Case: 22-1738 Document: 19 Page: 1 Filed: 09/07/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SETH HOOPER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1738
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-0219, Judge Coral Wong Pi-
etsch.
______________________
Decided: September 7, 2022
______________________
SETH HOOPER, Hoboken, NJ, pro se.
JOSHUA MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 22-1738 Document: 19 Page: 2 Filed: 09/07/2022
2 HOOPER v. MCDONOUGH
______________________
Before PROST, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Seth A. Hooper appeals an order of the Court of Ap-
peals for Veterans Claims (“Veterans Court”) denying his
petition for a writ of mandamus. Mr. Hooper’s mandamus
petition sought to expedite matters before the Board of Vet-
erans’ Appeals (“Board”)—he requested that the Veterans
Court compel the Secretary of Veterans Affairs to issue
docket numbers for and advance his Board appeals. This
appeal presents challenges only to the Veterans Court’s
factual determinations and its application of a settled legal
standard to the circumstances of Mr. Hooper’s petition. Be-
cause the appeal does not raise legal issues within our lim-
ited jurisdiction, we dismiss.
BACKGROUND
Mr. Hooper is a veteran who served several tours on
active duty. In January 2020, after a series of challenges
to his education benefit level, the Board determined his
benefit level at 100 percent. S.A. 65. 1 The Veterans Affairs
Regional Office (“RO”) then calculated a dollar amount of
corresponding retroactive entitlements. S.A. 41–45.
Mr. Hooper challenged that determination as an underpay-
ment of $3,138.58 and he cited a discrepancy between cal-
culations in an earlier RO letter as evidence of error.
S.A. 49–51. The Board remanded and suggested that the
RO determine which calculation was correct and explain
why. S.A. 51. In October 2020, the RO provided additional
explanation for its calculation but did not increase the
award amount. S.A. 41. When Mr. Hooper appealed the
October 2020 RO decision, the Board remanded for
1 S.A. refers to the appendix submitted with the gov-
ernment’s informal response brief.
Case: 22-1738 Document: 19 Page: 3 Filed: 09/07/2022
HOOPER v. MCDONOUGH 3
recalculation again. S.A. 30–33. In May 2021, on remand,
the RO awarded Mr. Hooper an additional $501.20. S.A.
24. In July 2021, Mr. Hooper simultaneously filed a notice
of disagreement (“NOD”) with the May 2021 RO decision
and a motion for advancement on the docket (“MFA”). Ap-
pellant’s Informal Br. Att. 1. 2
In January 2022, Mr. Hooper filed the mandamus peti-
tion at issue here. S.A. 7–12. He asked the Veterans Court
to compel the Secretary to issue a docket number for the
July 2021 NOD and rule on the simultaneously filed MFA.
The petition also sought to compel action on a separate dis-
ability appeal—extended discussion of which is unneces-
sary here—that was remanded from the Veterans Court to
the Board in December 2021. As with the July 2021 NOD
and MFA, Mr. Hooper sought a docket number for the re-
manded case and for the Board to act on it. S.A. 12.
The Veterans Court denied Mr. Hooper’s petition.
Hooper v. McDonough, No. 22-0219, 2022 WL 278226, at *2
(Vet. App. Jan. 31, 2022) (“CAVC Op.”). With respect to the
remanded case, the Veterans Court concluded that since
the mandate had yet to issue and the case had not been
returned to the Board, the Board had not delayed. Id.
at *1. The court declined to grant relief based on the pos-
sibility of future delay. Id. As for the July 2021 NOD and
MFA, the court determined that this claim was also based
on an assertion of unreasonable delay and was subject to
an analysis of the factors outlined in Telecommunications
Research & Action Center v. FCC, 750 F.2d 70, 79 (D.C. Cir.
1984) (“TRAC”), which we adopted in Martin v. O’Rourke,
891 F.3d 1338, 1348 (Fed. Cir. 2018). CAVC Op., 2022 WL
278226, at *1. Based on its analysis of the TRAC factors,
the Veterans Court concluded that the circumstances did
2 We cite Mr. Hooper’s exhibits by the attachment
numbers given because they do not include page numbers.
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4 HOOPER v. MCDONOUGH
not warrant a writ of mandamus based on unreasonable
delay. Mr. Hooper timely appealed.
DISCUSSION
Our review of Veterans Court decisions is limited. In
the absence of a constitutional issue, we lack jurisdiction to
“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). Our review does,
however, extend to “relevant questions of law.” Id.
§ 7292(d)(1). And, when “presented and necessary to a de-
cision,” we have jurisdiction to “review and decide any chal-
lenge to the validity of any statute or regulation or any
interpretation thereof.” Id. § 7292(c).
Likewise, the scope of our mandamus review is limited.
