Eduardo Hinojosa v. Shinseki , 524 F. App'x 718 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDUARDO H. HINOJOSA,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7176
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-258, Judge Bruce E. Kasold.
______________________
Decided: May 15, 2013
______________________
EDUARDO H. HINOJOSA, of Irving, Texas, pro se.
CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, TODD M. HUGHES, Deputy Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
2 EDUARDO HINOJOSA v. SHINSEKI
eral Counsel, and AMANDA R. BLACKMON, Attorney, Unit-
ed States Department of Veterans Affairs, of Washington,
DC.
______________________
Before LOURIE, O'MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
DECISION
Eduardo Hinojosa, whose claim for veterans’ benefits
the Board of Veterans’ Appeals rejected, did not file a
notice of appeal to the Court of Appeals for Veterans
Claims from that rejection within 120 days, as required
by statute. The Veterans Court dismissed the appeal as
untimely after giving Mr. Hinojosa an opportunity to
explain why he missed the 120-day deadline. Hinojosa v.
Shinseki, No. 10-258, 2012 WL 3038177 (Vet. App. July
26, 2012). Because of the limits on this court’s own juris-
diction to review decisions of the Veterans Court, we now
dismiss Mr. Hinojosa’s appeal from the Veterans Court’s
dismissal.
BACKGROUND
Mr. Hinojosa served on active duty in the United
States military from January 1966 to November 1967.
Years later, he filed a claim for veterans’ benefits, assert-
ing that he was suffering from peripheral neuropathy of
the upper extremities and that the condition was connect-
ed to his military service. In February 1997, the Depart-
ment of Veterans Affairs Regional Office in Waco, Texas,
denied his claim.
Mr. Hinojosa later sought to reopen that claim and al-
so filed additional claims. The Regional Office denied the
claims. Mr. Hinojosa appealed to the Board of Veterans’
Appeals, which, in November 2007, remanded the matter
for additional evidentiary development. The matter
returned to the Board after the remand process was
EDUARDO HINOJOSA v. SHINSEKI 3
complete, and on August 27, 2009, the Board denied Mr.
Hinojosa’s claims. The Board sent Mr. Hinojosa a letter
enclosing both its decision and VA Form 4597 (June
2008). The Form notified him that he had a right to
appeal the Board’s decision to the Veterans Court and, as
to timing, that he had “120 days from the date [the
Board’s] decision was mailed to [him] (as shown on the
first page of [the] decision) to file a Notice of Appeal with
the Court.”
Mr. Hinojosa filed, no earlier than January 21, 2010,
what the Veterans Court treated as a notice of appeal
from the Board decision. 1 That filing was more than 120
days after the date shown on the first page of the Board’s
decision. In a February 4, 2010 order, the Veterans Court
found that it could not review Mr. Hinojosa’s appeal
because he had not filed it within the 120-day period for
appeal established by statute, 38 U.S.C. § 7266(a). But
the court allowed Mr. Hinojosa 30 days to show why that
conclusion was wrong, i.e., to show why his appeal should
not be dismissed for untimeliness. In response, in March
2010, Mr. Hinojosa submitted a medical report and two
1 The docket sheet of the Veterans Court records a
notice of appeal dated January 21, 2010. App. 4. But the
only document included in the record as the notice of
appeal is stamped as received by the Veterans Court on
January 25, 2010. App. 29. That document, we note,
seems less likely to be an appeal from the Board decision
of August 2009 than an appeal from a Regional Office
decision, dated September 28, 2009, on a distinct claim
filed by Mr. Hinojosa. App. 29, 30, 31-34. The Veterans
Court evidently treated the late-January filing, however,
as a notice of appeal from the Board decision and calcu-
lated timeliness on that assumption. That treatment was
favorable to Mr. Hinojosa, who otherwise filed no notice of
appeal from the Board decision at all.
4 EDUARDO HINOJOSA v. SHINSEKI
statements that detailed current and past medical condi-
tions.
On April 29, 2010, the Veterans Court dismissed Mr.
Hinojosa’s appeal. The court held that it was untimely
under the statutory deadline and that, under this court’s
decision in Henderson v. Shinseki, 589 F.3d 1201 (Fed.
Cir. 2009) (en banc), “equitable tolling” of that deadline
was not available. Mr. Hinojosa appealed to this court,
which vacated the Veterans Court’s dismissal and re-
manded the matter for further consideration, because the
Supreme Court had newly held in Henderson v. Shinseki,
131 S. Ct. 1197 (2011), that the 120-day deadline for filing
an appeal to the Veterans Court is, in fact, subject to
“equitable tolling” if a sufficient showing is made in a
particular case. Hinojosa v. Shinseki, 424 F. App’x. 946,
947 (Fed. Cir. 2011).
On remand, the Veterans Court found that the medi-
cal report and statements Mr. Hinojosa had submitted in
March 2010 did not establish that his medical condition
was sufficiently severe to render him incapable of filing
his appeal before the deadline had passed in late Decem-
ber 2009. But the court allowed Mr. Hinojosa an addi-
tional 20 days to provide a new showing of why his appeal
should not be dismissed. In response, Mr. Hinojosa
transmitted three e-mail statements to the Veterans
Court that further detailed his medical history and cur-
rent medical problems. On July 26, 2012, the Veterans
Court dismissed his appeal after finding that these expla-
nations did not establish that he was incapable of filing
his appeal within the 120-day period prescribed by stat-
ute. Mr. Hinojosa appeals.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is circumscribed by statute. See 38 U.S.C.
§ 7292. We have jurisdiction to decide appeals that
challenge the validity of a decision of the Veterans Court
EDUARDO HINOJOSA v. SHINSEKI 5
with respect to a rule of law or the validity of any consti-
tutional provision, statute, or regulation, including any
interpretation of such a source of law. Id. § 7292(d)(1).
We do not have jurisdiction to review a challenge to a
factual determination made by the Veterans Court or a
challenge to a law or regulation as applied to the facts of a
particular case unless the challenge presents a constitu-
tional issue. Id. § 7292(d)(2).
This appeal falls outside our jurisdiction. The Veter-
ans Court dismissed Mr. Hinojosa’s appeal for untimeli-
ness because he did not file within 120 days after the
Board decision was mailed and he had no ground for
equitably tolling that 120-day limit. Mr. Hinojosa pre-
sents no constitutional or other legal challenge to that
decision.
Mr. Hinojosa does not challenge the Veterans Court’s
finding that he missed the 120-day deadline, which, in
any event, is a case-specific factual matter raising no
constitutional issue and hence not within our jurisdiction
to review. Nor does he claim that the Veterans Court
adopted an incorrect interpretation of the doctrine of
equitable tolling when it examined whether his failure to
file before late December 2009 was “a direct result of a
medical condition that ‘rendered him incapable of rational
thought or deliberate decision making, or incapable of
handling [his] own affairs or unable to function [in] socie-
ty.’” Hinojosa, 2012 WL 3038177, at *1 (quoting Arbas v.
Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005)). At
most, Mr. Hinojosa disagrees with the Veterans Court’s
factual determination that he failed to offer an adequate
basis for finding the necessary incapacity to excuse his
failure to meet the 120-day deadline for filing his ap-
peal. But the Veterans Court’s factual determinations,
and its application of the law to those facts, are not sub-
ject to our review. Accordingly, we have no jurisdiction
over this appeal, which must be dismissed.
6 EDUARDO HINOJOSA v. SHINSEKI
No costs.
DISMISSED