       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

             ALBERT W. WOHLWEND,
                Claimant-Appellant

                           v.

    ROBERT A. MCDONALD, SECRETARY OF
           VETERANS AFFAIRS,
              Respondent-Appellee
            ______________________

                      2014-7096
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-0356, Chief Judge Bruce E.
Kasold.
               ______________________

                Decided: March 6, 2015
                ______________________

    MARK A. KNUEVE, Vorys Sater Seymore and Pease
LLP, Columbus, OH, for claimant-appellant. Also repre-
sented by MICAH D. DAWSON.

    TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F.
HOCKEY, JR.; LARA EILHARDT, Y. KEN LEE, Office of Gen-
2                                  WOHLWEND    v. MCDONALD



eral Counsel, United States Department of Veterans
Affairs, Washington, DC.
                 ______________________

    Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
O’MALLEY, Circuit Judge.
    Albert Wohlwend appeals the order of the Court of
Appeals for Veterans Claims (“Veterans Court”) denying
his motion to recall the mandate for failure to demon-
strate that equitable tolling of the appeal period is appro-
priate. Because we conclude that Wohlwend failed to
raise sufficiently any legal issues to justify our jurisdic-
tion, we dismiss.
                     I. BACKGROUND
    Wohlwend obtained assistance from the Disabled
American Veterans (“DAV”) in pursuing his claim for an
increased disability rating before the Board of Veterans
Appeals (“the Board”). On March 7, 2007, the Board
denied Wohlwend’s claim, triggering his time to file an
appeal. Because Wohlwend did not file his Notice of
Appeal until January 4, 2008—more than 120 days after
the date of the Board’s decision—the Veterans Court
dismissed his appeal as untimely. In dismissing Wohl-
wend’s appeal, the district court concluded that, under 38
U.S.C. § 7266(a), the 120-day time period to file the notice
of appeal was jurisdictional and, therefore, not subject to
equitable tolling. Wohlwend v. Shinseki, No. 08-356, 2009
WL 661922, at *1 (Vet. App. Mar. 13, 2009).
    In 2011, the Supreme Court held that the time to file
a Notice of Appeal was not jurisdictional. See Henderson
v. Shinseki, 562 U.S. 428 (2011). In response to this
holding, the Veterans Court notified veterans whose
appeals had been dismissed for untimely filing of a Notice
of Appeal that they could file a motion to recall the man-
date premised on an argument that the case warrants
WOHLWEND   v. MCDONALD                                    3



equitable tolling of the appeal period. Wohlwend re-
sponded by moving to recall the mandate, arguing that he
had reasonably relied on DAV, his representative before
the Board, to file the Notice of Appeal. The Veterans
Court denied his motion to reopen the mandate, explain-
ing that the failure of a representative to file a timely
Notice of Appeal is “garden variety” excusable neglect and
not a basis for equitable tolling. Wohlwend v. Shinseki,
No. 08-356, 2012 WL 2873604, at *1 (Vet. App. July 13,
2012). On December 17, 2013, this court vacated the
Veterans Court’s order and remanded the case for the
court to consider whether “the veterans service officer’s
failure to act on [] Wohlwend’s behalf, and the affirmative
misrepresentation made by DAV, entitle [] Wohlwend to
equitable tolling of the filing deadline.” Wohlwend v.
Shinseki, 549 F. App’x 1015, 1019 (Fed. Cir. 2013).
    On remand, the Veterans Court requested evidence
from DAV and Wohlwend regarding the allegation that
DAV abandoned Wohlwend.             Wohlwend submitted a
declaration outlining his alleged attempts to contact his
representatives at DAV. DAV submitted a letter to the
court stating that, although it did not have any record
that it offered to file an appeal for Wohlwend, it could not
discount the possibility of a miscommunication with
Wohlwend. On May 15, 2014, the Veterans Court denied
Wohlwend’s motion to recall the mandate. See Wohlwend
v. Shinseki, No. 08-356, 2014 WL 1931182 (Vet. App. Mar.
15, 2014) (“Veterans Court Order”). The Veterans Court
explained that, “based on the totality of the evidence and
argument submitted,” id. at *2, Wohlwend failed to
demonstrate that equitable tolling is appropriate in this
case. The Veterans Court pointed to evidence on the
record that conflicted with his testimony, Wohlwend’s
failure to provide any dates or corroborating evidence, and
the lack of a written agreement with DAV regarding
representation on appeal. Id. at *2–3. The Veterans
Court concluded: “the evidence reflects an agreement by
4                                  WOHLWEND    v. MCDONALD



DAV to consider representation and the filing of appel-
lant’s [Notice of Appeal], but no agreement to do so.
Absent an agreement to represent the appellant or file the
[Notice of Appeal], there can be no abandonment.” Id. at
*3 (emphasis in original). Wohlwend timely appealed the
Veterans Court’s order.
                      II. DISCUSSION
    Our jurisdiction over the decisions of the Veterans
Court is limited by statute. Bond v. Shinseki, 659 F.3d
1362, 1366 (Fed. Cir. 2011). Unless the appeal presents a
constitutional issue, we “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.” 38
U.S.C. § 7292(d)(2).
     Wohlwend argues that the material facts are not in
dispute and that “[t]he sole question is whether equitable
tolling is available under the facts presented.” Appel-
lant’s Br. 7. By statute, however, we do not have jurisdic-
tion to review the application of the law to the facts of a
case. See 38 U.S.C. § 7292(d)(2). Although Wohlwend
contends that the Veterans Court incorrectly required a
“hard copy agreement” with the DAV, the Veterans Court
made no such legal conclusion. Indeed, contrary to
Wohlwend’s assertions, the Veterans Court made a factu-
al determination as to the sufficiency of Wohlwend’s
evidence, mentioning not only the lack of a written
agreement, but also pointing to the “inherent indications
of unreliability due to faulty memory or lack of detail” in
Wohlwend’s sworn testimony. Veterans Court Order,
2014 WL 1931182, at *3 (“Either way, the appellant’s
statement reflects a memory in conflict with the record.”).
In this case, the Veterans Court considered the “totality of
the evidence and argument submitted,” and concluded
that Wohlwend failed to demonstrate that equitable
tolling was appropriate. Veterans Court Order, 2014 WL
1931182 at *2. This is precisely the sort of factual deter-
WOHLWEND   v. MCDONALD                                    5



mination that we do not have jurisdiction to review. See
Appellant’s Br. 9–12. 1
                     III. CONCLUSION
    For the foregoing reasons, we dismiss for lack of juris-
diction.
                      DISMISSED




   1    Wohlwend also argues that he is entitled to equi-
table relief because his counsel affirmatively lied to him
regarding the deadline. We lack jurisdiction to consider
Wohlwend’s equitable argument because that too is based
on the reliability of Wohlwend’s testimony. See id. at 12–
13.
