Miller v. Shinseki , 401 F. App'x 548 ( 2010 )

NOTE: Tbis order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
WINFRED MILLER,
Claimant-Appellcmt,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Responden.t-Appellee.
2010-7051
Appea1 from the United States Court of Appea1s for
Veterans C1aims in case no. 08-1159, Judge Lawrence B.
Hage1.
ON MOTION
Befo1'e GAJARSA, SCHALL, and MO0RE, C'ircuit Judges.
PER CUR1AM.
0 R D E R
Winfred Mi1ler moves for an extension of time to file
his notice of appeal Mi11er also submits his informal
opening brief The Secretary of Veterans Affairs submits
MILLER V. DVA 2
an informal response brief and moves to dismiss the
appeal for lack of jurisdiction Miller replies
The Court of Appeals for Veterans Claims entered
judgment on November 17, 2009. fn proceedings before
that court, Miller was represented by counse1. 0n De-
cember 21, 2009, Miller, on his own behalf, submitted a
letter to the Court of Appeals for Veterans Claims stating
that his attorney had resigned as of November 5, 2009. ln
the December 21 submission, Miller requested a 45-day
extension of time to file an appeal. The Court of Appeals
for Veterans Claims returned the papers to Miller because
the court records reflected that Miller was represented by
counsel and only counsel could file documents with the
court. Miller then filed a notice of appeal on January 20,
2010, 64 days after entry of judgment. On January 21,
2010, the Court of Appeals for Veterans Claims received
further correspondence from Miller indicating that his
former attorney was no longer representing him. The
Court of Appeals for Veterans Claims docket sheet cur-
rently reflects that Miller is proceeding pro se.
Because Miller’s notice of appeal was filed more than
60 days after entry of judgment, it appears to be un-
timely See 38 U.S.C. § 7292(a); Fed. R. App. P. 4(a)(1);
see also Griggs u. Prouident C0n,sumer Disc. C'o., 459 U.S.
56, 61 (1982) ("It is well settled that the requirement of a
timely notice of appeal is ‘mandatory and jurisdictional' ")
(citation omitted). In any event, even if we were to treat
Miller's December 21, 2009 letter to the clerk of the Court
of Appeals for Veterans Claims as a timely notice of
appeal, we would be required to dismiss this appeal
because Miller raises no issues within this court's juris-
diction.
The court’s jurisdiction to review decisions of the
Court of Appeals for Veterans Claims is limited See
Forshe_y u. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002)
(en banc). Under 38 U.S.C. § 7292(a), this court has
3 MILLER V. DVA
jurisdiction over rules of law or the validity of any statute
or regulation, or an interpretation thereof relied on by the
court in its decision. This court may also entertain chal-
lenges to the validity of a statute or regulation, and to
interpret constitutional and statutory provisions as
needed for resolution of the matter. 38 U.S.C. § 7292(c).
In contrast, except where an appeal presents a constitu-
tional question, this court lacks jurisdiction over chal-
lenges to factual determinations or laws or regulations as
applied to the particular case. 38 U.S.C. § 7292(d)(2).
Miller asserts in his brief that the Court of Appeals
for Veterans Claims failed to apply reasonable doubt to
the facts of his case and that that court erred in determin-
ing that the Board of Veterans' Appeals failure to consider
a treatise was harmless error. Miller also challenges the
weighing of evidence and asserts that he did not receive
an adequate hearing because, inter alia, it was not fully
recorded A1though Miller asserts that his arguments
involve regulations, statutes, and constitutional issues,
this court must look beyond the appellant’s characteriza-
tion of the issues to determine whether they fall within
the jurisdiction of this court. Flores v. Nichols0n, 476
F.3d 1379, 1382 (Fed. Cir. 2()(}7); Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999). Here, Miller’s arguments
ultimately challenge how the Board and the Court of
Appeals for Veterans Appeals weighed the facts and
applied the law to the facts, which are issues outside this
court’s limited jurisdiction. The Secretary argues without
opposition that Miller did not raise his assertion about
the hearing when he was represented by counsel before
the Court of Appeals for Veterans Claims, and Miller does
not explain what evidence he might have been precluded
from presenting. In any event, we decline to review the
bare assertion of the issue here. Forshey, 284 F.3d 1335,
1358 (recognizing that this court will not usually recog-
nize exceptions to the requirement that a party repre-
MILLER V. DVA 4
sented by counsel below must raise issues in that court
before seeking review by this court).
Accordingly,
lT IS ORDERED THATZ
(1) The appeal is dismissed
(2) All pending motions are moot.
(3) Each side shall bear its own costs.
FOR THE COURT
nl 1 5 /sf Jan Horbaly
Date J an Horbaly
Clerk
. _ Fl "
cc: W1nfred Miller U.S. COURT Ol?§i'=JPEA'_S FOH
Kent C. Kiffner, Esq. THE FEDERA"``ni'iWl
88 nov 1 5 zinc
JAN HORBALY
C|.ERK