May v. McDonough

Case: 22-1803 Document: 28 Page: 1 Filed: 03/06/2023

United States Court of Appeals

for the Federal Circuit

______________________

FRANK MAY, III,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2022-1803

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 21-874, Chief Judge Margaret C.

Bartley.

______________________

Decided: March 6, 2023

______________________

FRANK MAY, III, Muskegon Heights, MI, pro se.

STEPHEN J. SMITH, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Wash-

ington, DC, for respondent-appellee. Also represented by

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-

eral Counsel, United States Department of Veterans Af-

fairs, Washington, DC.

______________________

Case: 22-1803 Document: 28 Page: 2 Filed: 03/06/2023

2 MAY v. MCDONOUGH

Before NEWMAN, LOURIE, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Dissenting opinion filed by Circuit Judge NEWMAN.

PROST, Circuit Judge.

Frank May, III, appeals the decision of the U.S. Court

of Appeals for Veterans Claims (“Veterans Court”) dismiss-

ing his appeal for lack of jurisdiction. Because the Board

of Veterans’ Appeals (“Board”) never issued a decision from

which Mr. May could appeal, we affirm.

BACKGROUND

Mr. May is a helpless child of a deceased veteran.

SAppx2. 1 The Department of Veterans Affairs (“VA”)

granted Mr. May entitlement to dependency and indemnity

compensation (“DIC”) benefits on October 18, 2018, with an

effective date of May 18, 2016. SAppx7. In the same deci-

sion, the VA concluded that Mr. May’s entitlement to DIC

benefits ended on February 1, 2017, when he married

Juanita Johnson. Mr. May now seeks a reinstatement of

DIC benefits based on his divorce from Ms. Johnson on Sep-

tember 20, 2018. 2 Appellant’s Informal Br. 4; SAppx2.

Mr. May filed a notice of appeal to the Veterans Court

on February 4, 2021, listing the date of the Board’s decision

as February 19, 2019. SAppx4. But the Board had not

1 “SAppx” refers to the government’s supplemental

appendix.

2 See 38 U.S.C. § 103(e) (“The marriage of a child of

a veteran shall not bar recognition of such child as the child

of the veteran for benefit purposes if the marriage is void,

or has been annulled by a court with basic authority to ren-

der annulment decrees unless the Secretary determines

that the annulment was secured through fraud by either

party or collusion.”).

Case: 22-1803 Document: 28 Page: 3 Filed: 03/06/2023

MAY v. MCDONOUGH 3

rendered a decision on February 19, 2019; rather, Mr. May

had received correspondence that day from a VA regional

office certifying an appeal to the Board. SAppx6. Accord-

ingly, the Secretary moved to dismiss Mr. May’s appeal, ar-

guing that the Veterans Court’s jurisdiction is limited to

appeals from Board decisions. See SAppx2.

On May 19, 2021, the Veterans Court ordered Mr. May

to show cause why his appeal should not be dismissed. Id.

In a series of letters to the Veterans Court between May 27,

2021, and June 11, 2021, Mr. May asked that his appeal

not be dismissed and that, instead, his DIC benefits be re-

instated because of his divorce. Id. Mr. May did not iden-

tify a Board decision from which he was appealing, nor did

he argue that the Board had unreasonably delayed in ren-

dering its decision.

On February 17, 2022, the Veterans Court dismissed

Mr. May’s appeal for lack of jurisdiction. SAppx3. The

court explained that its jurisdiction is limited to appeals

from Board decisions and that, absent such a decision, it

could not consider Mr. May’s appeal. SAppx2–3 (citing

38 U.S.C. §§ 7252(a) and 7266(a)). Because Mr. May had

not identified any Board decision, the court concluded that

it must dismiss his appeal. SAppx3. Mr. May sought re-

consideration, again urging reinstatement of his DIC ben-

efits because of his divorce, and the Veterans Court denied

reconsideration on April 26, 2022. SAppx1.

Mr. May’s appeal to this court followed.

DISCUSSION

In appeals from the Veterans Court, we “decide all rel-

evant questions of law, including interpreting constitu-

tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).

We “may not review (A) a challenge to a factual determina-

tion, or (B) a challenge to a law or regulation as applied to

the facts of a particular case.” Id. § 7292(d)(2).

