John Nicholas v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

2010-7018

JOHN NICHOLAS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
case no. 09-1299, Judge Alan G. Lance, Sr.

ON MOTION

Before MICHEL, Chief Judge, FRIEDMAN 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 John Nicholas' appeal or in the alternative
moves for summary affirmance. Nicholas moves for leave to file a corrected informal
brief.

The United States Court of Appeals for Veterans Claims dismissed Nicholas'
appeal for lack of jurisdiction. Specifically, the court determined that Nicholas had failed
to file a notice of appeal at the court within the 120-day statutory time period for seeking
review from the date of a Board of Veterans' Appeals decision, and that the court lacked
jurisdiction to review the Board's order denying reconsideration. Nicholas filed an
appeal with this court seeking review of that decision.

<!-- PageBreak -->

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).

In his informal brief, Nicholas appears to argue only that the Board failed to
properly weigh the evidence related to his claim. Because that argument pertains only
to issues of fact or application of law to fact and to issues that are not before us, we are
without jurisdiction. To the extent that Nicholas seeks to challenge whether the Court of
Appeals for Veterans Claims correctly determined that it lacked jurisdiction over his
appeal, we summarily affirm. We thus grant the Secretary's motion to dismiss in part
and affirm in part.

Accordingly,

IT IS ORDERED THAT:

(1)
The Secretary's motions are granted. All other motions are moot.

(2)
Each side shall bear its own costs.

FOR THE COURT

MAY 0 3 2010

/s/ Jan Horbaly

Date

Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 08 2010

<!-- PageFooter="2010-7018" -->

JAN HORBALY
CLERK

<!-- PageBreak -->

cc:
John Nicholas
Tara K. Hogan, Esq.

s19

<!-- PageFooter="2010-7018" -->