Fed.Court of Appeals / this sucks we loose again
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Subject: Fed.Court of Appeals / this sucks we loose again
VETERANS RESOURCES NETWORK
Below is a U.S. Court of Appeals for the Federal Circuit case; Howard v
Gober, decided August 4, 2000.
Basically the U.S. Court of Appeals for Veterans Claims (CAVC) lacks
Jurisdiction where the Board of Veterans Appeals has not issued a "final
decision". Only after the final decision should the claim be
Also The Federal Appeals Court refused to hear an argument that had not been
raised before the CAVC.
1. Wait for a final BVA denial before appealing to the CAVC.
2. Raise any and all issues at the BVA level and at the CAVC level, So the
Federal Appeals Court will have Jurisdiction.
The Board of Veterans Appeals often appears to delay and obstruct a veterans
claim, and until they run out of road, they keep delaying. And there is
one thing a veteran can do to go around the BVA, nor hurry them up.
Ray B. Davis, Jr.
##### START #####
United States Court of Appeals for the Federal Circuit
DANIEL R. HOWARD,
HERSHEL W. GOBER, Acting Secretary of Veterans Affairs,
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
Gerald M. Alexander, Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, of Washington, DC, argued for respondent- appellee.
On the brief were David W. Ogden, Acting Assistant Attorney General; David
M. Cohen, Director; Kathryn A. Bleecker, Assistant Director; and Agnes M.
Brown, Attorney. Of counsel on the brief were Richard J. Hipolit, Deputy
Assistant General Counsel; and Y. Ken Lee, Attorney, Department of Veterans
Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge Frank Q. Nebeker
United States Court of Appeals for the Federal Circuit
Daniel R. howard,
HERSHEL W. GOBER, Acting Secretary of Veterans Affairs,
DECIDED: August 4, 2000
Before MICHEL, LOURIE, and RADER, Circuit Judges.
LOURIE, Circuit Judge.
Daniel R. Howard appeals from the decision of the United States Court of
Appeals for Veterans Claims dismissing his appeal for lack of jurisdiction.
See Howard v. West, No. 99-166 (CAVC June 25, 1999) (order) ("Howard
Because we conclude that the court did not err in dismissing Howard's
appeal, and because Howard improperly raises an issue that was not raised
before the Court of Appeals for Veterans Claims, we affirm-in-part and
Mr. Howard is a Vietnam veteran who served on active duty from September
1966 to January 1970. See Howard v. West, No. 97-14 044, slip op. at 1, 3
(BVA Oct. 9, 1998) ("Howard I"). On February 19, 1991, the
Veterans Affairs Regional Office ("RO") denied his claim for service
connection for post-traumatic stress disorder ("PTSD"), and in June
the RO issued a decision denying Howard's attempt to reopen his claim, see
id. at 2. Howard appealed from the June 1996 decision to the Board of
Veterans' Appeals, arguing that new and material evidence had been submitted
to reopen his PTSD claim. See id. at 1; see also 38 C.F.R. § 3.156 (1999)
("New and material evidence"). Howard also appealed from the
decision, arguing that that decision was infected with clear and
unmistakable error ("CUE"). It is unclear from the record whether
appeals were brought before the Board individually or in a consolidated
fashion. In any event, on October 9, 1998, the Board remanded, instructing
the RO to evaluate the evidence proffered by the veteran in support of his
attempt to reopen his June 1996 PTSD claim. See Howard I, slip op. at 2-6.
The Board's decision, however, did not address Howard's claim of CUE in the
February 1991 RO decision.
Howard appealed to the Court of Appeals for Veterans Claims, requesting that
the court instruct the Board to address his CUE claim. The court dismissed
Howard's appeal, holding that it lacked jurisdiction because the Board had
not rendered a final decision regarding the CUE claim. See Howard II, slip
op. at 1. The court further held that even if his appeal were treated as a
petition for mandamus, that petition would fail because there was not
basis for the [c]ourt to conclude that the CUE matter [would] not be
addressed by the Board in due course," and thus Howard had failed to
that he had exhausted his administrative remedies. Id.
Howard appealed from the decision of the Court of Appeals for Veterans
Claims to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.
Pursuant to 38 U.S.C. § 7292, our jurisdiction to review a decision of the
Court of Appeals for Veterans Claims is highly circumscribed. See Glover v.
