Stewart v. Dept. Of Veterans Affairs ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CARL W. STEWART,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7117
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4562, Chief Judge Bruce E.
Kasold.
___________________________
Decided: December 7, 2012
___________________________
CARL W. STEWART, of Washington, DC, pro se.
AUSTIN FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDISON, Direc-
tor, and TODD M. HUGHES, Deputy Director.
CARL STEWART v. SHINSEKI 2
__________________________
Before NEWMAN, PROST and REYNA, Circuit Judges.
PER CURIAM.
Carl Stewart appeals from the decision of the Court of
Appeals for Veterans Claims dismissing his appeal as
untimely. The Court of Appeals for Veterans Claims
found that Stewart had failed to file his notice of appeal
prior to the 120-day deadline and that equitable tolling
was not appropriate under the facts of his case. Because
we lack jurisdiction to review the Court of Appeals for
Veterans Claims’ factual determination that there was no
trickery, concealment, or misconduct in this case, as well
as its application of the law of equitable tolling to that
determination, we dismiss Stewart’s appeal.
BACKGROUND
Stewart served on active duty from May 1977 through
October 1981 and spent time in active duty training from
July 1976 to October 1976. During that time, he was
treated for eye problems, but his examination upon sepa-
ration from service contained no notation that he had
residual eye conditions related to his in-service eye treat-
ments, and an examination conducted by the Veterans
Administration in 1986 showed no eye abnormalities.
In April 2002, Stewart received an eye examination
and was found to have “vitreous floaters and a possible
epiretinal membrane in the left eye.” He sought benefits
from the VA. A VA eye examination was scheduled for
Stewart in May 2008 but he did not attend. On November
20, 2008, the Board found that Stewart “is not currently
diagnosed as having an eye disability attributable to his
period of active service,” and therefore concluded that
“[t]he criteria for service connection for a bilateral eye
3 CARL STEWART v. SHINSEKI
disability have not been met.” The Board’s decision was
accompanied by VA Form 4597 informing Stewart of his
right to appeal and of the 120-day deadline for filing a
notice of appeal. Stewart filed a timely motion to recon-
sider, which was denied on July 14, 2009. Stewart v.
Shinseki (“CAVC Op.”), No. 10-3079, 2012 WL 1353148, at
*1 (Vet. App. Apr. 19, 2012).
Almost a year later, on July 12, 2010, Stewart sought
to vacate the November 2008 decision, but was denied.
Id. Stewart filed a notice of appeal to the Court of Ap-
peals for Veterans Claims on September 13, 2010. Id.The Veterans Court ordered Stewart to show cause why
his appeal should not be dismissed for lack of jurisdiction.
Id. Stewart responded that his appeal should not be
dismissed “because of trickery, concealment of facts, and
misconduct.” Id.Relying on Henderson v. Peake, 22 Vet. App. 217, 220-
21 (2008), aff’d sub nom. Henderson v. Shinseki, 589 F.3d
1201 (Fed. Cir. 2009), rev’d, 131 S. Ct. 1197 (2011), the
Court of Appeals for Veterans Claims dismissed Stewart’s
appeal as untimely. CAVC Op. at *1. In Henderson v.
Peake, the Court of Appeals for Veterans Claims had held
that the 120-day deadline for filing a notice of appeal was
jurisdictional and not subject to equitable tolling. 22 Vet.
App. at 221. While Stewart was seeking reconsideration
of this ruling, the Supreme Court reversed Henderson v.
Peake, and Stewart’s case was stayed. Subsequently, the
Court of Appeals for Veterans Claims decided that the
120-day deadline is subject to equitable tolling within the
parameters established by Bailey v. West, 160 F.3d 1360(Fed. Cir. 1998) (en banc). Bove v. Shinseki, 25 Vet. App.
136, 145 (2011) (per curiam).
Stewart’s case was returned to a single judge for re-
consideration in light of Bove. Stewart v. Shinseki, No.
CARL STEWART v. SHINSEKI 4
10-3079, 2012 WL 693971 (Vet. App. Mar. 2, 2012) (en
banc). The Court of Appeals for Veterans Claims ob-
served that it was “undisputed that [Stewart] failed to file
either his [notice of appeal] or his July 2010 motion for
vacatur within 120 days after the Board denied his first
motion for reconsideration.” CAVC Op. at *2. Accord-
ingly, the court reasoned that it could only accept Stew-
art’s notice of appeal as timely if equitable tolling was
warranted. Id. Examining Stewart’s response to the
order to show cause in light of the equitable tolling factors
explained in Bove, the court concluded that equitable
tolling was not appropriate and dismissed Stewart’s case.
CAVC Op. at *2. This appeal followed.
DISCUSSION
Our jurisdiction to review appeals from the Court of
Appeals for Veterans Claims is limited by statute. 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 of Appeals
for Veterans Claims in its decision. We may also enter-
tain challenges to the validity of a statute or regulation,
and may interpret constitutional and statutory provisions
as needed for resolution of the matter. See 38 U.S.C. §
7292(c). In contrast, except where an appeal presents a
constitutional question, our jurisdictional statute does not
allow us to review challenges to factual determinations or
the application of law to fact. See 38 U.S.C. § 7292(d)(2).
To be timely, a notice of appeal must be filed with the
Court of Appeals for Veterans Claims within 120 days
after the date the Board decision was mailed. 38 U.S.C. §
7266(a). When an appellant files a motion for reconsid-
eration with the Board within the 120-day period and it is
denied, a new 120-day period begins on the date the
denial of the motion to reconsider is mailed. See Rosler v.
5 CARL STEWART v. SHINSEKI
Derwinski, 1 Vet. App. 241, 249 (1991). The 120-day
period is subject to equitable tolling. Bove, 25 Vet. App.
at 140.
Equitable tolling is available where “where the com-
plainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.”
Bailey, 160 F.3d at 1364 (internal quotation marks omit-
ted). Stewart argues that deadline should be excused
“because of trickery, concealment of facts, and miscon-
duct” on the part of the VA. CAVC Op. at *1. But the
Court of Appeals for Veterans Claims rejected this asser-
tion as unsupported, observing that his “mere assertion
does not demonstrate that his untimely filing was, in fact,
the result of reliance on [an] incorrect statement of a VA
official.” Id. at *2. The court found that Stewart had
“failed to demonstrate the existence of any” facts to sup-
port equitable tolling. Id. Accordingly, it concluded that
Stewart was not entitled to equitable tolling of the 120-
day limit and dismissed his case. Id.
Our limited standard of review does not permit us to
disturb this decision on appeal. The Veterans Court made
factual findings that Stewart had not substantiated his
claims of “trickery, concealment of facts, and misconduct,”
nor had he proven any other facts relevant to equitable
tolling. See id. Under these facts, the court concluded
that equitable tolling did not apply. The court’s factual
determinations, as well as its application of the law to
those facts, are not subject to our review. See 38 U.S.C. §
7292(d)(2). Stewart also identifies, without explanation,
several statutes that he alleges were improperly inter-
preted below. The Veterans Court did not, however, base
its decision on these statutes, and they too are beyond
review by this court. See 38 U.S.C. § 7292(a). Accord-
ingly, we have no jurisdiction over this appeal, and it is
therefore
CARL STEWART v. SHINSEKI 6
DISMISSED
COSTS
No Costs.