Fred R. Williams v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

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# United States Court of Appeals for the Federal Circuit

2009-7141

FRED R. WILLIAMS,

Claimant-Appellant,
V.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
07-3314, Judge Mary J. Schoelen.

ON MOTION

Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
PER CURIAM.

## ORDER

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and dismiss for lack of jurisdiction Fred R. Williams's appeal from a decision of
the United States Court of Appeals for Veterans Claims affirming the Board of Veterans'
Appeals (Board) decision that denied Williams entitlement to service connection for a
right-hip disorder.

Williams served honorably in the U.S. Army from August 1963 to May 1966. He
reinlisted in August 1966 and was discharged under dishonorable conditions in July
1967. In October 2002, Williams filed an application for disability benefits, claiming that
he currently suffered from a right hip disorder stemming from an injury while he was in
service. A Department of Veterans Affairs regional office (RO) issued Williams a letter
notifying him of what evidence or information he needed to submit in order to

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substantiate his claim. In April 2004, the RO denied Williams's claim for entitlement to
service connection for his right-hip disorder. The Board sustained the RO's
determination and Williams appealed to the Court of Appeals for Veterans Claims.
Williams's sole argument on appeal was that the Secretary failed to satisfy his duty-to-
notify requirements pursuant to 38 U.S.C. § 5103(a). The Court of Appeals for Veterans
Claims rejected that argument and affirmed. Williams filed an appeal seeking this
court's review.

The court's jurisdiction to review decisions of the Court of Appeals for Veterans
Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en
banc). 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 in
its decision. This court may also entertain challenges to the validity of a statute or
regulation, and to interpret constitutional and statutory provisions as needed for
resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal
presents a constitutional question, this court lacks jurisdiction over challenges to factual
determinations or laws or regulations as applied to the particular case. 38 U.S.C. §
7292(d)(2).

Williams's informal brief raises arguments concerning the merits of his disability
claim and his dishonorable discharge. Those arguments were not raised below and are
not properly before this court on appeal. We are also without jurisdiction to review the
court's § 5103(a) determination, which raises solely issues of fact or application of law
to fact and are therefore outside this court's review authority. Mayfield v. Nicholson,
444 F.3d 1328, 1335 (Fed. Cir. 2006). Because we agree with the Secretary that this
court lacks jurisdiction, we must dismiss Williams's appeal.

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Accordingly,

IT IS ORDERED THAT:

(1)
The Secretary's motions are granted.

(2)
Each side shall bear its own costs.

FOR THE COURT

DEC 1 7 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:

Fred R. Williams Eric Bruskin, Esq.

PILED U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT

s19

DEC 17 2009

ISSUED

AS A MANDATE: DEC 1 7 2009

JAN HORBALY CLERK

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