Case: 22-1864 Document: 15 Page: 1 Filed: 02/28/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HECTOR CAMARENA,
Claimant-Appellant
v.
DENIS MCDONOUGH, Secretary of Veterans Af-
fairs,
Respondent-Appellee
______________________
2022-1864
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-7259, Judge Michael P. Allen.
______________________
Before DYK, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
ORDER
In response to the court’s order to show cause, the Sec-
retary of Veterans Affairs urges dismissal of this appeal as
untimely. Hector Camarena has not responded.
On March 3, 2022, the United States Court of Appeals
for Veterans Claims entered judgment for its earlier deci-
sion denying Mr. Camarena’s petition for a writ of manda-
mus, finding that the Department of Veterans Affairs had
complied with the court’s remand order and resolved his
Case: 22-1864 Document: 15 Page: 2 Filed: 02/28/2023
2 CAMARENA v. MCDONOUGH
benefits claim. On April 24, 2022, and April 30, 2022, the
Veterans Court received from Mr. Camarena identical cop-
ies of a letter from the Secretary concerning the Depart-
ment’s policy for reporting harassment on which Mr.
Camarena wrote that he had been a victim of a hate crime
in 1974. On May 4, 2022, the Clerk of the Veterans Court
issued the mandate and sent a letter informing Mr. Cama-
rena that the case was now closed. On May 20, 2022, the
Veterans Court received Mr. Camarena’s notice of appeal.
Section 7292(a) of title 38 of the U.S. Code provides
that review by this court of a “decision” of the Veterans
Court “shall be obtained by filing a notice of appeal with
the Court of Appeals for Veterans Claims within the time
and in the manner prescribed for appeal to United States
courts of appeals from United States district courts.” Thus,
before a party can obtain judicial review in this court, a
would-be appellant must give “notice” of the appeal and
must give that notice within “the time and in the manner”
prescribed for appeals from district courts to courts of ap-
peals, see
28 U.S.C. § 2107.
Id. Under § 2107(b), an appeal
from a final judgment in a proceeding involving the United
States must be filed within 60 days from entry of the judg-
ment.
28 U.S.C. § 2107(b)(3); Fed. R. App. P. 4(a)(1)(B).
The Supreme Court has explained that the deadline to ap-
peal from a district court judgment is jurisdictional and not
subject to equitable tolling. Bowles v. Russell,
551 U.S.
205, 214 (2007). And we have held the same for appeals
from the Veterans Court to this court. See Wagner v.
Shinseki,
733 F.3d 1343, 1348 (Fed. Cir. 2013); see also
Henderson v. Shinseki,
562 U.S. 428, 438–39 (2011).
Here, no submission by Mr. Camarena filed at the Vet-
erans Court would satisfy the requirements to obtain re-
view by this court over the Veterans Court’s judgment.
While the May 20, 2022, notice of appeal could perhaps be
construed as giving notice to the Secretary and this court
that he was intending to seek review of the March 3, 2022,
judgment, it was filed outside of the 60-day deadline. And
Case: 22-1864 Document: 15 Page: 3 Filed: 02/28/2023
CAMARENA v. MCDONOUGH 3
while his April 24, 2022, and April 30, 2022, submissions
were submitted within 60 days from the date of the judg-
ment, they fail, even under a liberal reading, to “indicate
the litigant’s intent to seek appellate review,” Smith v.
Barry,
502 U.S. 244, 248 (1992) (citations omitted), because
they do not designate any judgment, see Fed. R. App. P.
3(c)(1)(B), (C) (requiring a notice of appeal to designate the
judgment under appeal and the court to which appeal is
taken), or convey any intention by him to appeal.
Mr. Camarena’s attempts to appeal from the Veterans
Court’s mandate and closed case letter suffer from a sepa-
rate problem: they are not appealable decisions within this
court’s jurisdiction under
38 U.S.C. § 7292(a). See Krueger
v. Gober,
251 F.3d 169,
2000 WL 1897660, at *1 (Fed. Cir.
2000) (Table) (noting that this court does not have jurisdic-
tion to review a clerk’s case closed letter); Germany v.
McDonough, No. 2022-1806,
2022 WL 3147897, at *1 (Fed.
Cir. Aug. 8, 2022) (dismissing appeal from Veterans
Court’s entry of mandate for lack of jurisdiction); cf. Amara
v. Cigna Corp.,
53 F.4th 241, 252 (2d Cir. 2022) (“The Su-
preme Court has held that we lack jurisdiction over ap-
peals from ministerial orders.”). We therefore lack
jurisdiction and dismiss.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
February 28, 2023 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