Our jurisdiction extends to those determinations on “man-
damus petitions that raise legal issues otherwise within
our jurisdiction.” Beasley v. Shinseki, 709 F.3d 1154, 1157
(Fed. Cir. 2013). For example, we have reviewed whether
the Veterans Court applied the correct legal standard when
ruling on a mandamus petition, Mote v. Wilkie, 976 F.3d
1337, 1340 (Fed. Cir. 2020), and interpreted statutes when
a petitioner’s legal right to relief depended on that inter-
pretation, Beasley, 709 F.3d at 1158–59; Wolfe v.
McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022). But “we
do not interfere with the [Veterans Court’s] role as the final
appellate arbiter of the facts underlying a veteran’s claim.”
Beasley, 709 F.3d at 1158.
Mr. Hooper’s challenge here does not raise any legal is-
sues within our jurisdiction. He does not contest the legal
standard applicable to his unreasonable-delay petition.
Mr. Hooper’s petition urged the Veterans Court to apply
the TRAC factors. S.A. 9–10. The Veterans Court did so.
Here, Mr. Hooper challenges only the determination that
they did not weigh in his favor. For example, he contends
that the Veterans Court erred in concluding, during its
analysis of the fourth TRAC factor, that granting his
Case: 22-1738 Document: 19 Page: 5 Filed: 09/07/2022
HOOPER v. MCDONOUGH 5
petition would shift resources away from adjudicating
other veterans’ claims. Instead of presenting legal ques-
tions, Mr. Hooper’s arguments merely raise issues about
factual findings and the application of a settled (and un-
challenged) legal standard to the facts of this case.
Further, the Veterans Court’s decision did not depend
on the validity or interpretation of any regulation or stat-
ute. Mr. Hooper argues that the Veterans Court decision
involved an interpretation of 38 C.F.R. § 20.800(c)(3). 3 Ap-
pellant’s Informal Br. 1–2. But the denial of mandamus
did not depend on § 20.800(c)(3) or otherwise rest on an in-
terpretation of it. Rather, the Veterans Court relied on the
TRAC factors to determine whether the delay Mr. Hooper
experienced was unreasonable and warranted manda-
mus—without any discussion or implicit reliance on
§ 20.800(c)(3). And an interpretation of § 20.800(c)(3) does
not bear upon the issues presented to this court either.
Thus, Mr. Hooper’s arguments about § 20.800(c)(3) do not
raise any issues within our jurisdiction.
Mr. Hooper contends that his procedural due process
rights are implicated here. Appellant’s Informal Br. 2. He
3 We assume that Mr. Hooper made this argument
with respect to CAVC No. 22-0219, though it is not clear if
he intended to do so. His opening brief cited CAVC No. 20-
7967 as the case supplying the order giving rise to this ap-
peal. Appellant’s Informal Br. 1. The order in that case
did discuss the meaning of 38 C.F.R. § 20.800(c)(3).
S.A. 36. But the government’s response noted that the No-
tice of Docketing in this court listed CAVC No. 22-0219 as
the originating case and that an appeal in CAVC No. 20-
7967 would have been untimely. Appellee’s Informal Br. 1
n.1. Mr. Hooper’s reply acknowledged that CAVC No. 20-
7967 is not at issue here and attached the order from CAVC
No. 22-0219 as the “correct order and judgment on appeal.”
Appellant’s Informal Reply Br. 1.
Case: 22-1738 Document: 19 Page: 6 Filed: 09/07/2022
6 HOOPER v. MCDONOUGH
argues that his procedural due process rights were violated
when (1) the Veterans Court “ignored the timeframe spec-
ified by [38 C.F.R. § 20.800(c)(3)]” in denying his petition
and (2) the docket numbers were not issued in a “timely”
manner, preventing him from tracking and ensuring the
timely adjudication of motions filed on the docket. Appel-
lant’s Informal Br. 2. But Mr. Hooper did not present ei-
ther of these arguments to the Veterans Court. And
because Mr. Hooper’s arguments on this point “appear[] to
be aimed at the merits of [his] claim” without “rais[ing] a
separate constitutional issue” they do not confer jurisdic-
tion. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir.
2007). Mere characterization of an issue as a constitutional
one is insufficient. Id. Although framed in terms of due
process, these arguments are not separate from
Mr. Hooper’s unsuccessful underlying claim that the
Board’s delay in assigning docket numbers and ruling on
his MFA was unreasonable. Cf. Mote, 976 F.3d at 1346 (“In
Martin, we addressed appellants’ separate due process
claims and observed that ‘a claim that a plaintiff has been
denied due process because of delayed agency action is es-
sentially no different than an unreasonable delay claim.’”
(quoting Martin, 891 F.3d at 1348)).
CONCLUSION
We have considered Mr. Hooper’s remaining argu-
ments but find them unpersuasive. Because Mr. Hooper’s
appeal raises no issues within our limited jurisdiction, we
dismiss.
DISMISSED
COSTS
No costs.
Hooper v. McDonough
Combined Opinion