Ramirez v. Wilkie

• Court: Court of Appeals for the Federal Circuit
• Decided: March 3, 2020
• Docket: 20-1002
• Status: Unpublished

Opinion

Case: 20-1002 Document: 31 Page: 1 Filed: 03/03/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

SUELY RAMIREZ, FKA SUELY RAMIREZ-DIAZ, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1002 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3162, Senior Judge Robert N. Davis. ______________________

Decided: March 3, 2020 ______________________

SUELY RAMIREZ, New York, NY, pro se.

ASHLEY AKERS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent-appellee. Also represented by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT EDWARD KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel, United States De- partment of Veterans Affairs, Washington, DC. Case: 20-1002 Document: 31 Page: 2 Filed: 03/03/2020

______________________

Before LOURIE, SCHALL, and CHEN, Circuit Judges. PER CURIAM. Suely Ramirez appeals from an order of the Court of Appeals for Veterans Claims (“the Veterans Court”) dis- missing her appeal from a decision of the Board of Veter- ans’ Appeals (“the Board”) denying her claim of entitlement to Dependents’ Educational Assistance for lack of jurisdic- tion. See Ramirez-Diaz v. Wilkie, No. 18-3162, 2019 WL 982884 (Vet. App. March 1, 2019) (“Decision”). Because this appeal presents no statutory or constitutional issues, we conclude that we lack jurisdiction and accordingly dis- miss the appeal. BACKGROUND Suely Ramirez is the daughter of Luis Ramirez, a vet- eran who served in the Marine Corps from 1969 to 1970. Luis Ramirez died in 2002, and thereafter Suely Ramirez requested Dependents’ Educational Assistance under Chapter 35 of Title 38 of the U.S. Code. The Board denied her claim on July 28, 2017, and Ramirez filed a motion for reconsideration by the Board on November 11, 2017. On June 18, 2018, prior to a ruling by the Board on her motion for reconsideration, Ramirez appealed the Board’s decision to the Veterans Court. The court observed that under its precedent the finality of a Board decision is abated when a veteran files a motion for reconsideration within 120 days of the Board’s decision. Decision at *1 (cit- ing Rosler v. Derwinski, 1 Vet. App. 241 (1991)). The court determined that it lacked jurisdiction over the appeal be- cause the Board decision was not yet final due to Ramirez’s pending motion for reconsideration and dismissed the ap- peal. Id. The court also noted that Ramirez may appeal the underlying Board decision by filing a new notice of Case: 20-1002 Document: 31 Page: 3 Filed: 03/03/2020

RAMIREZ v. WILKIE 3

appeal within 120 days of the Board’s decision on her mo- tion for reconsideration. Ramirez timely appealed the Veterans Court’s dismis- sal of her appeal as premature. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited. We may review the validity of a decision of the Veterans Court with respect to a rule of law or inter- pretation of a statute or regulation relied on by the Veter- ans Court in its decision. 38 U.S.C. § 7292(a). However, except with respect to constitutional issues, we may not re- view challenges to factual determinations or challenges to the application of a law or regulation to the facts of a par- ticular case. Id. § 7292(d)(2). In considering whether an appeal falls within our jurisdiction, we look to the sub- stance of the issues presented rather than a party’s char- acterization of the question. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). The Veterans Court has exclusive jurisdiction to review decisions of the Board. 38 U.S.C. § 7252(a). To obtain re- view of a decision of the Board, a notice of appeal must be filed at the Veterans Court within 120 days of mailing of the Board’s decision. 38 U.S.C. § 7266(a). Instead of im- mediately seeking review of a Board decision by the Veter- ans Court, a claimant may request reconsideration by the Board. See 38 C.F.R. § 20.1001. When a motion for recon- sideration is filed within 120 days of the mailing date of a Board decision, the period for filing a notice of appeal is tolled and the finality of the Board’s decision is abated until the motion is decided. See Linville v. West, 165 F.3d 1382, 1385–86 (Fed. Cir. 1999) (citing Rosler, 1 Vet. App. 241). If the motion for reconsideration is denied, a new 120-day pe- riod for filing a notice of appeal begins. Id. at 1385. On appeal, Ramirez primarily argues the merits of the underlying Board decision and does not appear to address Case: 20-1002 Document: 31 Page: 4 Filed: 03/03/2020

the issue of the Veterans Court’s jurisdiction. The govern- ment argues that this court lacks jurisdiction to review the Veterans Court’s decision because it was limited to the is- sue of the Veterans Court’s jurisdiction and did not address any statute, regulation, or constitutional issue. We agree with the government that we lack jurisdic- tion to review the Veterans Court’s decision that the appeal was premature. The court’s decision did not address the validity or interpretation of any statute or regulation or any constitutional issue. Rather, in dismissing Ramirez’s appeal, the court merely applied established law concern- ing the procedures for timely filing a notice of appeal to Ramirez’s pending motion for reconsideration before the Board. Specifically, the court determined that the motion for reconsideration was timely filed within 120 days of the Board’s decision and had not been decided, and therefore the Board’s decision was not final and could not yet be re- viewed. Although Ramirez challenges the merits of the Board’s decision, those arguments are beyond our jurisdiction be- cause the decision of the Veterans Court presently on ap- peal was limited to jurisdictional issues. As noted by the Veterans Court, Ramirez can appeal the merits of the Board’s decision if her motion for reconsideration is denied by the Board. CONCLUSION We have considered Ramirez’s remaining arguments but find them unpersuasive. For the foregoing reasons, we dismiss the appeal for lack of jurisdiction. DISMISSED COSTS No costs.