West, 185 F.3d 1328, 1331 (Fed. Cir. 1999). Under that statute, we may
review a decision "with respect to the validity of any statute or
. . . or any interpretation thereof (other than a determination as to a
factual matter) that was relied on by the Court in making the decision."
U.S.C. § 7292(a) (Supp. IV 1998). "Except to the extent that an appeal
presents a constitutional issue, we may not review a challenge to a factual
determination or a challenge to a law or regulation as applied to the facts
of a particular case." Bowey v. West, No. 2000 WL 963826, at *2 (Fed.
July 13, 2000) (citing 38 U.S.C. § 7292(d)(2) (1994)). Whether the Court of
Appeals for Veterans Claims possessed jurisdiction over Howard's appeal is
an issue of statutory construction, see Ledford v. West, 136 F.3d 776, 778
(Fed. Cir. 1998) (citing 38 U.S.C. § 7252 (Supp. IV 1998)), that we review
without deference, see Hensley v. West, 212 F.3d 1255, 1259 (Fed. Cir.
Howard argues that the Court of Appeals for Veterans Claims erred in
dismissing his appeal based on an erroneous interpretation of 38 U.S.C. §
7252(a), the statute conferring jurisdiction on that court over appeals from
Board decisions. Howard specifically contends that the court erroneously
incorporated an exhaustion requirement into section 7252, and he asserts
that, in any event, he satisfied that requirement by raising the issue
before the Board. Howard also argues that by dismissing his appeal, the
court misinterpreted 38 U.S.C. § 7261, which requires it to "compel
of the Secretary unlawfully withheld or unreasonably delayed." In short,
Howard contends that the court's decision leaves him in "appellate
without Board adjudication of his CUE claim and without appellate remedy
from the court to compel the Board to address that claim.
The Secretary responds that the Court of Appeals for Veterans Claims
properly dismissed Howard's appeal under a correct interpretation of section
7252(a). The Secretary indicates that this court has interpreted section
7252(a) to confer jurisdiction on the Court of Appeals for Veterans Claims
over final Board decisions, and because there was no final Board decision
with respect to Howard's CUE claim, the court had no jurisdiction to
consider it. The Secretary further contends that the court did not
incorporate an exhaustion requirement into section 7252(a), but merely
discussed Howard's failure to comply with that requirement in rejecting what
it perceived as Howard's request for mandamus relief. Lastly, the Secretary
asserts that Howard's remaining contentions, such as whether he did in fact
exhaust his administrative remedies, constitute application of law to fact,
which are beyond this court's jurisdiction.
We agree with the Secretary that the Court of Appeals for Veterans Claims
correctly dismissed Howard's appeal under a proper interpretation of section
7252. Section 7252 provides in relevant part as follows:
§ 7252. Jurisdiction; finality of decisions
(a) The Court of Appeals for Veterans Claims shall have exclusive
jurisdiction to review decisions of the Board of Veterans' Appeals. The
Secretary may not seek review of any such decision. The Court shall have
power to affirm, modify, or reverse a decision of the Board or to remand the
matter, as appropriate.
38 U.S.C. § 7252(a) (Supp. IV 1998). As we explained in Ledford, the Court
of Appeals for Veterans Claims' jurisdiction "is premised on and defined
the Board's decision concerning the matter being appealed," and when the
Board has not rendered a decision on a particular issue, the court has no
jurisdiction to consider it under section 7252(a). See Ledford, 136 F.3d at
As we noted supra, from a procedural standpoint, it is unclear to us whether
Howard appealed from the two RO decisions in one consolidated appeal to the
Board or whether he appealed from those two decisions separately. Either
way, the Board has not yet rendered a final decision on the CUE claim that
may be appealed to the Court of Appeals for Veterans Claims. If the two
decisions were appealed together, and the Board simply did not address the
CUE claim, the Board's remand does not constitute a final decision that may
be appealed. See 38 C.F.R. § 20.1100(b) (1999) (providing that "[a]
is in the nature of a preliminary order and does not constitute a final
decision of the Board"). If the RO decisions were appealed separately,
Howard fails to point to any independent final decision by the Board of his
CUE claim. Accordingly, the Court of Appeals for Veteran Claims correctly
held that it lacked jurisdiction to consider the CUE claim. See Ledford, 136
F.3d at 779; Mayer v. Brown, 37 F.3d 618, 619 (Fed. Cir. 1994) (stating that
the Court of Appeals for Veterans Claims "has jurisdiction only when the
appellant files a timely appeal from a final decision of the [B]oard.")
