Charlie Cook, Claimant-Appellant v. Jesse Brown, Secretary of Veterans Affairs

48 F.3d 1234
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Charlie COOK, Claimant-Appellant,
v.
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 94-7011.

United States Court of Appeals, Federal Circuit.

March 9, 1994.

ON MOTION

Before ARCHER, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.

ORDER

RADER

1

The Secretary of Veterans Affairs moves to waive the requirements of Fed.Cir.R. 27(e) and to dismiss Charlie Cook's appeal for lack of jurisdiction. Cook has not filed a response.

2

On December 1, 1992, the Board of Veterans Appeals denied Cook's claim of service connection for a back disorder. On April 12, 1993, Cook appealed to the Court of Veterans Appeals. On July 27, 1993, the Court of Veterans Appeals dismissed Cook's appeal because it was filed beyond the 120-day statutory period. Cook appealed to this Court.

3

Under 38 U.S.C. Sec. 7292, this court may review only challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitutional provision, that the court of Veterans Appeals relied on in its decision. If an appeal to this court from the Court of Veterans Appeals does not challenge the validity or interpretation of a statute or regulation, or the interpretation of a constitutional provision, Sec. 7292(d) requires this court to dismiss the appeal. That section states that this court "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulations as applied to the facts of a particular case."

4

In his informal brief, Cook argues that he mistakenly mailed his notice of appeal to the Board instead of to the Court of Veterans Appeals. Cook states that because his appeal was dismissed, the wrong law was applied to his case. His appeal thus amounts to a request for review of factual determinations and a challenge to the law as applied to the particular facts of his case. As this court has no jurisdiction to conduct such an inquiry, this appeal must be dismissed. See Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed.Cir.1992).

5

Accordingly,

IT IS ORDERED THAT:

6

(1) The Secretary's motion to waive the requirements of Fed.Cir.R. 27(e) is granted.

7

(2) The Secretary's motion to dismiss is granted.

8

(3) Each side shall bear its own costs.