Mondero v. Nicholson , 129 F. App'x 605 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-7177
FLORIDA A. MONDERO,
Claimant-Appellant,
v.
JIM NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: February 14, 2005
___________________________
Before RADER, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
The United States Court of Appeals for Veterans Claims dismissed Ms. Florida A.
Mondero’s appeal from a decision of the Deputy Vice Chairman of the Board of
Veterans’ Appeals (Board) denying reconsideration of a July 30, 1999 Board decision.
Mondero v. Principi, No. 04-0087 (Vet. App. July 6, 2004). The Board did not
recognize Ms. Mondero as the surviving spouse of a veteran. The Veterans Court
dismissed her appeal for lack of jurisdiction because Ms. Mondero did not file her Notice
of Appeal (NOA) in a timely manner. Because Ms. Mondero raises no genuine legal or
constitutional issue, this court lacks jurisdiction to review the Veterans Court’s decision.
Accordingly, this court dismisses Ms. Mondero’s appeal.
I.
VA Form 4597, in its paragraph (3), reads, in part, “A Notice of Appeal must be
filed with the [Veterans Court] within 120 days from the date of mailing of the notice of
the [Board’s] decision.” Ms. Mondero’s motion for reconsideration was filed on February
9, 2000, more than 120 days after the filing date. The Board denied Ms. Mondero’s
motion for reconsideration because she did not prove that the Board decision contained
obvious error. Ms. Mondero filed a second motion for reconsideration, which was
denied on January 28, 2003. The Board denied Ms. Mondero’s third motion for
reconsideration on December 4, 2003.
Ms. Mondero filed a NOA with the Veterans Court on January 23, 2004 that was
dismissed for lack of jurisdiction on July 6, 2004. The Veterans Court concluded that it
may not “review denials of reconsideration by the Board Chairman in cases where it
does not already have jurisdiction by virtue of a timely appeal from a final Board
decision.” Mondero, slip op. at 1-2. In addition, the Veterans Court declined to toll the
120-day filling period under Rosler v. Derwinski, 1 Vet. App. 241, 245 (1991).
On August 2, 2004, Ms. Mondero filed a motion for reconsideration of the July 6,
2004 decision. Ms. Mondero argued that her receipt of the July 1999 Board decision
was delayed until December 23, 1999, due to a failure of her counsel. The Veterans
Court denied this motion on August 9, 2004 and entered judgment on August 27, 2004.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited to
“any challenge to the validity of any statute or regulation or any interpretation thereof
. . . and to interpret constitutional and statutory provisions, to the extent presented and
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necessary to a decision.” 38 U.S.C. § 7292(c) (1994). “Except to the extent that an
appeal under this chapter presents a constitutional issue, the Court of Appeals 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. § 7292(d)(2).
In other words, this court may decide “all relevant questions of law, including
interpreting constitutional and statutory provisions” and must set aside any regulation or
interpretation thereof “other than a determination as to a factual matter” relied upon by
the Veterans Court that it finds to be: “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to constitutional right, power,
privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or
in violation of a statutory right; or (D) without observance of procedure required by law.”
38 U.S.C. § 7292 (d)(1). In considering whether an appeal falls within its jurisdiction,
this Court looks to the substance of the issue presented rather than a party’s
characterization of the question. Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Ms. Mondero did not challenge the validity or interpretation of any statute or
regulation. The Veterans Court decision that Ms. Mondero challenges did not elaborate
on the meaning of any statute, regulation, or rule of law. The Veterans Court applied
the established law concerning the procedures for the timely filing of appeals.
Under section 7266(a), a NOA must be filed with the Veterans Court within 120
days after notice of a Board decision is mailed. However, the Veterans Court has also
held that the 120-day appeal period may be tolled and a NOA may be considered timely
if the appellant: (1) files a motion for Board reconsideration within 120 days after the
mailing date of the Board decision; and then (2) files a NOA within 120 days after the
04-7177 3
Board Chairman denied the reconsideration motion. See Rosler, 1 Vet. App. at 245.∗ In
Ms. Mondero’s case, the Veterans Court found that the NOA and the motions for Board
reconsideration were filed more than 120 days after the date of the July 1999 Board
decision. Mondero, slip op. at 1-2. Accordingly, the Veterans Court determined that
Ms. Mondero’s NOA was not timely filed and that neither of the conditions for tolling set
forth in Rosler had been met. Therefore, the Veterans Court dismissed for lack of
jurisdiction. Id.
Although Ms. Mondero challenges the Board’s conclusion that she was not the
surviving spouse of the veteran, her arguments are beyond this Court’s jurisdiction
under 38 U.S.C. § 7292 because the Veterans Court decision was limited to matters of
jurisdiction.
Even though Ms. Mondero asserts that the Veterans Court decided constitutional
issues, she does not explain how her constitutional rights were implicated by the
Veterans Court decision. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)
(holding that this Court does not have jurisdiction over assertions that are constitutional
“in name only”).
Ms. Mondero’s assertion that the delay in filing her motion for reconsideration
was the fault of her attorney also raises no issues as to the validity or interpretation of
any statute or regulation. Additionally, this court finds all other arguments raised by Ms.
Mondero unpersuasive.
∗
In Linville v. West, 165 F.3d 1382, 1385-86 (Fed. Cir. 1999), this court
adopted the Rosler rule. See Graves v. Principi, 294 F.3d 1350, 1352 (Fed. Cir. 2002).
04-7177 4
In conclusion, because Ms. Mondero does not challenge the validity or
interpretation of any statute or regulation and raises no constitutional issues, this court
dismisses for want of jurisdiction. See 38 U.S.C. § 7292 (c), (d)(2).
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