(emphasis added), overruled on other grounds by Bailey v. West, 160 F.3d
1360 (Fed. Cir. 1998) (en banc). We therefore affirm its dismissal.
While Howard contends that the Court of Appeals for Veterans Claims erred in
interpreting section 7252(a) by erroneously incorporating an exhaustion
requirement into that statute, that argument misreads the court's decision.
The court mentioned exhaustion in the context of mandamus, not its
interpretation of section 7252(a). See Howard II, slip op. at 1. Moreover,
as for Howard's argument that the Court of Appeals for Veterans Claims
misinterpreted section 7261 by not compelling the Board to render a decision
on his CUE claim, and his related "appellate limbo" argument based
alleged misinterpretation, examination of Howard's notice of appeal to that
court and his reply to the Secretary's motion to dismiss reveal that no
argument relating to section 7261 was ever raised before that court. Because
Howard did not raise that interpretation to the Court of Appeals for
Veterans Claims, and that court did not otherwise raise it sua sponte in its
decision, that interpretation of section 7261 could not have been "relied
on" by that court, see 38 U.S.C. § 7292(a) (Supp. IV 1998), and we thus
jurisdiction to consider it. See Smith v. West, 214 F.3d 1331, 1333-34 (Fed.
Cir. 2000); Belcher v. West, 214 F.3d 1335, 1336-37 & n.1 (Fed. Cir.
We therefore dismiss Howard's appeal on that issue. We have considered the
parties' other arguments but find them unpersuasive.
The Court of Appeals for Veterans Claims properly dismissed Howard's appeal
under 38 U.S.C. § 7252 because the Board of Veterans Appeals had not
rendered a decision regarding his CUE claim, and the court therefore lacked
jurisdiction to consider that claim. To the extent that Howard has raised an
issue before this court that he did not raise before the Court of Appeals
for Veterans Claims, we lack jurisdiction to consider it. We therefore
AFFIRM-IN-PART and DISMISS-IN-PART.
REMEMBER DISABLED VETERANS, GOT TO BE DISABLED VETERANS
PROTECTING YOU !!!!
I am In Protest of the unfair treatment of America's VETERANS by the VA &
the US Government.... I am sickened by the Lies,and the
Discrimination,taking place in this country today against our Veteran's..I
will VOTE for only those candidates that are for change in the way our
Government does business, And for only canditates that will fight for our
second amendment rights, And will fight for Veterans Rights, And will not
let the liberial press dictate US Government policy... I would hope you
would do the same...VOTE !!!!!!!!!
The US Government Lied and Continues to Lie to Veterans About Benefits and
Health Care, And The VA Still Continues to Discriminate Against America's
"THINKING ABOUT JOINING THE MILITARY ?? THINK AGAIN !! THE US GOVERNMENT
DOES NOT AND WILL NOT KEEP IT'S PROMISES MADE TO AMERICAS VETERANS ABOUT
BENEFITS AND HEALTH CARE"
IF IT WERE
NOT FOR AMERICAS VETERANS WE'D BE CALLING YOU COMRADE !!!!!!!!!!!!!!!!!!
STOP YOUR BITCH-EN AND WRITE TO YOUR CONGRESSMEN AND YOUR SENATORS AND BITCH
TO THEM, IF THAT DON'T WORK !! VOTE LIKE I DO !!! AND TOGETHER WE'LL
THERE ASSES !!!!!!!
ROBBERS,RAPERS AND EVEN DRUNK DRIVES HAVE MORE RIGHTS THAN VETERANS, THEY AT
LEAST GET A REAL TRIAL, THE JUSTICE VETERANS GET FROM THE VA IS!! SORRY
ABOUT YOUR CLAIM SIR:.......BUT !!!! WE LOST YOUR PAPERWORK!!!!
Whose flag are we under these days? Have you ever wondered? Why ??? The
MIAšs recently returned from Korea were draped, not in the US flag, to which
they swore allegiance to and died under, but the UN flag ?????. The UN also
wants our guns. I say hell NO and Kiss Off give the UN the boot it's not
needed anymore !!!!!! don't let the UN dictate to the US what they did in
Australia, they took all the guns from everybody except the crooks.....