Cabalza v. Principi , 114 F. App'x 391 ( 2004 )

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
04-7125
ERLINDA T. CABALZA,
Claimant-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: November 8, 2004
___________________________
Before, RADER, DYK, and PROST, Circuit Judges.
PER CURIAM
The U.S. Court of Appeals for Veterans Claims (Veterans Court) affirmed
the Board of Veterans’ Appeals’ (BVA’s) decision to dismiss Mrs. Erlinda
Cabalza’s appeal for lack of jurisdiction. Cabalza v. Principi, No. 03-1975 (Vet.
App. Mar. 10, 2004). Because Mrs. Cabalza fails to raise a constitutional issue in
her appeal to this court, this court lacks jurisdiction to review the Veterans
Court’s dismissal of Mrs. Cabalza’s appeal as untimely. Accordingly, Mrs.
Cabalza’s appeal to this court is dismissed.
BACKGROUND
On March 11, 2003, the BVA denied Mrs. Cabalza’s claim for dependency
and indemnity compensation benefits based on service connection for the cause
of her veteran husband’s death. Accompanying the decision was a notice
informing Mrs. Cabalza that she had “120 days from the date of mailing of the
notice of the BVA’s decision” to file a notice of appeal with the Veterans Court.
See also 38 U.S.C. § 7266(a) (2000). Mrs. Cabalza did not immediately appeal
to the Veterans Court. Instead, on August 27, 2003, 169 days after the mailing of
the BVA’s decision, Mrs. Cabalza asked the BVA to reconsider its decision. Mrs.
Cabalza’s motion for reconsideration of the BVA’s decision was timely under 38
C.F.R. § 20.1001(b) (2001) (emphasis added), which provides that a “motion for
reconsideration of a prior Board of Veterans’ Appeals decision may be filed at
any time.”
On September 9, 2003, the BVA denied Mrs. Cabalza’s motion for
reconsideration for failure to show error in the BVA’s decision. Mrs. Cabalza filed
a notice of appeal on November 10, 2003 with the Veterans Court. The Veterans
Court ordered Mrs. Cabalza to show cause why the appeal should not be
dismissed for lack of jurisdiction since she had not filed within the 120-day
deadline as required by section 7266(a) of title 38. Mrs. Cabalza filed responses
on February 9 and 18, 2004. These responses, however, did not address the
Veterans Court’s lack of jurisdiction. The Veterans Court dismissed the appeal
for lack of jurisdiction on March 10, 2004, and entered judgment on May 3, 2004.
Mrs. Cabalza now appeals the Veterans Court’s determination to this court.
DISCUSSION
This court’s jurisdiction to review a judgment of the Veterans Court is
limited by 38 U.S.C. § 7292(d)(2), which provides that “[e]xcept to the extent that
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an appeal . . . 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.” Therefore, without a
constitutional issue, this court lacks jurisdiction to review Mrs. Cabalza’s appeal if
it involves a determination of facts or the application of law to facts.
On appeal, Mrs. Cabalza argues that 38 U.S.C. § 7266(a) and 38 C.F.R. §
20.1001(b) are misleading and unconstitutional. Mrs. Cabalza argues that the
120-day appeal period of section 7266(a)(1) of title 38 was tolled because she
had filed a request for reconsideration with the BVA “at any time” as defined
under 5 C.F.R. § 20.1001(b). However, in order to toll the 120-day appeal
period, an appellant must file a motion for reconsideration of a decision of the
BVA within 120 days after the BVA’s decision is mailed. Graves v. Principi, 294
F.3d 1350, 1352 (Fed. Cir. 2002) (citing Rosler v. Derwinski, 1 Vet. App. 241(1991)). The appellant then has 120 days from the date of mailing of the BVA’s
reconsideration decision to file a notice of appeal with the Veterans Court. Id.Because Mrs. Cabalza filed a motion for reconsideration of the BVA’s decision
169 days after the mailing of the BVA’s initial decision, Mrs. Cabalza’s motion did
not toll the appeal period.
Furthermore, Mrs. Cabalza’s appeal is not eligible for equitable tolling of
the 120-day appeal period because she has not shown that she “has actively
pursued [her] judicial remedies by filing a defective pleading” or that she was
“induced or tricked by [her] adversary’s misconduct into allowing the filing
deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); see
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Bailey v. West, 160 F.3d 1360, 1364-68 (Fed. Cir. 1998) (adressing the doctrine
of equitable tolling). Because Mrs. Cabalza is not seeking review of a decision of
the Veterans Court with respect to a constitutional issue, but instead simply
challenges the Board’s application of the law to the facts of this case, this court
lacks jurisdiction and must therefore dismiss Mrs. Cabalza’s appeal.
Mrs. Cabalza also raises arguments relating to the merits of her
underlying claim. Because the Veterans Court dismissed her appeal on
timeliness grounds, the merits of this case are not properly before us and we
decline to address them.
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