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Subject: FW: 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

Dear Readers,

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 appealed.

Also The Federal Appeals Court refused to hear an argument that had not been

raised before the CAVC.

Lessons:

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 not

one thing a veteran can do to go around the BVA, nor hurry them up.

Your Editor,

Ray B. Davis, Jr.

##### START #####

United  States  Court of Appeals for the Federal Circuit

99-7194

DANIEL R. HOWARD,

Claimant-Appellant,

v.

HERSHEL W. GOBER, Acting Secretary of Veterans Affairs,

Respondent-Appellee,

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for

claimant-appellant.

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

99-7194

Daniel R. howard,

Claimant-Appellant,

v.

HERSHEL W. GOBER, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

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 II").

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

dismiss-in-part.

BACKGROUND

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 Department of

Veterans Affairs Regional Office ("RO") denied his claim for service

connection for post-traumatic stress disorder ("PTSD"), and in June 1996,

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 February 1991

decision, arguing that that decision was infected with clear and

unmistakable error ("CUE"). It is unclear from the record whether these

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 "any

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 prove

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.

DISCUSSION

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 regulation

. . . or any interpretation thereof (other than a determination as to a

factual matter) that was relied on by the Court in making the decision." 38

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. Cir.

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.

2000).

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 action

of the Secretary unlawfully withheld or unreasonably delayed." In short,

Howard contends that the court's decision leaves him in "appellate limbo"

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 by

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

779.

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] remand

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 on that

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 lack

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. 2000).

We therefore dismiss Howard's appeal on that issue. We have considered the

parties' other arguments but find them unpersuasive.

CONCLUSION

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

Veterans..............

"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 FIRE

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

MIA¹s 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.....