Case: 22-1803 Document: 28 Page: 4 Filed: 03/06/2023

4 MAY v. MCDONOUGH

Mr. May asks that we “give consideration that [he] was

granted by the [VA] ‘Permanent incapacity for self-support

. . . established May 18, 2018.’” Appellant’s Informal Br. 4.

He seeks reconsideration of the Veterans Court’s decision

dismissing his appeal but articulates no basis for doing so.

A

The Veterans Court’s jurisdiction is limited by statute.

It has “exclusive jurisdiction to review decisions of the

Board of Veterans’ Appeals.” 38 U.S.C. § 7252(a) (empha-

sis added). And § 7266, which governs notices of appeal to

the Veterans Court, assumes that the Board has rendered

a decision. See 38 U.S.C. § 7266(a).

Everyone agrees that no Board decision exists here.

Accordingly, the Veterans Court was right to dismiss

Mr. May’s appeal because it lacks jurisdiction over it.

As best we can tell, this entire case arises because

Mr. May made a mistake. Statements in Mr. May’s corre-

spondence to the Veterans Court urging it to reconsider its

dismissal imply that Mr. May misunderstood the distinc-

tion between the Board of Veterans’ Appeals and the Court

of Appeals for Veterans Claims. If that is indeed what hap-

pened, it is an understandable error for a nonlawyer to

make. We think it would be helpful to clarify to Mr. May

that no court has said that his benefits cannot be rein-

stated; he may still make his arguments, he just needs to

make them to the right people. His request for reinstate-

ment of DIC benefits must be made to the Board of Veter-

ans’ Appeals, not the Court of Appeals for Veterans Claims.

Once the Board decides his case, if it decides against

Mr. May, then he can appeal to the Veterans Court.

B

The dissent would hold that the Veterans Court has ju-

risdiction on direct appeal to review the reasonableness of

the VA’s administrative delay in issuing a Board decision

and would vacate and remand this case for the Veterans

Case: 22-1803 Document: 28 Page: 5 Filed: 03/06/2023

MAY v. MCDONOUGH 5

Court to do that. Such a holding would represent a marked

departure from our jurisprudence and would not comport

with the governing statutory provisions cited above that

limit the Veterans Court’s jurisdiction to review of Board

decisions.

The dissent relies on 38 U.S.C. § 7261(a)(2). But § 7261

defines the Veterans Court’s scope of review. See 38 U.S.C.

§ 7261 (titled “Scope of Review”). Particularly when read

in light of § 7252 (which is titled “Jurisdiction; finality of

decisions”), the provision only applies when the Veterans

Court otherwise has jurisdiction—it does not inde-

pendently confer jurisdiction. 3 See Mayer v. Brown,

37 F.3d 618, 620 (Fed. Cir. 1994) (“Section 7261 merely sets

out the scope of the review to be conducted by the [Veterans

Court] in cases within its jurisdiction; it does not itself cre-

ate jurisdiction in the [Veterans Court].”), overruled on

other grounds by Bailey v. West, 160 F.3d 1360, 1368

(Fed. Cir. 1998). This is not to say that Mr. May was with-

out recourse to resolve any unreasonable delay. For exam-

ple, he could have filed a petition for a writ of mandamus

challenging any Board delay. See, e.g., Martin, 891 F.3d

1338. The Veterans Court would have then been empow-

ered, under the All Writs Act, 28 U.S.C. § 1651(a), to issue

3 We have observed that § 7261(a)(2), which permits

the Veterans Court to “compel action of the Secretary un-

lawfully withheld or unreasonably delayed,” is based on a

similar scope-of-review provision in the Administrative

Procedure Act. Martin v. O’Rourke, 891 F.3d 1338, 1343

(Fed. Cir. 2018) (citing 5 U.S.C. § 706(1)). And, as the D.C.

Circuit observed in Telecommunications Research & Action

Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), the Adminis-

trative Procedure Act “unquestionably does not confer an

independent grant of jurisdiction.” Id. at 77–78 (discussing

5 U.S.C. § 706(1), and citing Califano v. Sanders, 430 U.S.

99, 107 (1977)).

Case: 22-1803 Document: 28 Page: 6 Filed: 03/06/2023

6 MAY v. MCDONOUGH

a writ to “protect its future jurisdiction.” See Martin,

891 F.3d at 1343 (emphasis added) (cleaned up). Instead,

he filed a direct appeal rather than a petition for a writ of

mandamus 4 and never argued (or even hinted) that the two

years that had elapsed since the RO certified his appeal

constituted an unreasonable delay. Under these circum-

stances, it would be improper to examine administrative

delay, particularly when, because Mr. May didn’t argue

that the Board unreasonably delayed in issuing a decision,

the Secretary never had an opportunity to address it.

