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11.1. Further Appeals

A decision of the Court "shall become final upon the expiration of the time allowed for filing, under section 7292 of [title 38], a notice of appeal [NOA] from such decision."  38 U.S.C. § 7291(a).  Pursuant to section 7292, an appeal from a decision of the Court "shall be obtained by filing [an NOA] with [the Court] within the time and in the manner prescribed for appeal to United States courts of appeals from United States district courts." 38 U.S.C. § 7292(a).  Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, when the United States or its officer or agency is a party to an action, an NOA to U.S. courts of appeals from U.S. district courts must be filed "within 60 days after the judgment or order appealed from is entered."  Fed. R. App. P. 4(a)(1)(B).  Thus, if no NOA is filed, a judgment of the Court (where the United States is always a party) becomes final 60 days after this Court enters judgment.  Luyster v. Principi, 16 Vet. App. 96, 98-99 (2002). 

An appellant may directly challenge an action of the Secretary at the Federal Circuit pursuant to 38 U.S.C. section 502, which provides for direct review of actions of the Secretary.  Military Order of the Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293, 1294 n.1 (Fed.Cir.2009) ("An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers is subject to judicial review.  Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit.").  See Sellers v. Shinseki, 08-1758, 2012 WL 2380247 (Vet. App. June 26, 2012).

Where a notice of appeal to the Federal Circuit is filed and the Federal Circuit issues a dismissal order, appeal rights from those voluntary dismissals "are presumed unless disclaimed or specifically prohibited."  Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367, 1372 (Fed. Cir. 2008); see also Bowers v. Brown, 8 Vet. App. 25, 27 (1995) (holding that USCAVC order granting consensual motion for remand pursuant to U.S. VET. APP. R. 41(b) was "final and not appealable," pursuant to 28 U.S.C. § 2412(d)(2)(G)).  The Court has held that where there were no conditions that prevented a party from filing a certiorari petition to the Supreme Court, the Court's judgment became "final and not appealable" under 28 U.S.C. section 2412(d)(2)(G) upon the expiration of the period for filing a petition for certiorari from the judgment of the Federal Circuit.  Kiddey v. Shinseki, 22 Vet. App. 367, 371-72 (2009).

A nondispositive Court order must satisfy three requirements to be appropriate for certification to the Federal Circuit for an interlocutory appeal.  First, the nondispositive order must be based on a legal determination appropriate for Federal Circuit review.  See 38 U.S.C. §§ 7292(a), (d) (limiting Federal Circuit's jurisdiction to review of constitutional questions and questions of statutory or regulatory validity or interpretation); Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004) ("[W]hile we can review questions of law, we cannot review applications of law to fact.").  Second, there must be "a substantial ground for difference of opinion ... with respect to that question of law."  38 U.S.C. § 7292(b). Finally, "the ultimate termination of the case may be materially advanced by the immediate consideration of that question."  Id.; see Yu v. Brown, 9 Vet. App. 121, 122 (1996); Bonhomme v. Nicholson, 22 Vet. App. 317, 318 (2007).

Claims that the Court failed to take into consideration certain documents pursuant to Rule 10 do not fall within the Federal Circuit's statutory grant of jurisdiction, and that Court is precluded by law from hearing [such an] appeal.  Bair v. Brown, 6 Vet. App. 68, 69 (1993).

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