              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                Is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit
                                     04-7125

                             ERLINDA T. CABALZA,

                                               Claimant-Appellant,

                                        v.

             ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

                                               Respondent-Appellee.

                        ___________________________

                        DECIDED: November 8, 2004
                        ___________________________

Before, RADER, DYK, and PROST, Circuit Judges.

PER CURIAM

      The U.S. Court of Appeals for Veterans Claims (Veterans Court) affirmed

the Board of Veterans’ Appeals’ (BVA’s) decision to dismiss Mrs. Erlinda

Cabalza’s appeal for lack of jurisdiction. Cabalza v. Principi, No. 03-1975 (Vet.

App. Mar. 10, 2004). Because Mrs. Cabalza fails to raise a constitutional issue in

her appeal to this court, this court lacks jurisdiction to review the Veterans

Court’s dismissal of Mrs. Cabalza’s appeal as untimely.        Accordingly, Mrs.

Cabalza’s appeal to this court is dismissed.

                                 BACKGROUND

      On March 11, 2003, the BVA denied Mrs. Cabalza’s claim for dependency

and indemnity compensation benefits based on service connection for the cause
of her veteran husband’s death.      Accompanying the decision was a notice

informing Mrs. Cabalza that she had “120 days from the date of mailing of the

notice of the BVA’s decision” to file a notice of appeal with the Veterans Court.

See also 38 U.S.C. § 7266(a) (2000). Mrs. Cabalza did not immediately appeal

to the Veterans Court. Instead, on August 27, 2003, 169 days after the mailing of

the BVA’s decision, Mrs. Cabalza asked the BVA to reconsider its decision. Mrs.

Cabalza’s motion for reconsideration of the BVA’s decision was timely under 38

C.F.R. § 20.1001(b) (2001) (emphasis added), which provides that a “motion for

reconsideration of a prior Board of Veterans’ Appeals decision may be filed at

any time.”

      On September 9, 2003, the BVA denied Mrs. Cabalza’s motion for

reconsideration for failure to show error in the BVA’s decision. Mrs. Cabalza filed

a notice of appeal on November 10, 2003 with the Veterans Court. The Veterans

Court ordered Mrs. Cabalza to show cause why the appeal should not be

dismissed for lack of jurisdiction since she had not filed within the 120-day

deadline as required by section 7266(a) of title 38. Mrs. Cabalza filed responses

on February 9 and 18, 2004. These responses, however, did not address the

Veterans Court’s lack of jurisdiction. The Veterans Court dismissed the appeal

for lack of jurisdiction on March 10, 2004, and entered judgment on May 3, 2004.

Mrs. Cabalza now appeals the Veterans Court’s determination to this court.

                                  DISCUSSION

      This court’s jurisdiction to review a judgment of the Veterans Court is

limited by 38 U.S.C. § 7292(d)(2), which provides that “[e]xcept to the extent that




04-7125                                 2
an appeal . . . presents a constitutional issue, the Court of Appeals 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.” Therefore, without a

constitutional issue, this court lacks jurisdiction to review Mrs. Cabalza’s appeal if

it involves a determination of facts or the application of law to facts.

       On appeal, Mrs. Cabalza argues that 38 U.S.C. § 7266(a) and 38 C.F.R. §

20.1001(b) are misleading and unconstitutional. Mrs. Cabalza argues that the

120-day appeal period of section 7266(a)(1) of title 38 was tolled because she

had filed a request for reconsideration with the BVA “at any time” as defined

under 5 C.F.R. § 20.1001(b).        However, in order to toll the 120-day appeal

period, an appellant must file a motion for reconsideration of a decision of the

BVA within 120 days after the BVA’s decision is mailed. Graves v. Principi, 294

F.3d 1350, 1352 (Fed. Cir. 2002) (citing Rosler v. Derwinski, 1 Vet. App. 241

(1991)). The appellant then has 120 days from the date of mailing of the BVA’s

reconsideration decision to file a notice of appeal with the Veterans Court. Id.

Because Mrs. Cabalza filed a motion for reconsideration of the BVA’s decision

169 days after the mailing of the BVA’s initial decision, Mrs. Cabalza’s motion did

not toll the appeal period.

       Furthermore, Mrs. Cabalza’s appeal is not eligible for equitable tolling of

the 120-day appeal period because she has not shown that she “has actively

pursued [her] judicial remedies by filing a defective pleading” or that she was

“induced or tricked by [her] adversary’s misconduct into allowing the filing

deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); see




04-7125                                    3
Bailey v. West, 160 F.3d 1360, 1364-68 (Fed. Cir. 1998) (adressing the doctrine

of equitable tolling). Because Mrs. Cabalza is not seeking review of a decision of

the Veterans Court with respect to a constitutional issue, but instead simply

challenges the Board’s application of the law to the facts of this case, this court

lacks jurisdiction and must therefore dismiss Mrs. Cabalza’s appeal.

      Mrs. Cabalza also raises arguments relating to the merits of her

underlying claim.    Because the Veterans Court dismissed her appeal on

timeliness grounds, the merits of this case are not properly before us and we

decline to address them.




04-7125                                 4
