NOTE: This disposition is nonprecedential.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 Appeals for 

Veterans Claims in No. 13-1640, Judge Mary J. Schoelen. 

______________________ 

Decided: April 9, 2014

______________________ 

MICHAEL WESLEY, SR., of Augusta, Georgia, pro se. 

VERONICA N. ONYEMA, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With her on the brief were STUART F. DELERY, 

Assistant Attorney General, BRYANT G. SNEE, Acting 

Director, and SCOTT D. AUSTIN, Assistant Director. Of 

counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant, General Counsel, and CHRISTINA L. GREGG,
2 WESLEY v. SHINSEKI

Attorney, United States Department of Veterans Affairs, 

of Washington, DC.

______________________ 

Before MOORE, REYNA, and HUGHES, Circuit Judges.

PER CURIAM. 

Michael Wesley, Sr. appeals from the decision of the 

United States Court of Appeals for Veterans Claims 

(Veterans Court) dismissing his appeal as untimely filed. 

We dismiss for lack of jurisdiction.

BACKGROUND

Mr. Wesley served on 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 the VA denied. Mr. Wesley appealed to 

the Board of Veterans Appeals (Board). The Board remanded 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 second time. The Board found that Mr. 

Wesley did not submit any new and material evidence to 

the RO, and affirmed the 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 decision. Mr. Wesley filed a Notice of Appeal (NOA) to the 

Veterans Court more than four months after the statutorily-mandated 120-day period expired. 

The Veterans Court informed Mr. Wesley that his 

NOA was untimely 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 appealed to the Veterans Court. First, before the Board’s 

decision issued, Mr. Wesley sent the Board a notice re-
WESLEY v. SHINSEKI 3

questing rehearing, which the Board denied. Second, 

more than three months after the 120-day period expired, 

Mr. Wesley filed a petition 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 

period could be equitably tolled if circumstances precluded 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.

DISCUSSION

We have jurisdiction to review “the validity of a decision 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 particular 

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 jurisdiction to address Mr. Wesley’s arguments 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 con-
4 WESLEY v. SHINSEKI

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 prevented him from filing a timely notice of appeal.” Appellee Br. at 9. 

We lack jurisdiction over this appeal. Mr. Wesley 

does not allege that the Veterans Court committed any 

legal error in holding that equitable tolling does not apply 

to his appeal. Nor has he argued that the Veterans 

Court’s decision involved an interpretation of a statute or 

regulation. 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 equitable 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. 

CONCLUSION

We have considered Mr. Wesley’s remaining arguments and do not find them persuasive. We conclude Mr. 

Wesley has not presented an issue over which we have 

jurisdiction.

DISMISSED

COSTS

No costs.