53 F3d 347 Pesito v. Brown

Lorenza A. PESITO, Claimant-Appellant,
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

No. 94-7072.

United States Court of Appeals, Federal Circuit.

April 17, 1995.

53 F.3d 347
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before ARCHER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit Judge.



BRYSON, Circuit Judge.

view counter

The Secretary of Veterans Affairs moves to waive the requirements of Fed.Cir.R. 27(e) and to dismiss Lorenza A. Pesito's appeal for lack of jurisdiction. Pesito has not responded.


In January of 1991, Pesito applied for dependency and indemnity compensation benefits on the ground that she was the surviving spouse of a veteran who was killed while serving in the Philippine Army in World War II. The Board of Veterans Appeals concluded that she was not entitled to such benefits because she was not the veteran's lawful spouse at the time of his death. The Court of Veterans Appeals summarily affirmed the Board's decision and stated that "the appellant has not demonstrated that the BVA committed error that would warrant remand or reversal." Pesito appealed to this court.


Under 38 U.S.C. Sec. 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."


In her informal brief, Pesito disputes the determination that she was not the lawful wife of the deceased veteran. In essence, Pesito is challenging findings of fact and the application of the law to the facts of her 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).





(1) The Secretary's motion to waive the requirements of Fed.Cir.R. 27(e) is granted.


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

view counter

(3) Each side shall bear its own costs.