Dominic Sabbia v. ERIC K. SHINSEKI., Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

2010-7025

DOMINIC SABBIA,

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. 09-697, Judge Mary J. Schoelen.

ON MOTION

Before MICHEL, Chief Judge, FRIEDMAN and LINN, Circuit Judges.
PER CURIAM.

## ORDER

The Secretary of Veterans Affairs moves to dismiss Dominic Sabbia's appeal
from the United States Court of Appeals for Veterans Claims' judgment in Sabbia v.
Shinseki, 09-697, for lack of jurisdiction.

On February 24, 2009, Sabbia filed a notice of appeal with the Court of Appeals
for Veterans Claims. Sabbia asserted that he was seeking review of a February 19,
2009 Board of Veterans' Appeals decision. The Court of Appeals for Veterans Claims
held that the Board had not issued a February 19, 2009 decision and that therefore it
lacked jurisdiction over Sabbia's appeal. 38 U.S.C. § 7266(a). Although that court had
not entered judgment by the date that the court received Sabbia's notice of appeal
seeking review by this court, it treated the document as filed on the date that it entered
judgment, i.e., August 11, 2009.

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Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from
decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284
F.3d 1335, 1338 (Fed. Cir. 2002) (en banc). 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." 38 U.S.C. § 7292(d)(2).

The issue in this case is whether the Board of Veterans' Appeals had issued a
final decision. That issue is a factual issue beyond this court's jurisdiction. Thus, this
appeal must be dismissed.

Accordingly,

IT IS ORDERED THAT:

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

(2)
Each side shall bear its own costs.

FOR THE COURT

MAR 2.3 2010

/s/ Jan Horbaly

Date

Jan Horbaly
Clerk

cc:
Dominic Sabbia
Jessica R. Toplin, Esq.

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

s20

ISSUED AS A MANDATE:
MAR 23 2010

MAR 2 3 2010

JAN HORBALY
CLERK

The Secretary asserts that the appeal should be dismissed because the
Court of Appeals for Veterans Claims had not entered judgment before Sabbia filed his
notice of appeal. As noted above, the Court of Appeals for Veterans Claims treated the
notice of appeal as being filed on the date that it entered judgment. In any event,
because we dismiss this appeal for lack of jurisdiction on a different ground, we need
not address the additional issue raised by the Secretary.

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