James C. Leeper v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

JAMES C. LEEPER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2010-7068

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-3409.

## ON MOTION

Before RADER, Chief Judge, BRYSON and MOORE, Circuit
Judges.

PER CURIAM

## ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and dismiss James C.
Leeper's appeal in this case, or in the alternative moves to

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summarily affirm the judgment of the United States
Court of Appeals for Veterans Claims.

The United States Court of Appeals for Veterans
Claims dismissed James C. Leeper's appeal for lack of
jurisdiction. The court determined that Leeper failed to
exhaust his administrative remedies and concluded that
it could not exercise jurisdiction without a final Board of
Veterans' Appeals decision. Leeper filed an appeal with
this court seeking review of that decision.

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 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).

In his informal brief, Leeper appears to only contest
the effective date for his entitlement to service connected
disability compensation. However, because the Court of
Appeals for Veterans Claims dismissed Leeper's appeal in
that court for lack of jurisdiction and did not address the
merits of his claim for benefits, issues concerning Leeper's
claim for an earlier effective date are not before us. To
the extent that Leeper seeks to challenge whether the
Court of Appeals for Veterans Claims correctly deter-
mined that it lacked jurisdiction over his appeal, we
summarily affirm. When the Board has not rendered a
final and appealable decision on a particular matter, the
Court of Appeals for Veterans Claims has no jurisdiction

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to consider an appeal. 38 U.S.C. § 7266(a) (providing for
review of a final decision of the Board).

Accordingly,
IT IS ORDERED THAT:

(1) The Secretary's motion to dismiss is denied.

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

(3) Each side shall bear its own costs.

FOR THE COURT

AUG 2 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: James C. Leeper
Douglas G. Edelschick, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 02 2010

JAN HORBALY
CLERK