and set aside the judgment and subsequently for recon-
sideration because he did not exercise due diligence in
pursuing his appeal. See Turner v. Shinseki, No. 10-1964
(Vet. App. Nov. 20, 2012) (“Order I”), reconsideration
denied (Vet. App. Dec. 18, 2012) (“Order II”). Because
Turner’s arguments challenge only factual findings and
an application of law to fact, we dismiss for lack of juris-
diction.
BACKGROUND
Turner served on active duty in the United States
Navy from July 1972 to December 1974. In February
1976, a Department of Veterans Affairs (“VA”) Regional
Office (“RO”) determined that Turner had been dis-
charged from service due to willful and persistent miscon-
duct, which is considered a discharge under dishonorable
conditions under 38 C.F.R. § 3.12(d)(4). App. 11. Pursu-
ant to 38 U.S.C. § 101(2), a person discharged under
dishonorable conditions is not a “veteran” for purposes of
entitlement to VA benefits. Turner did not appeal that
decision. Id. at 12.
In February 1992, Turner filed a claim for VA com-
pensation, asserting that he was “insane” at the time that
he committed the misconduct that resulted in his dis-
charge, but the RO determined that he was precluded
TERRY TURNER v. SHINSEKI 3
from eligibility for VA benefits because he was not “in-
sane” when the offenses occurred. Id. at 11.
In July 1996, the Board of Veterans’ Appeals
(“Board”) considered whether Turner had submitted new
and material medical and testimonial evidence sufficient
to reopen the RO’s determination on the character of his
discharge. Id. at 12. The Board held that the character of
the discharge would not be reopened because the 1976 RO
decision became final when Turner did not appeal it and
because, although some of the evidence that Turner
submitted was new, none of it was material. Id. at 17–18.
In August 2009, Turner filed a motion for reconsidera-
tion of the Board’s 1996 decision, alleging obvious error of
fact or law under 38 C.F.R. § 20.1000(a). Id. at 7. That
motion was denied by the Board. Id. at 7–9. In June
2010, Turner filed a Notice of Appeal from that denial in
the Veterans Court, which was dismissed as untimely.
See Order I at 1.
In May 2012, Turner filed a motion in the Veterans
Court to recall its mandate and set aside the court’s
dismissal of his Notice of Appeal. Turner submitted two
letters from his treating psychologist, arguing that he was
unable to timely file a motion to reconsider the Board
decision because of his psychiatric condition. Id. at 1–2;
see Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (estab-
lishing that the filing period for a Notice of Appeal to the
Veterans Court is subject to equitable tolling under 38
U.S.C. § 7266(a), which applies “only when circumstances
preclude[] a timely filing despite the exercise of diligence,
such as [] a mental illness rendering one incapable of
handling one’s own affairs”).
The Veterans Court considered the motion and the
letters, but concluded that equitable tolling was not
warranted. Order I at 3. The court noted that the psy-
chologist had opined that Turner was incapable of ration-
al thought and was unable to handle his own affairs in
4 TERRY TURNER v. SHINSEKI
July 1996, or for any part of the 120-day appeal period
following the 1996 Board decision, because he was con-
fined for mental health reasons and was not released from
that confinement until July 1997. Id. at 2. The court also
noted, however, that Turner had failed to account for his
“unexplained 12 years of inaction” following release from
confinement or why he waited until August 2009 to file a
motion for reconsideration with the Board. Id. at 2–3.
Accordingly, the court found that Turner had not exer-
cised due diligence in pursuing his appeal and denied his
motion to recall the mandate and set aside the judgment.
Id. In a subsequent order issued in December 2012, the
court also denied Turner’s motion for reconsideration.
Order II.
Turner timely appealed to this court. We have juris-
diction to review this appeal pursuant to 38 U.S.C.
§ 7292.
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any stat-
ute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). Ex-
cept with respect to constitutional issues, we “may not
review (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.” Id. at § 7292(d)(2).
The Veterans Court decision did not involve any ques-
tions regarding the validity or interpretation of a statute
or regulation. Rather, the Veterans Court merely applied
the law governing the legal standard for equitable tolling
under § 7266(a) to the untimely filing of Turner’s Notice
of Appeal. Order I at 2–3.
TERRY TURNER v. SHINSEKI 5
Turner alleges here that the Veterans Court’s “denial
of [his] motion on the grounds of laches must be reversed”
because he should be “excused because of mental illness . .
. [and] there is no lack of diligence and no prejudice to the
[c]ourt or the Secretary.” Appellant Informal Br. at 3–4.
Turner asks us to “grant his motion to recall the man-
date” because “the delay is excused for mental insanity.”
Id. at 25. This argument challenges only factual findings
and an application of law to fact by the Veterans Court,
which are matters outside of our jurisdiction. Whether
equitable tolling should apply in view of the underlying
record is fundamentally an application of law to fact that
is also beyond our review. See Leonard v. Gober, 223 F.3d
1374, 1376 (Fed. Cir. 2000) (holding that we lacked juris-
diction to consider arguments regarding the application of
equitable tolling because they involved the application of
law to fact).
Turner does not raise a constitutional issue or make
any other legal arguments in his informal brief. His
contention that the Veterans Court failed to consider the
“substantial evidence [] that my mental illness at all
times is sufficient for tolling,” Appellant Informal Br.,
Question 5, is an explicit challenge to the Veterans
Court’s factual findings and its application of law to fact,
which we are expressly barred from reviewing under
§ 7292(d)(2).
We have considered the additional arguments pre-
sented in Turner’s informal appeal brief but do not find
them persuasive. For the foregoing reasons, the appeal is
dismissed for lack of jurisdiction over the arguments
raised by Turner.
DISMISSED
COSTS
No costs.