Larry R. Kelly, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 33 F.3d 64 (Fed. Cir. 1994)

The Secretary of Veterans Affairs moves to dismiss Larry R. Kelly's appeal for lack of jurisdiction. Kelly has not filed a response.

The Court of Veterans Appeals dismissed Kelly's appeal for lack of jurisdiction because Kelly failed to demonstrate that his notice of appeal was filed within 120 days after the date of mailing of the Board of Veterans Appeals' decision.

Under 38 U.S.C. § 7292, this court may review only challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitutional provision, that the Court of Veterans Appeals relied on in its decision. If an appeal to this court from the Court of Veterans Appeals does not challenge the validity or interpretation of a statute or regulation, or the interpretation of a constitutional provision, Sec. 7292(d) requires this court to dismiss the appeal. That section states that 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."

Kelly's appeal amounts to a request for review of the Court of Veterans Appeals' factual determination that Kelly filed an untimely notice of appeal and its application of the 120-day time requirement to the facts of his case. As this court has no jurisdiction to conduct such an inquiry, this appeal must be dismissed. See Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed. Cir. 1992).

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion to dismiss is granted.

(2) Each side shall bear its own costs.