Case: 22-1618 Document: 26 Page: 1 Filed: 10/17/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT THORNTON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1618
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7749, Senior Judge Mary J.
Schoelen.
______________________
Decided: October 17, 2022
______________________
ROBERT G. THORNTON, Corona, CA, pro se.
CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI,
PATRICIA M. MCCARTHY; CHRISTINA LYNN GREGG, Y. KEN
LEE, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Case: 22-1618 Document: 26 Page: 2 Filed: 10/17/2022
2 THORNTON v. MCDONOUGH
______________________
Before MOORE, Chief Judge, CHEN and STOLL, Circuit
Judges.
PER CURIAM.
Robert Thornton appeals the decision of the Court of
Appeals for Veterans Claims (Veterans Court) affirming
the decision of the Board of Veterans’ Appeals that his ap-
peal was untimely. Because we lack jurisdiction, we dis-
miss his appeal.
BACKGROUND
Mr. Thornton, an Army veteran, filed for service-con-
nected disability benefits in 2007. This case is
Mr. Thornton’s fourth appeal arising out of these claims.
After a series of decisions in Mr. Thornton’s case, in De-
cember 2012, a Veterans Affairs regional office (RO) issued
a decision that it “considered a full grant of benefits sought
on appeal.” SAppx. 2. 1 A letter accompanying this decision
informed Mr. Thornton that he had “one year from the date
of [the] letter to appeal the decision.” Id. at 3.
Mr. Thornton timely filed his notice of disagreement
(NOD) in November 2013 and elected the “[t]raditional ap-
peal process” in December 2013. Id. at 46.
In response to Mr. Thornton’s November 2013 NOD, on
June 4, 2014, the RO issued a decision increasing
Mr. Thornton’s benefits and granting an earlier effective
date for the awards of benefits. On the same day, the RO
also mailed a letter enclosing a statement of the case (SOC)
and advising Mr. Thornton of his appellate rights and re-
sponsibilities: If he wanted to appeal his case to the Board,
he needed to “file a formal appeal” with the RO “within 60
1 “SAppx.” refers to the supplemental appendix filed
by the Government.
Case: 22-1618 Document: 26 Page: 3 Filed: 10/17/2022
THORNTON v. MCDONOUGH 3
days from the date of this letter or within the remainder, if
any, of the one-year period from the date of the letter noti-
fying [him] of the action that [he has] appealed,” whichever
was later. SAppx. 43. The letter emphasized that if he
“need[ed] more time to file [his] appeal, [he] should request
more time before the time limit . . . expire[d],” and that if
the VA did not hear from him within this period, it would
close his case. Id.
On February 2, 2015, the Board received
Mr. Thornton’s appeal of the June 2014 RO decision. In
June 2015, the RO issued a decision finding Mr. Thornton’s
appeal untimely because it was received more than 60 days
after the date of the June 2014 SOC, explaining that the
June 2014 RO decision on Mr. Thornton’s claims had be-
come final. Mr. Thornton appealed the June 2015 RO de-
cision to the Board.
In July 2019, the Board issued its decision denying
Mr. Thornton’s appeal. The Board explained that “because
the June 2014 SOC was issued after” the expiration of “the
[one]-year appeal period following the date of notification
of the December 2012 RO decision,” Mr. Thornton’s “dead-
line to file [the a]ppeal was 60 days after June 4, 2014,” or
August 4, 2014. SAppx. 5. The Board found that
Mr. Thornton’s appeal was received on February 2, 2015—
far more than 60 days after June 4, 2014—and concluded
it was untimely. Id. The Board also explained that alt-
hough exceptions to the timeliness requirement for such
appeals exist, none of those exceptions applied to
Mr. Thornton. Id. Mr. Thornton appealed this Board deci-
sion to the Veterans Court. Id. at 1.
On December 21, 2021, the Veterans Court affirmed
the Board’s decision. That court explained that it saw no
error in the Board’s bases for determining that
Mr. Thornton’s appeal was untimely. Further, the Veter-
ans Court determined that his various claims that the
Board and the VA had committed statutory and
Case: 22-1618 Document: 26 Page: 4 Filed: 10/17/2022
4 THORNTON v. MCDONOUGH
constitutional violations and fraud were subsidiary to, and
thus rose and fell with, his challenge to the Board’s finding
of untimeliness. SAppx. 6–14.
Mr. Thornton now appeals the Veterans Court’s affir-
mance of the Board’s decision.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is statutorily limited. We may only review challenges to
the interpretation or “validity of any statute or regulation.”
38 U.S.C. § 7292. Except to the extent that an appeal pre-
sents a constitutional issue, we cannot review challenges
to underlying factual determinations or application of law
to facts. § 7292(d)(2).
Whether an appeal is timely filed is a factual determi-
nation that this court may not review. See Albun v. Brown,
9 F.3d 1528, 1530 (Fed. Cir. 1993) (holding that we lacked
jurisdiction over a claim that a notice of appeal was timely
filed because it involved only factual matters). Because the
Veterans Court affirmed the dismissal of Mr. Thornton’s
appeal based on the Board’s factual finding that
Mr. Thornton did not file his appeal before the filing dead-
line, we lack jurisdiction to review Mr. Thornton’s appeal
of the timeliness determination. § 7292(d)(2). Although
Mr. Thornton also alleges constitutional violations on ap-
peal, Appellant’s Br. 26–28 (asserting that the Board and
the Veterans Court violated his Due Process and Equal
Protection rights when they denied his appeal as un-
timely), he provides no further detail or support for his
claim other than the determination that the appeal was un-
timely. Our court lacks jurisdiction over assertions that
are “constitutional in name” only. Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999). Stated another way, labeling
the Veterans Court’s decision as a constitutional violation
does not confer jurisdiction that we otherwise lack. Be-
cause the only issue here involves a challenge to the fact
Case: 22-1618 Document: 26 Page: 5 Filed: 10/17/2022
THORNTON v. MCDONOUGH 5
finding that Mr. Thornton’s appeal was untimely, we lack
jurisdiction. § 7292(d)(2).
CONCLUSION
We have considered Mr. Thornton’s remaining argu-
ments and find them unpersuasive. Mr. Thornton’s appeal
is dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.