Winfred Miller v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

WINFRED MILLER,
Claimant-Appellant,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.

2010-7051

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1159, Judge Lawrence B.
Hagel.

## ON MOTION

Before GAJARSA, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.

## ORDER

Winfred Miller moves for an extension of time to file
his notice of appeal. Miller also submits his informal
opening brief. The Secretary of Veterans Affairs submits

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an informal response brief and moves to dismiss the
appeal for lack of jurisdiction. Miller replies.

The Court of Appeals for Veterans Claims entered
judgment on November 17, 2009. In proceedings before
that court, Miller was represented by counsel. On De-
cember 21, 2009, Miller, on his own behalf, submitted a
letter to the Court of Appeals for Veterans Claims stating
that his attorney had resigned as of November 5, 2009. In
the December 21 submission, Miller requested a 45-day
extension of time to file an appeal. The Court of Appeals
for Veterans Claims returned the papers to Miller because
the court records reflected that Miller was represented by
counsel and only counsel could file documents with the
court. Miller then filed a notice of appeal on January 20,
2010, 64 days after entry of judgment. On January 21,
2010, the Court of Appeals for Veterans Claims received
further correspondence from Miller indicating that his
former attorney was no longer representing him. The
Court of Appeals for Veterans Claims docket sheet cur-
rently reflects that Miller is proceeding pro se.

Because Miller's notice of appeal was filed more than
60 days after entry of judgment, it appears to be un-
timely. See 38 U.S.C. § 7292(a); Fed. R. App. P. 4(a)(1);
see also Griggs v. Provident Consumer Disc. Co., 459 U.S.
56, 61 (1982) ("It is well settled that the requirement of a
timely notice of appeal is 'mandatory and jurisdictional' ")
(citation omitted). In any event, even if we were to treat
Miller's December 21, 2009 letter to the clerk of the Court
of Appeals for Veterans Claims as a timely notice of
appeal, we would be required to dismiss this appeal
because Miller raises no issues within this court's juris-
diction.

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

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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 chal-
lenges 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 constitu-
tional question, this court lacks jurisdiction over chal-
lenges to factual determinations or laws or regulations as
applied to the particular case. 38 U.S.C. § 7292(d)(2).

Miller asserts in his brief that the Court of Appeals
for Veterans Claims failed to apply reasonable doubt to
the facts of his case and that that court erred in determin-
ing that the Board of Veterans' Appeals failure to consider
a treatise was harmless error. Miller also challenges the
weighing of evidence and asserts that he did not receive
an adequate hearing because, inter alia, it was not fully
recorded. Although Miller asserts that his arguments
involve regulations, statutes, and constitutional issues,
this court must look beyond the appellant's characteriza-
tion of the issues to determine whether they fall within
the jurisdiction of this court. Flores v. Nicholson, 476
F.3d 1379, 1382 (Fed. Cir. 2007); Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999). Here, Miller's arguments
ultimately challenge how the Board and the Court of
Appeals for Veterans Appeals weighed the facts and
applied the law to the facts, which are issues outside this
court's limited jurisdiction. The Secretary argues without
opposition that Miller did not raise his assertion about
the hearing when he was represented by counsel before
the Court of Appeals for Veterans Claims, and Miller does
not explain what evidence he might have been precluded
from presenting. In any event, we decline to review the
bare assertion of the issue here. Forshey, 284 F.3d 1335,
1358 (recognizing that this court will not usually recog-
nize exceptions to the requirement that a party repre-

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sented by counsel below must raise issues in that court
before seeking review by this court).

Accordingly,
IT IS ORDERED THAT:

(1) The appeal is dismissed.

(2) All pending motions are moot.

(3) Each side shall bear its own costs.

FOR THE COURT

NOV 15 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Winfred Miller
Kent C. Kiffner, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CY:017

NOV 15 2010

$8

JAN HORBALY
CLERK