Howard v. Gober

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore MICHEL, LOURIE, and RADER; LOURIE
Citation220 F.3d 1341
Decision Date04 August 2000
Parties(Fed. Cir. 2000) DANIEL R. HOWARD, Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee, 99-7194 DECIDED:

Page 1341

220 F.3d 1341 (Fed. Cir. 2000)
DANIEL R. HOWARD, Claimant-Appellant,
v.
HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee,
99-7194
United States Court of Appeals for the Federal Circuit
DECIDED: August 4, 2000

Appealed from: United States Court of Appeals for Veterans Claims Chief Judge Frank Q. Nebeker

Page 1342

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Gerald M. Alexander, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; Kathryn A. Bleecker, Assistant Director; and Agnes M. Brown, Attorney. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MICHEL, LOURIE, and RADER, Circuit Judges.

LOURIE, Circuit Judge.

Daniel R. Howard appeals from the decision of the United States Court of Appeals for Veterans Claims dismissing his appeal for lack of jurisdiction. See Howard v. West, No. 99-166 (CAVC June 25, 1999) (order) ("Howard II"). Because we

Page 1343

conclude that the court did not err in dismissing Howard's appeal, and because Howard improperly raises an issue that was not raised before the Court of Appeals for Veterans Claims, we affirm-in-part and dismiss-in-part.

BACKGROUND

Mr. Howard is a Vietnam veteran who served on active duty from September 1966 to January 1970. See Howard v. West, No. 97-14 044, slip op. at 1, 3 (BVA Oct. 9, 1998) ("Howard I"). On February 19, 1991, the Department of Veterans Affairs Regional Office ("RO") denied his claim for service connection for post-traumatic stress disorder ("PTSD"), and in June 1996, the RO issued a decision denying Howard's attempt to reopen his claim, see id. at 2. Howard appealed from the June 1996 decision to the Board of Veterans' Appeals, arguing that new and material evidence had been submitted to reopen his PTSD claim. See id. at 1; see also 38 C.F.R. § 3.156 (1999) ("New and material evidence"). Howard also appealed from the February 1991 decision, arguing that that decision was infected with clear and unmistakable error ("CUE"). It is unclear from the record whether these appeals were brought before the Board individually or in a consolidated fashion. In any event, on October 9, 1998, the Board remanded, instructing the RO to evaluate the evidence proffered by the veteran in support of his attempt to reopen his June 1996 PTSD claim. See Howard I, slip op. at 2-6. The Board's decision, however, did not address Howard's claim of CUE in the February 1991 RO decision.

Howard appealed to the Court of Appeals for Veterans Claims, requesting that the court instruct the Board to address his CUE claim. The court dismissed Howard's appeal, holding that it lacked jurisdiction because the Board had not rendered a final decision regarding the CUE claim. See Howard II, slip op. at 1. The court further held that even if his appeal were treated as a petition for mandamus, that petition would fail because there was not "any basis for the [c]ourt to conclude that the CUE matter [would] not be addressed by the Board in due course," and thus Howard had failed to prove that he had exhausted his administrative remedies. Id.

Howard appealed from the decision of the Court of Appeals for Veterans Claims to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

Pursuant to 38 U.S.C. § 7292, our jurisdiction to review a decision of the Court of Appeals for Veterans Claims is highly circumscribed. See Glover v. West, 185 F.3d 1328, 1331 (Fed. Cir. 1999). Under that statute, we may review a decision "with respect to the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision." 38 U.S.C. § 7292(a) (Supp. IV 1998). "Except to the extent that an appeal presents a constitutional issue, we may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case." Bowey v. West, 218 F.3d 1373, 1375-76 (Fed. Cir...

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413 practice notes
  • Stanley v. Principi, No. 01-7017.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 14 de março de 2002
    ...7292. We review an interpretation of statutory provisions by the Court of Appeals for Veterans Claims without deference. Howard v. Gober, 220 F.3d 1341, 1343 The award of attorneys' fees in veterans cases is governed by 38 U.S.C. § 5904, which provides in pertinent part: Page 1355 (c)(1) ........
  • Comer v. Peake, No. 2008-7013.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 16 de janeiro de 2009
    ...the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed.Cir.2002); Howard v. Gober, 220 F.3d 1341, 1343 (Fed.Cir.2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the......
  • Skaar v. Wilkie, 17-2574
    • United States
    • Court of Appeals for Veteran Claims
    • 1 de fevereiro de 2019
    ...in dispute). Moreover, the appellant's exclusion from the IRR was not a matter addressed or decided by the Board. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) ("[W]hen the Board has not rendered a decision on a particular issue, the court has no jurisdiction to consider it."); ......
  • Skaar v. Wilkie, 17-2574
    • United States
    • Court of Appeals for Veteran Claims
    • 1 de fevereiro de 2019
    ...in dispute). Moreover, the appellant's exclusion from the IRR was not a matter addressed or decided by the Board. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) ("[W]hen the Board has not rendered a decision on a particular issue, the court has no jurisdiction to consider it."); ......
  • Request a trial to view additional results
413 cases
  • Stanley v. Principi, No. 01-7017.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 14 de março de 2002
    ...7292. We review an interpretation of statutory provisions by the Court of Appeals for Veterans Claims without deference. Howard v. Gober, 220 F.3d 1341, 1343 The award of attorneys' fees in veterans cases is governed by 38 U.S.C. § 5904, which provides in pertinent part: Page 1355 (c)(1) ........
  • Comer v. Peake, No. 2008-7013.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 16 de janeiro de 2009
    ...the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed.Cir.2002); Howard v. Gober, 220 F.3d 1341, 1343 (Fed.Cir.2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the......
  • Skaar v. Wilkie, 17-2574
    • United States
    • Court of Appeals for Veteran Claims
    • 1 de fevereiro de 2019
    ...in dispute). Moreover, the appellant's exclusion from the IRR was not a matter addressed or decided by the Board. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) ("[W]hen the Board has not rendered a decision on a particular issue, the court has no jurisdiction to consider it."); ......
  • Skaar v. Wilkie, 17-2574
    • United States
    • Court of Appeals for Veteran Claims
    • 1 de fevereiro de 2019
    ...in dispute). Moreover, the appellant's exclusion from the IRR was not a matter addressed or decided by the Board. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) ("[W]hen the Board has not rendered a decision on a particular issue, the court has no jurisdiction to consider it."); ......
  • Request a trial to view additional results

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