Henry J. Palmer v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit 2009-7098

HENRY J. PALMER,

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

ON MOTION
Appeal from the United States Court of Appeals for Veterans Claims in
08-2783, Judge John J. Farley, III.

Before SCHALL, PROST, 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 this appeal for lack of jurisdiction or, in the alternative, summarily
affirm the judgment of the United States Court of Appeals for Veterans Claims in Palmer
v. Peake, No. 08-2783. Palmer opposes.

Palmer appealed to the Court of Appeals for Veterans Claims from a February 1,
2008 letter from the Board of Veterans' Appeals granting his motion to advance his case
on the docket. The Court of Appeals for Veterans Claims dismissed the appeal, finding
that it lacked jurisdiction over Palmer's appeal of the February 1 letter because the letter
did not constitute a denial of his claim or an appealable final decision.

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Summary affirmance of a case is appropriate "when the position of one party is
so clearly correct as a matter of law that no substantial question regarding the outcome
of the appeal exists.") Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994).
Because we agree with the Court of Appeals for Veterans Claims that it lacked
jurisdiction to review Palmer's appeal of the February 1 letter, summary affirmance is
appropriate.

Accordingly,

IT IS ORDERED THAT:

(1)
The Secretary's motion to dismiss is denied. The motion for summary
affirmance is granted.

(2)
Any other motions are denied.

(3)
Each side shall bear its own costs.

FOR THE COURT

SEP - 2 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Henry J. Palmer
Kenneth S. Kessler, Esq.

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

$20

ISSUED AS A MANDATE:

SEP - 2 2009

SEP ~2 2009
JAN HORBALY
CLERK

2009-7098