If a pro se appellant files a direct appeal without wait-

ing for a final Board decision and argues that the Board has

unreasonably delayed in issuing a decision, we cannot say

that it would not be appropriate, in some circumstances,

for the Veterans Court to construe the appeal as a petition

for a writ of mandamus and proceed accordingly. But we

are not presented with that issue because that is not what

happened here: Mr. May’s appeal to both the Veterans

Court and to this court addressed only the merits. We can-

not, therefore, fault the Veterans Court for adhering to the

statutory limits of its jurisdiction and dismissing Mr. May’s

appeal.

CONCLUSION

We have considered Mr. May’s remaining arguments

and find them unpersuasive. For the reasons set forth

above, we affirm the Veterans Court’s dismissal of

Mr. May’s appeal.

AFFIRMED

COSTS

No costs.

4 This is merely an observation. It is not a criticism,

as the dissent characterizes it. See Dissent 6.

Case: 22-1803 Document: 28 Page: 7 Filed: 03/06/2023

United States Court of Appeals

for the Federal Circuit

______________________

FRANK MAY, III,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2022-1803

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 21-874, Chief Judge Margaret C.

Bartley.

______________________

NEWMAN, Circuit Judge, dissenting.

The question before us is whether the Court of Appeals

for Veterans Claims (the “Veterans Court”) has jurisdiction

to consider this appeal from the decision of a Department

of Veterans Affairs (“VA”) regional office. Appellant Frank

May, III, filed a timely appeal to the Board of Veterans’

Appeals (the “Board”), and after two years of inaction he

filed an appeal to the Veterans Court. That court held it

does not have jurisdiction “[b]ecause the Board did not

Case: 22-1803 Document: 28 Page: 8 Filed: 03/06/2023

2 MAY v. MCDONOUGH

issue a final decision,” and dismissed the appeal. 1 However,

38 U.S.C. § 7261(a)(2) authorizes the Veterans Court to

“compel action of the Secretary unlawfully withheld or un-

reasonably delayed.” Such authority is jurisdictional, for

“a tribunal’s ‘power to hear a case’ [is] a matter that ‘can

never be forfeited or waived.’” Union Pac. R.R. Co. v. Bhd.

of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjust-

ment, Cent. Region, 558 U.S. 67, 81 (2009) (quoting Ar-

baugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). From my

colleagues’ ruling that the Veterans Court lacks jurisdic-

tion of this appeal, I respectfully dissent.

DISCUSSION

Frank May, III is the disabled child of a deceased vet-

eran. The VA regional office found that May was disabled

from birth, with “permanent incapacity for self-support,”

and he received a rating decision granting dependency and

indemnity compensation (DIC) effective May 18, 2016.

DIC is not available to married children of veterans.

See 38 U.S.C. § 101(4)(A). May was married on February

14, 2017, and divorced on September 20, 2018. The VA ter-

minated his DIC as of February 1, 2017. After the divorce

he requested reinstatement of the DIC. The Veterans Act

contains provisions pertaining to marriage of a veteran’s

child, including:

38 U.S.C. § 103 Special provisions relating to

marriages—

***

(e) The marriage of a child of a veteran shall not

bar recognition of such child as the child of the vet-

eran for benefit purposes if the marriage is void, or

1 May v. McDonough, No. 21-874, 2022 WL 484328

(Vet. App. Mar. 11, 2022) (“Vet. Ct. Order”).

Case: 22-1803 Document: 28 Page: 9 Filed: 03/06/2023

MAY v. MCDONOUGH 3

has been annulled by a court with basic authority

to render annulment decrees unless the Secretary

determines that the annulment was secured

through fraud by either party or collusion.

The regulations include:

38 C.F.R. § 3.55 Reinstatement of benefits eli-

gibility based upon terminated marital rela-

tionships—

***

(b)(1) Marriage of a child shall not bar the furnish-

ing of benefits to or on account of such child, if the

marriage:

(i) Was void, or

(ii) Has been annulled . . . .

The regional office did not reinstate May’s DIC, and he ap-

pealed to the Board. Actions of a regional office are subject

to review by the Board, in accordance with 38 U.S.C.

