Wright v. McDonough

Case: 23-1360 Document: 34 Page: 1 Filed: 12/08/2023 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ PAUL WRIGHT, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2023-1360 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 20-8732, Judge Michael P. Allen. ______________________ Decided: December 8, 2023 ______________________ PAUL WRIGHT, Marietta, SC, pro se. JANA MOSES, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY. ______________________ Before PROST, TARANTO, and HUGHES, Circuit Judges. Case: 23-1360 Document: 34 Page: 2 Filed: 12/08/2023 2 WRIGHT v. MCDONOUGH PER CURIAM. Paul Wright appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his motion to recall the mandate and judg- ment of an earlier Veterans Court decision. For the rea- sons below, we dismiss. BACKGROUND In 2015, Mr. Wright first sought service-connected ben- efits for melanoma. Following a series of adverse decisions and corresponding appeals from Mr. Wright, the Board of Veterans’ Appeals (“Board”) made a determination of no service connection on February 7, 2020. S.A. 36. 1 Mr. Wright timely appealed that 2020 Board decision to the Veterans Court. The Secretary of Veterans Affairs (“Secretary”) responded by “conced[ing] that the Board did not provide an adequate statement of its reasons or bases for denying [Mr. Wright’s] claim” and contending that the Veterans Court should remand. S.A. 36. Mr. Wright ar- gued that the Veterans Court should reverse and award service connection instead of remanding to the Board. S.A. 38. The Veterans Court set aside the Board decision and remanded for further consideration of Mr. Wright’s claim. S.A. 36–40 (“Single-Judge Remand Decision”). Spe- cifically, the Veterans Court concluded that a remand was appropriate because the Board failed to consider Mr. Wright’s argument that his service exposure to ioniz- ing radiation put him at a higher risk for developing mela- noma from his service exposure to UV radiation. The Veterans Court determined that because “[t]he Board did not address appellant’s arguments . . . , it never weighed the evidence” and that a remand was required for the 1 S.A. refers to the appendix submitted with the gov- ernment’s informal response brief. Case: 23-1360 Document: 34 Page: 3 Filed: 12/08/2023 WRIGHT v. MCDONOUGH 3 Board to make necessary factfindings in the first instance. S.A. 38. Mr. Wright filed a timely motion for reconsideration or, in the alternative, a panel decision. S.A. 20–35. On Sep- tember 7, 2021, the Veterans Court granted the request for a panel decision, denied reconsideration, and adopted the single-judge decision as the decision of the panel. S.A. 18–19 (“Panel Remand Decision”). Judgment was en- tered on September 29, 2021, and the mandate issued on November 30, 2021. S.A. 16–17. Almost a year after the mandate issued, on November 22, 2022, Mr. Wright filed a “petition to vacate remand, and for statutory relief under 38 U.S.C. § 7261(a),” which the Veterans Court construed as a motion to recall the mandate and judgment. 2 See S.A. 8–15; S.A. 5. On Decem- ber 22, 2022, the Veterans Court denied the motion, con- cluding that Mr. Wright had “not demonstrated good cause or alleged unusual circumstances to recall [the] mandate” and that its “single-judge decision and the panel’s order af- firming the single-judge decision were both within [its] nor- mal practice and supported by caselaw.” S.A. 5–6 (“Recall Decision”). Mr. Wright filed an appeal on December 28, 2022. ECF No. 1-2 at 1. As it pertains to the Recall Decision, Mr. Wright’s appeal was timely filed. However, to the ex- tent Mr. Wright is challenging the Panel Remand Decision, 2 Initially, the Veterans Court had docketed Mr. Wright’s filing as a separate mandamus petition. However, after Mr. Wright explained that his filing was in- tended for the same docket number as the Panel Remand Decision, the filing was construed as a motion to recall the mandate and judgment. S.A. 5–6. Mr. Wright does not ar- gue that the Veterans Court should have treated his filing as a mandamus petition. Case: 23-1360 Document: 34 Page: 4 Filed: 12/08/2023 4 WRIGHT v. MCDONOUGH that appeal is out of time. Our jurisdiction is analyzed un- der 38 U.S.C. § 7292. DISCUSSION Our review of Veterans Court decisions is limited. We lack jurisdiction to “review (A) a challenge to a factual de- termination, or (B) a challenge to a law or regulation as ap- plied to the facts of a particular case” unless presented with a constitutional issue. 38 U.S.C. § 7292(d)(2). However, we have “jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpreta- tion thereof . . . , and to interpret constitutional and statu- tory provisions, to the extent presented and necessary to a decision.” Id. § 7292(c). Our review of the Veterans Court’s decision on a motion for recall is subject to these same ju- risdictional constraints. See Moreno v. Shinseki, 527 F. App’x 962, 964–65 (Fed. Cir. 2013) (nonprecedential) (dis- missing for lack of jurisdiction). First, it is unclear to what extent this appeal centers around an untimely challenge to the merits of the Panel Remand Decision. For example, Mr. Wright’s notice of ap- peal stated that it was seeking review of a December 22, 2022 decision, which is the date of the Recall Decision. ECF No. 1-2 at 1. However, the Single-Judge Remand De- cision, dated July 30, 2021, and adopted by the panel on September 7, 2021, was attached to the