Wesley v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL WESLEY, SR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7019
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-1640, Judge Mary J. Schoelen.
______________________
Decided: April 9, 2014
______________________
MICHAEL WESLEY, SR., of Augusta, Georgia, pro se.
VERONICA N. ONYEMA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and SCOTT D. AUSTIN, Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant, General Counsel, and CHRISTINA L. GREGG,
2 WESLEY v. SHINSEKI
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before MOORE, REYNA, and HUGHES, Circuit Judges.
PER CURIAM.
Michael Wesley, Sr. appeals from the decision of the
United States Court of Appeals for Veterans Claims
(Veterans Court) dismissing his appeal as untimely filed.
We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Wesley served on active duty from 1984 to 1994.
He made a claim for service connection for hypertension,
which the Department of Veterans Affairs (VA) denied.
Several years later, Mr. Wesley filed a request to reopen
his claim, which the VA denied. Mr. Wesley appealed to
the Board of Veterans Appeals (Board). The Board re-
manded Mr. Wesley’s claim to the VA Regional Office
(RO) to further develop the record. The RO again refused
to reopen Mr. Wesley’s claim, and Mr. Wesley appealed to
the Board for the second time. The Board found that Mr.
Wesley did not submit any new and material evidence to
the RO, and affirmed the RO’s denial of his request to
reopen his claim. The Board instructed Mr. Wesley that
the deadline to submit an appeal to the Veterans Court
would expire 120 days from the date of the Board’s deci-
sion. Mr. Wesley filed a Notice of Appeal (NOA) to the
Veterans Court more than four months after the statuto-
rily-mandated 120-day period expired.
The Veterans Court informed Mr. Wesley that his
NOA was untimely filed, and ordered him to explain why
it should not dismiss his appeal. He responded that he
sent his “paper work” to two other places before he ap-
pealed to the Veterans Court. First, before the Board’s
decision issued, Mr. Wesley sent the Board a notice re-
WESLEY v. SHINSEKI 3
questing rehearing, which the Board denied. Second,
more than three months after the 120-day period expired,
Mr. Wesley filed a petition with the Supreme Court of the
United States.
The Veterans Court dismissed Mr. Wesley’s appeal as
untimely filed. Wesley v. Shinseki, No. 13-1640, slip op. at
2–3 (Vet. App. Sept. 12, 2013). It noted that the 120-day
period could be equitably tolled if circumstances preclud-
ed a timely filing despite the exercise of due diligence, but
determined that equitable tolling did not apply in this
case. Id. at 2. The Veterans Court denied Mr. Wesley’s
motion for reconsideration, and entered judgment. Mr.
Wesley appeals.
DISCUSSION
We have jurisdiction to review “the validity of a deci-
sion of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a). We lack jurisdiction,
however, to review a challenge to factual determinations
or the application of a law or regulation to particular
facts, except to the extent that an appeal presents a
constitutional issue. Id. § 7292(d)(2).
Mr. Wesley challenges the Veterans Court’s dismissal
of his appeal as untimely filed. Mr. Wesley asserts that
he has sent letters that the government has not answered
or addressed. He argues that we should make findings
concerning the merits of his claim for service connection
for hypertension or other conditions.
The government responds that we do not have juris-
diction to address Mr. Wesley’s arguments because he
does not challenge the Veterans Court’s decision on a rule
of law, or the validity or interpretation of a statute or
regulation on which the Veterans Court relied. It con-
4 WESLEY v. SHINSEKI
tends that Mr. Wesley presents “a mere disagreement
with the court’s finding that he failed to show that any
circumstance, such as a timely misfiling, actually pre-
vented him from filing a timely notice of appeal.” Appel-
lee Br. at 9.
We lack jurisdiction over this appeal. Mr. Wesley
does not allege that the Veterans Court committed any
legal error in holding that equitable tolling does not apply
to his appeal. Nor has he argued that the Veterans
Court’s decision involved an interpretation of a statute or
regulation. Mr. Wesley disputes the Veterans Court’s
finding that he failed to demonstrate that circumstances
precluded timely filing of his NOA despite the exercise of
due diligence. “[T]his constitutes, at the very least, the
application of the law of equitable tolling to the facts of
the case. [To exercise jurisdiction over this appeal], [w]e
would also have to judge the accuracy of the facts found
by the lower court. This we cannot do.” Leonard v. Gober,
223 F.3d 1374, 1376 (Fed. Cir. 2000). In other words, we
lack the authority to correct the errors that, according to
Mr. Wesley, were purportedly made by the Veterans
Court and the VA.
CONCLUSION
We have considered Mr. Wesley’s remaining argu-
ments and do not find them persuasive. We conclude Mr.
Wesley has not presented an issue over which we have
jurisdiction.
DISMISSED
COSTS
No costs.