Lakeysha ISAAC, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
No. 2013-5075.
United States Court of Appeals, Federal Circuit.
Nov. 8, 2013.
Denied Jan. 24, 2014.
999
Lakeysha ISAAC, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee. No. 2013-5075. United States Court of Appeals, Federal Circuit. Nov. 8, 2013. Denied Jan. 24, 2014.* Mike Joseph B. BABSA-AY, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. No. 2013-7036. United States Court of Appeals, Federal Circuit. Nov. 8, 2013.
Jane W. Vanneman, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. of counsel was Hillary Stern.
MOORE, CLEVENGER, and REYNA, Circuit Judges.
JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, of Vienna, Virginia, argued for petitioner-appellant.
Lisa A. Watts, Senior Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director, and Catharine E. Reeves, Assistant Director.
REYNA, TARANTO, and CHEN, Circuit Judges.
JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See
* Circuit Judge Hughes did not participate in the vote.
Nicholas Jabbour, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel and Savannah Connally, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before WALLACH, LINN, and TARANTO, Circuit Judges.
PER CURIAM.
Mike Joseph B. Babsa-ay appeals from a U.S. Court of Appeals for Veterans Claims (“Veterans Court“) decision denying him entitlement to death benefits. Because determining whether Mr. Babsa-ay was a “legally adopted child” of a veteran involves factual inquiries or application of law to facts, this court dismisses Mr. Babsa-ay‘s appeal for lack of jurisdiction.
BACKGROUND
Jeronimo Babsa-ay (“veteran“) served on active duty from December 1972 to May 1980. In April 1978, the veteran adopted Mr. Babsa-ay, the veteran‘s nephew, under Philippine law, when he was four years old. Subsequently, in May 1980, the veteran passed away.
Mr. Babsa-ay filed a claim with the Department of Veterans’ Affairs (“VA“) for death benefits in November 2008. The VA regional office (“RO“) denied the claim later that month. On appeal, the Board held that Mr. Babsa-ay did not qualify as an adopted child to be eligible to receive VA death benefits. In particular, the Board found that Mr. Babsa-ay was residing with his natural mother, the veteran‘s sister, prior to the veteran‘s death and did not reside with the veteran for at least a year prior to the veteran‘s death, rendering him ineligible for death benefits. Mr. Babsa-ay appealed the Board‘s decision to the Veterans Court.
The Veterans Court affirmed the Board‘s decision. Babsa-ay v. Shinseki, No. 11-2629, 2012 WL 4045223 (Vet.App. Sept. 14, 2012). It held that Mr. Babsa-ay failed to meet the definition of a “legally adopted child” for purposes of VA death benefits pursuant to
DISCUSSION
Congress has limited the scope of this court‘s review of Veterans Court‘s decisions. See Deloach v. Shinseki, 704 F.3d 1370, 1378 (Fed.Cir.2013);
In this case, the Veterans Court applied
shall not be considered to be a legally adopted child of a veteran during the lifetime of such veteran ... unless such
person—(I) was less than eighteen years of age at the time of adoption; (II) is receiving one-half or more of such person‘s annual support from such veteran; (III) is not in the custody of such person‘s natural parent, unless such natural parent is such veteran‘s spouse; and (IV) is residing with such veteran ... except for periods during which such person is residing apart from such veteran ... for purposes of fulltime attendance at an educational institution....
Specifically, the Veterans Court affirmed the Board‘s findings that Mr. Babsa-ay was adopted during the life-time of the veteran (and not at the time of the veteran‘s death), and lived with his natural mother (the veteran‘s sister) as opposed to living with the veteran for the year preceding the veteran‘s death. In addition, the Veterans Court found that though Mr. Babsa-ay was in kindergarten at the time of the veteran‘s death, there was no indication that Mr. Babsa-ay lived apart from the veteran for the purpose of full-time kindergarten attendance.
Applying these factual determinations to
For example, Mr. Babsa-ay argues that the Veterans Court should have applied
In addition, to the extent Mr. Babsa-ay asserts constitutional issues, those claims are constitutional in name only. See Helfer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999) (holding that, “[t]o the extent that [petitioner] has simply put a ‘due process’ label on his contention that he should have prevailed on his ... claim, his claim is constitutional in name only“). The remaining arguments likewise fall outside this court‘s limited jurisdiction, including, for some, because they are raised for the first time on appeal. See Forshey v. Principi, 284 F.3d 1335, 1351 (Fed.Cir.2002) (en banc) (holding that this court generally does not decide issues not raised below in appeals of Veterans Court decisions).
CONCLUSION
For the foregoing reasons, this case is dismissed for lack of jurisdiction.
DISMISSED.
No costs.