Veteranclaims’s Blog

February 16, 2022

Appealing to Federal Circuit; To be timely, a notice of appeal must be received by the Veterans Court within 60 days of the entry of judgment. See 38 U.S.C. § 7292(a); see also 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). We have previously explained that the Supreme Court “has long held that the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,’” and “it has clearly but indirectly
indicated that the same conclusion applies to appeals under section 7292(a) from the Veterans Court to this court.” Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed. Cir. 2013) (quoting Bowles v. Russell, 551 U.S. 205, 209 (2007) and Henderson v. Shinseki, 562 U.S. 428, 438–39 (2011));

Filed under: Uncategorized — veteranclaims @ 8:01 pm

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit


DAVID A. ADEYI,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1400


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-884, Judge Joseph L. Toth.


Decided: February 16, 2022


DAVID ADEYEMI ADEYI, Bronx, NY, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, ROBERT EDWARD
KIRSCHMAN, JR.; AMANDA BLACKMON, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.


Case: 21-1400 Document: 20 Page: 1 Filed: 02/16/2022
2 ADEYI v. MCDONOUGH
Before DYK, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
BACKGROUND
David A. Adeyi appeals from the decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court). Adeyi v. Wilkie, No. 19-0884, 2020 WL 1237739
(Vet. App. Mar. 16, 2020) (Veterans Court Decision). The
Veterans Court affirmed the decision of the Board of Veterans’
Appeals (Board), which denied service connection for
right and left knee disorders. Id. at *1.
Mr. Adeyi served on active duty in the U.S. Army from
February 2002 to July 2002 and from September 2004 to
September 2005, with additional Reserve service. Id. In
2003, he served as an exchange soldier in Norway. Id. In
an April 2003 medical review, Mr. Adeyi reported a right
knee injury, incurred during an in-service skiing accident.
Id.; Suppl. App. (S.A.) 21.1 But in subsequent medical reviews
over the next one-and-a-half years, he reported no
medical problems, including knee problems. Veterans
Court Decision, 2020 WL 1237739, at *1. His separation
examination was normal. Id.
Nearly a decade after he left service, Mr. Adeyi sought
disability compensation for his right and left knees, alleging
that they were injured in the skiing incident. Id. He
was examined twice by the VA. Id. In May 2012, the examiner
diagnosed Mr. Adeyi with a right knee sprain and
reviewed his medical history. He opined that, based on his
present condition and the historical medical records, the
knee sprain was “less likely than not” related to service.
1 References to the Supplemental Appendix refer to
the appendix filed with the government’s informal brief,
ECF No. 12.
Case: 21-1400 Document: 20 Page: 2 Filed: 02/16/2022
ADEYI v. MCDONOUGH 3
Id. In December 2015, another examiner observed that Mr.
Adeyi had injured his right knee in 2003 but did not have
a current right knee condition. Id. The examiner also
found that Mr. Adeyi’s left-knee arthralgia was not related
to service. Id. The Board denied service connection for
both knees. Id.
Mr. Adeyi appealed the decision to the Veterans Court.
Id. He alleged the Board made erroneous credibility determinations,
relied on deficient VA medical opinions, and
provided an inadequate rationale for its findings. Id. The
Veterans Court rejected these arguments in its decision
dated March 16, 2020. Id. at *1–3. The Veterans Court
denied Mr. Adeyi’s motion for reconsideration and entered
final judgment on April 15, 2020. S.A. 4. Mr. Adeyi appeals
the Veterans Court’s decision.
DISCUSSION
We dismiss the appeal as untimely filed and, therefore,
for lack of jurisdiction. Mr. Adeyi’s notice of appeal was
received on October 17, 2020, more than six months (185
days) after the Veterans Court entered judgment on April
15, 2020. ECF No. 1. To be timely, a notice of appeal must
be received by the Veterans Court within 60 days of the
entry of judgment. See 38 U.S.C. § 7292(a); see also 28
U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). We have previously
explained that the Supreme Court “has long held
that the taking of an appeal within the prescribed time is
‘mandatory and jurisdictional,’” and “it has clearly but indirectly
indicated that the same conclusion applies to appeals
under section 7292(a) from the Veterans Court to this
court.” Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed. Cir.
2013) (quoting Bowles v. Russell, 551 U.S. 205, 209 (2007)
and Henderson v. Shinseki, 562 U.S. 428, 438–39 (2011))
.
Because Mr. Adeyi failed to file his notice of appeal by June
14, 2020, we have no jurisdiction over this appeal.
That is so even though, on July 30, 2020, Mr. Adeyi
filed a motion with the Veterans Court to extend the time
Case: 21-1400 Document: 20 Page: 3 Filed: 02/16/2022
4 ADEYI v. MCDONOUGH
to file a notice of appeal. S.A. 31. On August 27, 2020, the
Veterans Court denied the motion because, by statute,
such a motion must be filed “not later than 30 days after
the expiration of the time otherwise set for bringing appeal.”
S.A. 2 (quoting 28 U.S.C. § 2107(c)). The Veterans
Court also noted that, even if Mr. Adeyi’s motion for extension
was considered a motion to reopen the time for appeal,
relief could not be granted on that ground because Mr.
Adeyi had not asserted that he did not timely receive notice
of the April 15, 2020 judgment. Id.
The Veterans Court’s order denying the motion noted
that, under Federal Circuit precedent, the denial of the motion
was itself a final order that may be appealed. S.A. 3
(citing Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311,
1314 (Fed. Cir. 2015)). However, Mr. Adeyi did not appeal
the denial of his motion; his appeal instead is limited to
only the decision on the merits. See ECF No. 1-2, at 1 (identifying
that he was appealing the decision dated March 16,
2020); see generally Appellant’s Informal Br. In his reply
brief, Mr. Adeyi asserts that “he did not receive judgment
order notices under the Federal Rule of Civil Procedure
77(d), because he was forced to leave the city/state of New
York during the Covid-19 pandemic.” Appellant’s Informal
Reply Br. 1. However, this assertion is too-late raised to be
deemed an appeal of the Veterans Court’s denial to reopen
the time for appeal, and it was never presented to the Veterans
Court in Mr. Adeyi’s original motion to extend the
time. Our court therefore lacks jurisdiction to consider Mr.
Adeyi’s appeal on the merits, given that we have “no authority
to create equitable exceptions to jurisdictional requirements.”
Bowles, 551 U.S. at 214.
Therefore, the untimely-filed appeal of the Veterans
Court’s decision on the merits is dismissed for lack of jurisdiction.
The parties shall bear their own costs.
DISMISSED
Case: 21-1400 Document: 20 Page: 4 Filed: 02/16/2022

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.