Tootle v. Shulkin , 707 F. App'x 709 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMUEL E. TOOTLE, II,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1787
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3114, Judge Coral Wong
Pietsch.
______________________
Decided: September 8, 2017
______________________
SAMUEL E. TOOTLE, II, Biloxi, MS, pro se.
ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., L. MISHA PREHEIM; Y. KEN LEE, LARA EILHARDT, Office
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
2 TOOTLE v. SHULKIN
______________________
Before PROST, Chief Judge, WALLACH and TARANTO,
Circuit Judges.
PER CURIAM.
Appellant Samuel E. Tootle II appeals the decision of
the U.S. Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing his appeal for want of jurisdiction
because the Board of Veterans’ Appeals (“the Board”) had
not yet entered a final decision. Tootle v. Snyder, No. 16-
3114, 2017 WL 360717, at *1 (Vet. App. Jan. 25, 2017).
Because we also lack jurisdiction, we dismiss.
BACKGROUND
Mr. Tootle sought compensation for service-connected
injuries. When a Department of Veterans Affairs (“VA”)
regional office notified Mr. Tootle of an adverse decision in
his case, Mr. Tootle filed a notice of disagreement, and the
VA regional office responded with a statement of the case
explaining its prior decision. See Resp’t’s App. 21. Mr.
Tootle thereafter submitted to the VA regional office his
appeal to the Board. Id. On May 31, 2016, the VA re-
gional office sent a letter to Mr. Tootle indicating that it
could not accept his substantive appeal because “the time
limit to continue [his] appeal ha[d] passed.” Id. The VA
regional office further explained that Mr. Tootle had
failed to submit his appeal to the Board “no later than one
year following notification of [the] adverse decision [he
was] appealing, or 60 days from the date [the VA’s]
Statement of the Case was sent to [him], whichever [wa]s
later.” Id.Mr. Tootle appealed to the Veterans Court contesting
an alleged May 31, 2016 decision by the Board. See
Tootle, 2017 WL 360717, at *1. The Secretary informed
the Veterans Court “that [Mr. Tootle] had not obtained a
final Board decision and that no decision dated May 31,
TOOTLE v. SHULKIN 3
2016, was issued by the Board,” and the Veterans Court
dismissed his appeal because “no final decision ha[d] been
issued by the Board,” as required for jurisdiction, id.; see
id. (“[Mr. Tootle] agrees that the Board did not issue a
decision dated May 31, 2016.”). Mr. Tootle sought recon-
sideration, but the Veterans Court denied his request.
Resp’t’s App. 4. Mr. Tootle appeals.
DISCUSSION
The jurisdiction of this court to review decisions of the
Veterans Court is limited by statute. See 38 U.S.C.
§ 7292 (2012); Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We “have exclusive jurisdiction to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof brought under
[§ 7292], and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(c). “Except to the extent that
an appeal . . . presents a constitutional issue, [we] 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.” Id. § 7292(d)(2).
Mr. Tootle does not challenge the validity or interpre-
tation of any statutes, see generally Appellant’s Br.,
including those conferring jurisdiction on the Veterans
Court, see 38 U.S.C. § 7252(a) (conferring exclusive juris-
diction “to review decisions of the Board”); id. § 7266(a)
(explaining that the Veterans Court may review “final
decision[s] of the Board” (emphasis added)). Similar to
the situation in James v. Shinseki, the Veterans Court’s
decision here “rests solely on its factual determination
that [the Appellant] identified no final decision from
which he was appealing, thereby failing to satisfy the
requirement of . . . § 7266(a).” 504 F. App’x 919, 920 (Fed.
Cir. 2013); see Tootle, 2017 WL 360717, at *1. “Because
we do not have jurisdiction to review the Veterans Court’s
factual determinations or application of the law to facts,
4 TOOTLE v. SHULKIN
we are also without jurisdiction to review the propriety of
its decision to dismiss the case.” James, 504 F. App’x at
920.
Instead, Mr. Tootle raises various factual challenges,
such as the Veterans Court’s “fail[ure] to interpret and
issue a ruling on whether [the organization providing
legal counsel to Mr. Tootle before the VA regional office]
abandoned their statutory duty to represent [him].”
Appellant’s Br. Attach. at 1. He also raises factual issues
of whether the VA “refused to allow the Board . . . to make
the final decision on [his] appeal of the VA[’s] previous
decision[]” and whether the VA “fail[ed] to serve [him]
with their dispositive motion in a timely manner.” Id. As
discussed above, we lack jurisdiction to review such
matters. See 38 U.S.C. § 7292(d)(2).
Additionally, Mr. Tootle avers, without further expla-
nation, that the Veterans Court’s “decision was arbitrary
and capricious and [an] abuse of discretion when [it]
denied [Mr. Tootle] his [c]onstitutional [r]ight to [d]ue
[p]rocess of the law.” Appellant’s Br. Attach. at 1. His
challenge, which repeats his earlier arguments that the
Veterans Court acted arbitrarily by dismissing his case,
“is constitutional in name only,” and Mr. Tootle’s “charac-
terization of that question as constitutional in nature does
not confer upon us jurisdiction that we otherwise lack.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
CONCLUSION
We have considered Mr. Tootle’s remaining argu-
ments and find them unpersuasive. Accordingly, Mr.
Tootle’s appeal from the U.S. Court of Appeals for Veter-
ans Claims is
DISMISSED
COSTS
Each party shall bear its own costs.