NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SUSAN R. FRASIER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7070
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-3545, Chief Judge William P.
Greene, Jr.
___________________________
Decided: January 13, 2011
___________________________
SUSAN R. FRASIER, Albany, New York, pro se.
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. On the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, KIRK T.
MANHARDT, Assistant Director, and STACEY K. GRIGSBY,
FRASIER v. DVA 2
Trial Attorney. Of Counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and
KRISTIANA BRUGGER, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
PER CURIAM.
Ms. Susan R. Frasier appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that granted the Secretary of Veterans
Affairs’ (“Secretary”) motion to dismiss for lack of jurisdic-
tion. Frasier v. Shinseki, No. 08-3545, 2009 WL 4064715
(Vet. App. Nov. 25, 2009). Because the Veterans Court
did not deprive Ms. Frasier of her procedural due process
rights and properly dismissed Ms. Frasier’s appeal based
on the Board of Veterans’ Appeals’ (“Board”) order re-
manding the case to the Department of Veterans Affairs
(“VA”) Regional Office in New York, New York (“Regional
Office”), we affirm.
BACKGROUND
Ms. Frasier served on active duty from June 1970 to
August 1972. She seeks service connection for numerous
conditions that she allegedly suffers, including asthma,
tinnitus, endometriosis, ovary removal, skin problems,
gastrointestinal disease, crippling muscular mobility
disease, and general anxiety disorder.
On August 28, 2008, the Board found that new and
material evidence was submitted for Ms. Frasier’s claims
for a skin disorder, gastrointestinal disability, and psy-
chiatric disability other than post-traumatic stress disor-
der (“PTSD”). Thus, the Board remanded the case to the
Regional Office to reopen these three claims. The Board
3 FRASIER v. DVA
also remanded to readjudicate the issue of entitlement to
service connection for PTSD. On September 3, 2008, Ms.
Frasier filed a Motion for Reconsideration in which she
denied submitting a claim for PTSD. Thus, on October
14, 2008, the Board vacated the portion of its August 28,
2008 order related to PTSD.
On October 28, 2008, Ms. Frasier appealed the
Board’s August 28, 2008 and October 14, 2008 orders to
the Veterans Court. Frasier, 2009 WL 4064715, at *1; On
December 30, 2008, the Secretary moved for an extension
of time to file the record before the agency, which the
Clerk of the Veterans Court (“Clerk”) granted on the same
day.
On February 9, 2009, the Secretary moved to dismiss
the appeal for lack of jurisdiction and to stay the case
based on the pending motion to dismiss. The Clerk
granted the Secretary’s motion to stay on the same day
that it was filed. On February 24, 2009, the Veterans
Court ordered Ms. Frasier to “show cause, within 20 days
of [the court’s] order, why this appeal should not be dis-
missed for lack of jurisdiction.” On March 12, 2009, Ms.
Frasier responded to the court’s order. On April 29, 2009,
Ms. Frasier filed a Motion for Leave to Proceed that was
construed as a motion for leave to file an additional
response to the court’s order. On May 1, 2009, Ms. Fra-
sier filed a Supplemental Statement to her Motion for
Leave to Proceed that was construed as another addi-
tional response to the court’s order.
On November 25, 2009, Chief Judge Greene of the
Veterans Court granted Ms. Frasier’s motion and sup-
plemental statement, construing them as a motion for
leave to file an additional response. Frasier, 2009 WL
4064715, at *1. Chief Judge Greene also dismissed Ms.
Frasier’s appeal for lack of jurisdiction because the Board,
FRASIER v. DVA 4
in remanding certain issues to the Regional Office, had
not rendered a final decision. Id.
On December 14, 2009, Ms. Frasier filed a Motion for
Reconsideration by the full Veterans Court. On March
15, 2010, Chief Judge Greene ordered the Clerk to return
Ms. Frasier’s motion to her because the motion was
prohibited by the court’s rules. VET. APP. R. 35(C) (“A
motion for a decision by the full Court in a case decided
only by a single judge is not permitted.”).
Ms. Frasier timely appealed the Veterans Court’s de-
cision to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Forshey v. Principi, 284 F.3d
1335, 1338 (Fed. Cir. 2002). Under 38 U.S.C. § 7292(a),
this court has jurisdiction over rules of law or the validity
of any statute or regulation, or an interpretation thereof,
relied on by the Veterans Court in its decision. This court
may also interpret constitutional and statutory provisions
as needed for resolution of the matter. 38 U.S.C. §
7292(c). In contrast, except where an appeal presents a
constitutional question, 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).
