Opinion
2011-7204
03-08-2012
LARY E. GRIMES, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.
NOTE: This order is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in case no. 10-1841, Judge William A. Moorman.
ON MOTION
Before RADER, Chief Judge, GAJARSA and REYNA, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss for lack of jurisdiction Lary Grimes' appeal from a decision of the United States Court of Appeals for Veterans Claims.
On June 1, 2010, Grimes filed an appeal with the Veterans Court seeking review of an order denying him entitlement to service connection for a psychiatric disability. He then moved for expedited proceedings, which the Veterans Court denied. The Veterans Court denied Grimes' motion for reconsideration regarding expediting. Grimes then appealed the Veterans Court's decision to this court.
The Secretary argues that this court lacks jurisdiction because the Court of Appeals for Veterans Claims decisions was not final and does not meet the standards for appealability of nonfinal decisions set forth in Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002). We agree.
This court generally does not review nonfinal decisions of the Court of Appeals for Veterans Claims. Departure from this rule is justified only if three conditions are fulfilled:
(1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.Id. at 1364 (footnotes omitted).
Because the requirements of Williams are not satisfied, the renewed order is not sufficiently final for the purposes of our review. If the Court of Appeals for Veterans Claims issues an adverse final decision at a later date, Grimes may thereafter appeal that decision to this court. Thus, we dismiss.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary's motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
______________
Jan Horbaly
Clerk
cc: Lary E. Grimes
Joshua A. Mandlebaum, Esq.
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