notice of appeal. Id. at 5–10. In response to the government’s motion to dis- miss, ECF No. 6, Mr. Wright contended that “[t]he July 2021 remand order is not on appeal” and that “[t]he deci- sion on appeal is the December 2022 order.” ECF No. 8 at 1–2. Still, Mr. Wright’s arguments appear primarily fo- cused on challenging the merits of the Panel Remand Deci- sion. Further, in his reply, Mr. Wright stated that he “did not invoke 38 U.S.C. § 7292(e) appellate review of that [re- mand] (or any other decision)” and seems to contend that he does not seek review of the December 2022 order either. Appellant’s Informal Reply Br. 1. Case: 23-1360 Document: 34 Page: 5 Filed: 12/08/2023 WRIGHT v. MCDONOUGH 5 To the extent Mr. Wright’s appeal does seek review of the Panel Remand Decision, we dismiss for lack of jurisdic- tion. See 38 U.S.C. § 7292(a) (“[R]eview shall be obtained by filing a notice of appeal with the [Veterans Court] within the time and in the manner prescribed for appeal to United States courts of appeals from United States district courts.”); 28 U.S.C. § 2107(b) (providing a 60-day time limit to appeal when one of the parties is the United States); Fe- dora v. MSPB, 848 F.3d 1013, 1016 (Fed. Cir. 2017) (“[A]ppeal periods to Article III courts are jurisdictional.”). Judgment was entered on the Panel Remand Decision on September 29, 2021, S.A. 17, and Mr. Wright did not file the present notice of appeal until December 28, 2022, ECF No. 1-2. Thus, any appeal of that decision is dismissed as untimely. Turning to the Veterans Court’s Recall Decision, Mr. Wright’s notice of appeal was timely filed as it relates to that decision. However, dismissal is appropriate here too because Mr. Wright’s challenge does not raise legal is- sues within our jurisdiction. One of Mr. Wright’s primary arguments seems to be that the Secretary lacked jurisdiction to deny him benefits under 38 U.S.C. § 511(a). First, to the extent this conten- tion challenges the merits of the Veterans Court’s Panel Remand Decision, it is untimely, as discussed above. To the extent the argument relates to the Recall Decision, it is underdeveloped and outside our jurisdiction. The Recall Decision does not mention § 511(a), nor does Mr. Wright argue that the decision necessarily implicates an interpre- tation of § 511(a). In fact, aside from contending that it affords him benefits, Mr. Wright has not presented—here or in his petition for recall at the Veterans Court—any pro- posed interpretation of § 511(a) that bears on this case. Thus, to the extent § 511(a) was implicated by the Recall Decision at all, Mr. Wright’s arguments challenge only the application of settled law to the facts of this case. Case: 23-1360 Document: 34 Page: 6 Filed: 12/08/2023 6 WRIGHT v. MCDONOUGH Next, Mr. Wright argues that under 38 U.S.C. § 7252(a) the Veterans Court lacked jurisdiction to remand to the Board. Section 7252(a) provides: The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals. The Secretary may not seek review of any such decision. The Court shall have power to affirm, modify, or reverse a de- cision of the Board or to remand the matter, as ap- propriate. Mr. Wright also made this argument to the Veterans Court in his “petition to vacate remand, and for statutory relief under 38 U.S.C. § 7261(a),” S.A. 13–14, but the court con- cluded that the “single-judge decision and the panel’s order affirming the single-judge decision were both within [its] normal practice and supported by caselaw,” S.A. 6. The crux of Mr. Wright’s argument seems to be that the Veter- ans Court was not permitted to remand here at least in part because the Secretary argued that a remand was the appropriate remedy. We understand this argument to pre- sent a challenge to the application of law to the facts of this case. Instead of presenting a legal argument about § 7252(a) or any Veterans Court interpretation of it, Mr. Wright’s arguments invite us to look to the particular circumstances here and find that remand was inappropri- ate. 3 Finally, although Mr. Wright’s response to the govern- ment’s motion to dismiss stated that “[t]he decision on 3 Mr. Wright also contends that the § 511(a) and § 7252(a) issues presented are “inherently constitutional.” Appellant’s Informal Br. 12. Because mere characteriza- tion of an issue as constitutional is insufficient to confer jurisdiction, this argument does not alter our analysis. See Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007). Case: 23-1360 Document: 34 Page: 7 Filed: 12/08/2023 WRIGHT v. MCDONOUGH 7 appeal is the December 2022 order,” ECF No. 8 at 1–2, in other places his briefing seems to suggest that he intends to present a freestanding challenge, untethered to any spe- cific decision of the Veterans Court, see Appellant’s Infor- mal Reply Br. 1–3, 3 n.1. Because this court’s jurisdiction over appeals from the Veterans Court extends only to deci- sions of that court, see 38 U.S.C. § 7292(a), we also dismiss Mr. Wright’s appeal to the extent it presents a general challenge to the proceedings below. CONCLUSION We have considered Mr. Wright’s remaining argu- ments in his briefing and his memorandum in lieu of oral argument, ECF No. 30, and find them unpersuasive. Be- cause this appeal raises no issues within our limited juris- diction, we dismiss. 4 DISMISSED COSTS No costs. 4 Mr. Wright has also filed a motion for sanctions. ECF No. 29. We have also considered that motion and deny it.