Ms. Frasier argues that her constitutional due process
rights were violated in the handling of this case. Specifi-
cally, she argues that the Board’s remand order was
deliberately falsified, the Veterans Court deprived her of
an opportunity to file a brief, and ex parte rulings by the
Clerk were made contrary to the Rules of Practice and
Procedure of the Veterans Court (“Rules of Practice”).
The Fifth Amendment of the United States Constitution
5 FRASIER v. DVA
provides that “No person shall . . . be deprived of life,
liberty, or property, without due process of law . . . .” U.S.
CONST. amend. V. “The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)). Ms. Frasier was not deprived
of her constitutional right to due process.
First, the Board’s order remanding the case back to
the Regional Office to reopen Ms. Frasier’s claims did not
violate Ms. Frasier’s rights. Ms. Frasier’s allegation that
the order was “deliberately falsified” is wholly without
merit or support. Further, the Board’s remand order that
was based on the submission of new and material evi-
dence actually preserves Ms. Frasier’s due process rights
by requiring the Regional Office to consider all of the
evidence and allowing her to make new arguments re-
garding the facts relevant to this case. Thus, Ms. Frasier
has not presented a constitutional question regarding the
Board’s remand order that this court has jurisdiction to
review.
Second, the Veterans Court did not deprive Ms. Fra-
sier of her due process rights by preventing her from filing
her Motion for Leave to Proceed or her Supplemental
Statement to her Motion for Leave to Proceed. Directly
contrary to Ms. Frasier’s assertion, the Veterans Court
granted her motion and supplemental statement, constru-
ing them as a motion for leave to file an additional re-
sponse. Frasier, 2009 WL 4064715, at *1. Thus, the
Veterans Court’s acceptance of Ms. Frasier’s filings al-
lowed her to make additional, substantive arguments and
gave her another opportunity to be heard. Further, even
though the Veterans Court’s February 24, 2009 show
cause order required a response within twenty days of the
order, the Veterans Court still permitted Ms. Frasier’s
FRASIER v. DVA 6
filings more than two months after the order on April 29,
2009 and May 1, 2009. See id.
Third, the Clerk did not violate Ms. Frasier’s constitu-
tional due process rights by granting the Government’s
motion to stay the proceedings and motion for extension of
time on the day that each motion was filed without a
response from Ms. Frasier. Rule 27 of the Rules of Prac-
tice states that “motions for procedural orders may be
acted on at any time, without awaiting a response, and,
by rule or order of the Court, motions for certain proce-
dural orders may be disposed of by the Clerk. . . . Any
party who may be adversely affected by the action may,
by motion, request that the Court reconsider, vacate, or
modify the action not later than 10 days after the action is
announced.” VET. APP. R. 27(C); see also VET. APP. R.
5(1)(a)(B) (“On its own initiative or on a party’s motion,
the Court may stay its proceedings when—it is . . . in the
interest of judicial efficiency . . . .”). Thus, the Clerk acted
within the Rules of Practice when granting the Govern-
ment’s motions. The Rules of Practice also afforded Ms.
Frasier the opportunity to contest the procedural orders,
but she did not utilize that opportunity. Additionally,
neither of the Clerk’s orders deprived Ms. Frasier of her
due process rights because they were not based on the
merits of the case. See Stone v. Fed. Deposit Ins. Corp.,
179 F.3d 1368, 1377 (Fed. Cir. 1999) (“Only ex parte
communications that introduce new and material infor-
mation to the deciding official will violate the due process
guarantee of notice.”)
After finding that Ms. Frasier’s constitutional rights
to due process were not violated, we turn to the merits of
the Veterans Court’s order. Under 38 U.S.C. § 7252(a),
the Veterans Court has exclusive jurisdiction to review
decisions of the Board. The Board’s decisions must in-
clude “an order granting appropriate relief or denying
7 FRASIER v. DVA
relief” under 38 U.S.C. § 7104(d)(2). A remand decision
that does not contain an order granting or denying relief
is not appealable. Kirkpatrick v. Nicholson, 417 F.3d
1361, 1364 (Fed. Cir. 2005); see also Howard v. Gober, 220
F.3d 1341, 1344 (Fed. Cir. 2000) (“[T]he 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 jurisdic-
tion to consider it under section 7252(a).” (quoting
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998))).
Because the Board’s decision to remand the case to the
Regional Office was not an appealable decision, the Vet-
erans Court properly held that it lacked jurisdiction to
review an appeal of that decision.
CONCLUSION
Accordingly, because Ms. Frasier’s constitutional due
process rights were not violated, and because the Veter-
ans Court properly dismissed her appeal for lack of juris-
diction, we affirm.
No Costs.