Lourdes M. Madden v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LOURDES M. MADDEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7152
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1464, Judge Bruce E. Kasold.
______________________
Decided: July 15, 2013
______________________
L OURDES M. MADDEN, Zambales, Philippines, pro se.
AUSTIN F ULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were S TUART F. D ELERY , Principal
Deputy Assistant Attorney General, J EANNE E. D AVIDSON,
Director, and T ODD M. HUGHES , Deputy Director. Of
counsel on the brief were D AVID J. BARRANS , Deputy
Assistant General Counsel, and CHRISTINA L. G REGG,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.

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LOURDES MADDEN v. SHINSEKI 2
______________________
Before M OORE, L INN, and O’MALLEY , Circuit Judges.
P ER CURIAM .
Lourdes M. Madden (“Madden”) appeals the order of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) dismissing her appeal. Madden v.
Shinseki, No. 11-1464, 2012 WL 1511771 (Vet. App. May
1, 2012). Because Madden raises no issue within this
court’s authority to review, this court dismisses the ap-
peal.
BACKGROUND
Madden filed a claim for certain benefits following the
death of her husband, who was a veteran. The Board of
Veteran’s Appeals (“Board”) ultimately denied her claim
for lack of evidence of service connection. More than 120
days after the decision of the Board, which is the statuto-
rily specified period for lodging an appeal, Madden ap-
pealed to the Veterans Court. The Veterans Court
reacted by issuing an order instructing her to explain why
her appeal should not be dismissed as untimely. Receiv-
ing no explanation from Madden, the Veterans Court
dismissed Madden’s appeal for failure to respond to the
court’s order. Madden appeals.
D ISCUSSION
Madden argues about the Board’s determination of no
service connection and the duty of the Department of
Veterans Affairs to notify and assist. She contends that
the Board failed to apply a statutory presumption relating
to exposure to Agent Orange and misapplied the Veterans
Claims Assistance Act of 2000.
The government argues that Madden’s contentions go
to the merits of the case rather than the procedural
ground of dismissal and that this court lacks jurisdiction
over the merits of the claim. The government argues that
this court lacks jurisdiction to review the Veterans

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LOURDES MADDEN v. SHINSEKI 3
Court’s decision not to equitably toll the time for filling an
appeal and that the Veterans Court was within its discre-
tion in applying its rule permitting dismissal for failure to
comply with an order.
Here, the Veterans Court dismissed Madden’s appeal
on procedural grounds for failing to comply with an order
requesting an explanation for Madden’s untimely appeal.
Madden’s arguments, rather than being directed to the
procedural basis for the Veterans Court’s dismissal, go to
the merits of the case, which were not decided by the
Veterans Court. Even if this court treats Madden’s ar-
guments as challenging the procedural decision of the
Veterans Court, however, Madden raises no issue over
which this court has the authority to review.
This court “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case,” unless the appeal
“presents a constitutional issue.” 38 U.S.C. § 7292(d)(2).
First, the present case involves at most a factual determi-
nation that equitable tolling was not warranted. Such a
factual determination is outside this court’s jurisdiction.
See Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir.
2000) (“The Court of Appeals for Veterans Claims in this
case specifically found that Leonard failed to timely file
her [notice of appeal] due to her own neglect and that the
statute of limitations could not therefore be tolled. In
order to reverse the court’s decision, we would have to
evaluate the facts and conclude otherwise. . . . Section
7292(d)(2) expressly bars us from reviewing challenges to
the application of law to the facts of a particular case. We
must therefore dismiss Leonard’s appeal for lack of sub-
ject matter jurisdiction.”).
Further, the Veterans Court’s Rule 38(b), cited by the
Veterans Court, states that “[f]ailure . . . to comply with
an order of the Court . . . may be grounds for . . . dismissal
of the appeal.” Because Madden provided no response to
the Veterans Court’s order and because the Veterans
Court made no ruling on equitable tolling, it is self-

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LOURDES MADDEN v. SHINSEKI 4
evident that the Veterans Court’s dismissal was nothing
more than the application of Rule 38(b) to the uncontested
facts of the case. Such an application is outside this
court’s jurisdiction. See Bastien v. Shinseki, 599 F.3d
1301, 1307 (Fed. Cir. 2010) (“The Veterans Court has
broad discretion to interpret and apply its Rules of Prac-
tice and Procedure. The Veterans Court ruling involved
either an application of its rule to the facts of Mrs. Bas-
tien’s case, which we have no jurisdiction to review, or an
interpretation of the rule, which was neither clearly
erroneous nor an abuse of discretion.” (citation omitted)).
For the foregoing reasons, this court dismisses the
appeal for lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.

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