NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARTHUR HARRIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1849
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4588, Judge Mary J. Schoelen.
______________________
Decided: October 11, 2016
______________________
ARTHUR HARRIS, Seattle, WA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN; Y. KEN LEE, CHRISTINA LYNN GREGG, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 HARRIS v. MCDONALD
Before REYNA, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
Arthur Harris filed an appeal to the Court of Appeals
for Veterans Claims (Veterans Court) to challenge a
Regional Office denial of a claim. The court dismissed the
appeal for lack of jurisdiction, because the Veterans
Court’s jurisdiction is limited to review of decisions of the
Board of Veterans’ Appeals and the Board had not decided
the claim. Harris v. McDonald, No. 15-4588, 2016 WL
1118625 (Vet. App. Mar. 22, 2016). Mr. Harris appeals to
this court, contending that he does not have to wait for a
Board decision in order to present his appeal to the Vet-
erans Court because the Board has not decided, or will not
decide, his claim quickly enough to comport with the Fifth
Amendment’s guarantee of due process. We conclude that
the Veterans Court committed no legal error in holding
that it lacked jurisdiction. We therefore affirm.
BACKGROUND
The record before us indicates that on November 12,
2015, the Seattle Regional Office of the Department of
Veterans Affairs issued a rating decision that denied
Mr. Harris’s claim that certain benefit payments to him
should not be reduced by the amounts of certain pension
payments to him and of dependent-benefit payments to
his daughter. The record does not clearly indicate wheth-
er Mr. Harris ever filed an appeal with the Board, but his
informal reply suggests that he did. Appellant’s Reply Br.
at 2–3 (stating that the rating decision informed him
“that he did not have to file a new appeal because they
had on record his prior one”). On November 30, 2015, less
than a month after the Regional Office decision,
Mr. Harris filed a Notice of Appeal with the Veterans
Court, challenging the Regional Office’s November 12
decision.
HARRIS v. MCDONALD 3
On January 8, 2016, the Secretary of Veterans Affairs
asked the Veterans Court to dismiss the appeal for lack of
jurisdiction because there was no decision by the Board on
Mr. Harris’s claim. In response to the Veterans Court’s
order to explain why it should not dismiss the appeal,
Mr. Harris confirmed that there was no such Board
decision. On March 22, 2016, the Veterans Court dis-
missed the appeal for lack of jurisdiction, citing 38 U.S.C.
§§ 7252 and 7266(a). Harris, 2016 WL 1118625, at *1.
The court entered final judgment on April 13, 2016.
Mr. Harris now appeals to this court.
DISCUSSION
We interpret Mr. Harris’s appeal as challenging the
Veterans Court’s interpretation of its jurisdictional stat-
utes as requiring a Board decision that actually decides
his claim even where delay in Board decision-making
amounts to a due-process violation, which he asserts has
occurred or will occur here. We have jurisdiction to
entertain those contentions about the Veterans Court’s
ruling—contentions that involve a matter of statutory
interpretation and a constitutional issue. 38 U.S.C.
§ 7292(d)(1), (2). But we reject Mr. Harris’s contentions
and affirm the Veterans Court’s holding that it lacked
jurisdiction.
The only potential statutory basis for Veterans Court
jurisdiction identified here is 38 U.S.C. § 7252. By its
terms, that statute requires a “decision” by the Board.
And we have long held that “decision” refers to a grant or
denial of the veteran’s claim. See Kirkpatrick v. Nichol-
son, 417 F.3d 1361, 1364 (Fed. Cir. 2005). There is indis-
putably no such decision here. Section 7252 is therefore
inapplicable, and that is so whether or not the “decisions”
covered by section 7252 must be “final”—a term used in
the time-for-appeal rule of 38 U.S.C. § 7266, but not in the
text of section 7252. See Tyrues v. Shinseki, 732 F.3d
1351, 1355–56 (Fed. Cir. 2013) (decision definitively
4 HARRIS v. MCDONALD
denying a claim on one ground is a “final decision” under
§ 7266 despite remand on another ground); Howard v.
Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
Mr. Harris’s constitutional contention, premised on
Department delay in ruling on his claim, provides no
basis for reversing the Veterans Court’s holding of no
jurisdiction. Nothing in section 7252 states an exception
for constitutional challenges from the jurisdictional
precondition of a Board decision. And we have held that
at least some constitutional challenges can be presented
to the Board and, based on that conclusion, upheld the
Veterans Court’s dismissal of an appeal for lack of juris-
diction where there was no relevant Board decision,
including on the constitutional issue. Ledford v. West, 136
F.3d 776 (Fed. Cir. 1998). We do not see how Mr. Harris’s
unconstitutional-delay challenge could justify an excep-
tion to the “decision” requirement of 38 U.S.C. § 7252.
Indeed, Mr. Harris has not alleged facts sufficient to
support his constitutional challenge. Under Mr. Harris’s
premise that he has a constitutionally protected property
interest in the benefits he alleges have been improperly
reduced, see Cushman v. Shinseki, 576 F.3d 1290, 1296–
97 (Fed. Cir. 2009), the pertinent requirement of due
process is that the individual receive notice and a fair
opportunity to be heard “‘at a meaningful time and in a
meaningful manner,’” Mathews v. Eldridge, 424 U.S. 319,
332–33 (1976); see Cushman, 576 F.3d at 1296–97. But
even if that requirement could be found violated by delays
in some situations, we see no colorable basis for finding a
violation here. Mr. Harris cannot complain of delay by
the Board in reviewing the November 12 Regional Office
rating decision: he gave the Board hardly any time, filing
an appeal to the Veterans Court only a few weeks after
that Regional Office decision. A complaint about expected
delay by the Board is speculative at this point, both as to
duration and as to reasons, making any due-process
evaluation impossible. If Mr. Harris’s complaint is in-
HARRIS v. MCDONALD 5
stead about delays in the Regional Office, he has not
furnished specifics allowing evaluation of the course of
events and reasons for any delays; and in any event, he
has given us no basis for concluding that Board review
was or is unavailable as a remedy for any unconstitution-
ally excessive delay. See Lamb v. Principi, 284 F.3d 1378,
1383 (Fed. Cir. 2002) (upholding Veterans Court denial of
mandamus relief, noting Board’s authority to require
expedition in some circumstances).
CONCLUSION
We affirm the Veterans Court’s dismissal of
Mr. Harris’s appeal.
No costs.
AFFIRMED