Mezzulo v. Shinseki

Case: 13-7017 Document: 8 Page: 1 Filed: 03/05/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROGER T. MEZZULO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2013-7017
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-2277, Chief Judge Bruce
E. Kasold.
__________________________
ON MOTION
__________________________
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves for the court
to dismiss this appeal. Roger Mezzulo has not responded to
that motion.
Case: 13-7017 Document: 8 Page: 2 Filed: 03/05/2013
ROGER MEZZULO V. SHINSEKI 2
Mr. Mezzulo served on active duty in the military from
1968 to 1970. A December 2008 decision of the Board of
Veterans Appeals (Board) denied him entitlement to ser-
vice connection for hearing loss and remanded three other
claims for further development and consideration by the
Department of Veterans Affairs (DVA).
In June 2010, more than a year and a half after the is-
suance of the Board’s decision, Mr. Mezzulo appealed to the
Court of Appeals for Veterans Claims (Veterans Court).
The Veterans Court dismissed the appeal on October 21,
2010, finding that Mr. Mezzulo failed to file his notice of
appeal within 120 days of the mailing of the Board’s deci-
sion as required by 38 U.S.C. § 7266. Mr. Mezzulo filed a
motion for reconsideration the following day. While his
motion was pending, the decision in Henderson v. Shinseki,
131 S. Ct. 1197 (2011), issued. Subsequently, the Veterans
Court determined that Section 7266’s filing deadline is
subject to equitable tolling in certain circumstances. Bove
v. Shinseki, 25 Vet. App. 136, 340 (2011).
In August 2012, the Veterans Court issued an order
asking Mr. Mezzulo to “file a response discussing whether
the circumstances in this instant case warrant the equita-
ble tolling of the 120-day judicial-appeal period.” Mr.
Mezzulo filed a response on September 4, 2012 and on
September 5, 2012, filed his notice of appeal seeking review
in this court. The Veterans Court then issued an order
staying Mr. Mezzulo’s motion for reconsideration because it
lacked jurisdiction over his case during the pendency of his
appeal to this court.
Ordinarily, we exercise jurisdiction under 38 U.S.C.
§ 7292(a) only over final judgments by the Veterans Court.
Frederick v. Shinseki, 684 F.3d 1263, 1265 (Fed. Cir.
2012); Adams v. Principi, 256 F.3d 1318, 1320-21 (Fed. Cir.
2001). Here, Mr. Mezzulo’s motion for reconsideration has
Case: 13-7017 Document: 8 Page: 3 Filed: 03/05/2013
3 ROGER MEZZULO V. SHINSEKI
rendered this appeal premature. After the Veterans Court
issues a decision concerning the motion for reconsidera-
tion, Mr. Mezzulo must file a new notice of appeal within
60 days if he wishes to seek review of the Veterans
Court’s reconsideration decision, the October 21, 2010
decision, or both. See 38 U.S.C. § 7292(a); 28 U.S.C.
§ 2107(b); Fed. R. App. P. 4(a)(1).
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed as
premature.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s26
ISSUED AS A MANDATE: March 5, 2013