Error: Bad annotation destination
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7360
MANUELA A. BAGUIOEN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Manuela A. Baguioen, of Philippines, pro se.
Patrick B. Bryan, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him on
the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and
William F. Ryan, Assistant Director. Of counsel on the brief were Michael J. Timinski,
Deputy Assistant General, and Jamie L. Mueller, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeal for the Federal Circuit
2006-7360
MANUELA A. BAGUIOEN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: February 26, 2007
__________________________
Before RADER, GAJARSA, Circuit Judges and O’ MALLEY, * District Judge.
PER CURIUM
Ms. Manuela A. Baguioen appeals the June 6, 2006 decision of the United States
Court of Appeals for Veterans Claims (Veterans Court), Baguioen v. Nicholson, No. 06-
88 (Vet. App. 2006), dismissing as untimely her appeal of a decision of the Board of
Veterans' Appeals. Ms. Baguioen had sought benefits based on the death of her
* Honorable Kathleen O’ Malley, District Judge, Ohio Northern District Court,
sitting by designation.
husband, a veteran. Because we do not have a statutory grant of jurisdiction to rule on
this appeal, we must dismiss the appeal.
I
On August 19, 2005, the Board issued a final decision denying Ms. Baguioen's
claim for dependency and indemnity compensation (DIC) based on clear and
unmistakable error. Attached to the decision, the Board included a notice informing Ms.
Baguioen of the steps necessary to appeal the Board's decision.
On January 10, 2006, more than 120 days after the board mailed its decision.
Ms. Baguioen filed a notice of appeal with the Veterans Court. On January 27, 2006,
the clerk of the Veterans Court issued Ms. Baguioen an order noting that the Veteran's
Court cannot review a decision of the Board unless the notice of appeal is filed with the
court within 120 days after Board has mailed its decision. The court asked Ms.
Baguioen to explain her delay. The order gave Ms. Baguioen 50 days to respond. On
March 14, 2006, the Veterans Courts received Ms. Baguioen‘s response. In the
response, Ms. Baguioen argued that the "time limit of adjudicating her case should not
be prejudiced because the Pro Bono Program had already accepted [her]
representation before the [Veterans Court] under the Equal Access to Justice Act.” On
March 17, 2006, the Veterans Consortium Pro Bono Program (Veterans Consortium)
moved to the stay proceedings until May 1, 2006 to evaluate whether it wished to
represent Ms. Baguioen. The Veterans Court granted the motion on March 23, 2006.
On June 6 2006, the Veterans Court dismissed Ms. Baguioen’s Appeal. In its
opinion, the Veterans Court noted that Ms. Baguioen had not justified her untimely
appeal. The court also declined to apply equitable tolling.
2006-7360 2
II
In reviewing a Veterans Court decision, this court must decide “all relevant
questions of law, including interpreting constitutional and statutory provisions” and set
aside any regulation or interpretation thereof “ other than a determination as to a factual
matter” relied upon by the Veterans Court that is “(A) arbitrary, capricious, an abuse of
discretion, or otherwise accordance with law; (B) contrary to constitutional right, power
privilege or immunity; (C) in excess of statutory jurisdictions, authority or limitation ,or in
violation of a statutory right; or (D) without observance of procedure required by law. 38
U.S.C Section 7292(d)(1) (2006). To obtain review by the Veterans Court of a final
decision of the Board of Veterans' Appeals, a party must file within 120 after the date on
which notice of the decision is mailed. 38 U.S.C. § 7266(a).
The Board issued its final decision denying Ms. Baguioen's DIC claim on August
6, 2005. Thus, to preserve her right to appeal Ms. Baguioen needed to file her notice of
appeal with the Veterans Court by December 17, 2005. Ms. Baguioen, however, filed
her notice of appeal to the Veteran Court on January 10, 2006, 144 days from the date
of the final decision of the board.
Rather than immediately dismissing the notice of appeal as untimely, the
Veterans Court granted Ms. Baguioen 50 days to explain why Veterans Court should
not dismiss her appeal. The Veterans Court further granted the Veterans Consortium
an additional 45 day stay. At no time did Ms. Baguioen bring forward evidence
demonstrating that her notice of appeal was timely or explaining her error. The
Veterans Court further noted the record was devoid of any evidence to suggest that
equitable tolling would be appropriate.
2006-7360 3
In her appeal to this court, Ms. Baguioen has not pointed to any allegedly
incorrect regulatory, statutory, or constitutional interpretation. Ms. Baguioen has failed
to state a claim over which this Court has jurisdiction and her appeal must therefore be
dismissed.
2006-7360 4