N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

______________________ MICHAEL WESLEY, SR. , Claimant

- Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs , Respondent

- Appellee.

______________________

2014

- 7019

______________________ Appeal from the United States Court of Appea ls for Veterans Claims in No. 1 3- 1640, Judge Mary J. Schoelen

.

______________________

Decided: April 9, 2014

______________________

M ICHAEL W ESLEY , S R

. , of Augusta , Georgia, pro se.

V ERONICA N. O NYEMA , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, fo r respondent

appellee. With her on the brief were S TUART F. D ELERY , Assistant Attorney General, B RYANT G. S NEE , Acting Director, and S COTT D. A USTIN , Assistant Director. Of counsel on the brief were D AVID J. B ARRANS , Deputy Assistant

, General Counsel, and C HRISTINA L. G REGG ,WESLEY v. SHINSEKI 2

Attorney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before M OORE , R EYNA , and H UGHES , Circuit Judges.

P ER C URIAM

. Michael Wesley, Sr. appeals from the decision of the Uni ted States Court of Appeals for Veterans Claims (Veterans Court) dismissing his appeal as untimely filed

. We dismiss for lack of jurisdiction.

B ACKGROUND Mr. Wesley served o n active duty from 1984 to 1994. He made a claim for service connection for hypertension

, which the Department of Veterans Affairs (VA) denied. Several years later, Mr. Wesley filed a request to reopen his claim, which t he VA denied. Mr. Wesley appealed to the Board of Veterans Appeals (Board)

. The Board r emanded Mr. Wesley’s claim to the VA Regional Office (RO) to further develop the record

. The RO again refused to reopen Mr. Wesley’s claim, and Mr. Wesley appealed to the Board for the s econd time

. T he Board found that Mr. Wesley did not submit any new and material evidence to the RO , and affirmed t he RO’s denial of his request to reopen his claim

. The Board instructed Mr. Wesley that the deadline to submit an appeal to the Veterans Court would expire 120 days from the date of the Board’s dec ision. Mr. Wesley filed a Notice of Appeal (NOA) to the V eterans Court more than four months after t he statut orily

- mandated 120

- day period expired

. The Veterans Court informed Mr. Wesley that his NOA was unti mely filed, and ordered him to explain why it should not dismiss his appeal. He responded that he sent his “paper work” to two other places before he a ppealed to the Veterans Court. First, before the Board’s decision issued

, Mr. Wesley sent the Board a notice r e-WESLEY v. SHINSEKI 3

questing re hearing , which the Board denied

. Second, more than three months after the 12 0- day period expired, Mr. Wesley filed a petiti on with the Supreme Court of the United States

. The Veterans Court dismissed Mr. Wesley’s appeal as untimely filed. Wesley v. Shinseki , No. 13

- 1640, slip op. at 2– 3 ( Vet. App. Sept. 12, 2013). It noted that the 120

- day peri od could be equitably tolled if circumstances preclu ded a timely filing despite the exercise of due diligence , but determined that equitable tolling did not apply in this

case

. Id. at 2. The Veterans Court denied Mr. Wesley’s motion for reconsideration, and entered judgment. Mr. Wesley appeals.

D ISCUSSION We have jurisdiction to review “the validity of a dec ision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” 38 U.S.C. § 7292(a). We lack jurisdiction, however, to review a challenge to factual determinations or the application of a law or regulation to pa rticular facts, except to the extent that an appeal presents a constitutional issue. Id. § 7292(d) (2)

. Mr. Wesley challenges the Veterans Court’s dismissal of his appeal as untimely filed. Mr. Wesley asserts that he has sent letters that the government has not answered or addressed. He argues that we should make findings concerning the merits of his claim for service connection for hypertension or other conditions.
The government responds that we do not have juri sdiction to address Mr. Wesley’s argum ent s because he does not challenge the Veterans Court’s decision on a rule of law, or the validity or interpretation of a statute or regulation on which the Veterans Court relied. It co n-WESLEY v. SHINSEKI 4

tends that Mr. Wesley presents “a mere disagreement with the court’s finding that he failed to show that any circumstance, such as a timely misfiling, actually pr evented him from filing a timely notice of appeal.” Appe llee Br. a t 9

. We lack jurisdiction over this appeal. Mr. Wesley does not allege that the Veterans Court commit ted any legal error in holding that equitable tolling does no t apply
to his appeal

. Nor has he argued that the Veterans Court’s decision involved an interpretation of a statute or regul ation. Mr. Wesley disputes the Veterans Court’s finding that he failed to demonstrate that circumstances precluded timely filing of his NOA despite the exercise of due diligence. “ [T] his constitutes, at the very least, the application of the law of equit able tolling to the facts of the case. [To exercise jurisdiction over this appeal ] , [w] e would also have to judge the accuracy of the facts found by the lower court. This we cannot do.” Leonard v. Gober

, 223 F.3d 1374, 1376 (Fed. Cir. 2000). In other words, we lack the authority to correct the errors that, according to Mr. Wesley, were purportedly made by the Veterans Court and the VA.

C ONCLUSION

We have considered Mr. Wesley’s remaining arg uments and do not find them persuasive. We conclude Mr. Wesley has not presented an issue over which we have jurisdiction.

DISMISSED

C OSTS

No costs.