Gebhart v. Shinseki , 399 F. App'x 579 ( 2010 )

NOTE: This order is nonprecedential
United States Court ofA1;1peaIs
for the FederaI Circuit
OLIVER C. GEBHART,
Claimant-Appellant,
V. -
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFA1RS, ``
Respondent-Appellee.
2010-7067
Appeal from the United States Court of Appea1s for
Veterans C1aims in case n0. 09-1682, Chief Judge Wi}1iam
P. Greene, Jr.
ON MOTION
Before L1NN, DYK, and PRosT, Circuit Judges.
PER CURLAM
ORDER '
The Secreta1'y of Vet``erans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and dismiss O1iver C.
Gebhart’s appeal in this case, or in the alternatiVe, moves
to summarily affirm the judgment of the United States
GEBHART V. DVA 2
Court of Appeals for Veterans Claims. Gebhart moves to
consolidate this appeal with 2010-7050. The Secretary
opposes.
The United States Court of Appeals for Veterans
Claims dismissed Gebhart’s appeal for lack of jurisdiction.
Specifically the court determined that Gebhart failed to
provide any evidence that he was appealing a Hnal deci-
sion of the Board of Veterans’ Appeals decision. Gebhart
filed an appeal with this court seeking review of that
decision
The court’s jurisdiction to review decisions of the
C0urt of Appeals for Veterans Claims is limited. See
Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. _Cir. 2002)
(en banc). Under 38 U.S.C. § 7292(a), this court has
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).
ln his informal brief, Gebhart appears to only make
various arguments regarding his medical condition.
However, because the Court of Appeals for Veterans
Claims dismissed Gebhart’s appeal in that court for lack
of jurisdiction and did not address the merits of his claim,
these arguments are not before us. To the extent that
Gebhart seeks to challenge whether the Court of Appeals
for Veterans Claims correctly determined that it lacked
jurisdiction over his appeal, we summarily affirm. When
the Board has not rendered a final and appealable deci-
sion on a particular matter, the Court of Appeals for
3 GEBHA.RT V. DVA
Veterans Claims has no jurisdiction to consider any
appeal.
Accordingly,
IT ls ORDERED THAT:
(1) The Secretary’s motion to dismiss is denied.
(2) The Secretary’s motion to summarily affirm is
granted
(3) Gebhart’s motion to consolidate is denied as moot.
(4) Each side shall bear its own costs.
(5) All pending motions are moot.
FoR THE CoURT
ocf 2 6 2010 /s/ Jan Horbaly
Date J an Horbaly
Clerk
cc: Oliver C. Gebhart F|LE|}
De1isa M. Sanchez, Esq. 03
320 ocr 2 6 ama
.lAN HORBAL¥
Ol.ERK