§ 7104:

38 U.S.C. § 7104 Jurisdiction of the Board; de-

cisions; notice—

(a) All questions in a matter which under section

511(a) of this title is subject to decision by the Sec-

retary shall be subject to one review on appeal to

the Secretary. Final decisions on such appeals

shall be made by the Board. Decisions of the Board

shall be based on the entire record in the proceed-

ing and upon consideration of all evidence and ma-

terial of record and applicable provisions of law and

regulation.

The record contains a letter to May, signed “Regional Office

Director” and dated February 19, 2019, stating:

Case: 22-1803 Document: 28 Page: 10 Filed: 03/06/2023

4 MAY v. MCDONOUGH

We have certified your appeal to the Board of Vet-

erans’ Appeals (Board) in Washington, D.C.

SAppx6. 2

The Board did not act on May’s appeal, and on Febru-

ary 4, 2021, he filed an appeal to the Veterans Court. On

the government’s motion, the Veterans Court dismissed

May’s appeal, stating:

Absent a final Board decision, the Court lacks ju-

risdiction to consider an appeal. . . . Because the

Board did not issue a final decision involving Mr.

May on February 19, 2019, the Court will dismiss

the instant appeal. If and when a final Board deci-

sion is issued, any matter determined in such a de-

cision that is adverse to Mr. May may be appealed

to this Court.

Vet. Ct. Order, at 1.

This appeal followed. May states that he filed a timely

appeal to the Board and has received no action. He states

that he meets the requirements for reinstatement of his

DIC and requests judicial relief. The government states

that the Veterans Court correctly dismissed the appeal for

lack of jurisdiction.

Jurisdiction of the Veterans Court

Jurisdiction is “a tribunal’s ‘power to hear a case,’ a

matter that ‘can never be forfeited or waived.’” Union Pac.

R.R. Co., 558 U.S. at 81 (quoting Arbaugh, 546 U.S. at 514).

The legislative plan for veterans’ compensation claims is

that the Board shall review decisions of a VA regional of-

fice, before appeal is taken to the Veterans Court:

2 SAppx refers to the Supplemental Appendix filed

by the government.

Case: 22-1803 Document: 28 Page: 11 Filed: 03/06/2023

MAY v. MCDONOUGH 5

38 U.S.C. § 7266 Notice of appeal—

(a) In order to obtain review by the Court of Ap-

peals for Veterans Claims of a final decision of the

Board of Veterans’ Appeals, a person adversely af-

fected by such decision shall file a notice of appeal

with the Court within 120 days after the date on

which notice of the decision is issued pursuant to

section 7104(e) of this title.

The statute also authorizes the Veterans Court to “compel

action of the Secretary” in certain circumstances:

38 U.S.C. § 7261 Scope of Review—

(a) In any action brought under this chapter, the

Court of Appeals for Veterans Claims, to the extent

necessary to its decision and when presented,

shall—

(1) decide all relevant questions of law, in-

terpret constitutional, statutory, and regu-

latory provisions, and determine the

meaning or applicability of the terms of an

action of the Secretary;

(2) compel action of the Secretary unlaw-

fully withheld or unreasonably delayed;

The grant of the power to “compel action of the Secretary”

in situations of unreasonable delay was added by the Vet-

erans’ Benefits Amendments of 1989, Pub. L. No. 101-237,

§ 602, 103 Stat. 2061, 2095, following a legislative hearing

in which it was reported that the average time for decision

by the Board was about fourteen months, and that approx-

imately twenty percent of Board decisions took nearly one-

and-a-half years. Hearing on Oversight of the Board of Vet-

erans’ Appeals: Hearing Before the Senate Comm. on Veter-

ans’ Affairs, 100th Cong. 9–10 (1988) (statement of

Kenneth E. Eaton, Chairman of the Board).

Case: 22-1803 Document: 28 Page: 12 Filed: 03/06/2023

6 MAY v. MCDONOUGH

38 U.S.C. § 7261(a)(2) authorizes the Veterans Court to

compel agency action when action is unreasonably delayed.

Such power is premised on the court’s jurisdiction lest the

court’s authority “be defeated by an agency that fails to re-

solve disputes.” Telecomms. Rsch. & Action Ctr. v. FCC,

750 F.2d 70, 76 (D.C. Cir. 1984).

The government cites decisions denying Veterans

Court jurisdiction in the absence of a Board final decision,

viz, Breeden v. Principi, 17 Vet. App. 475, 477 (2004) (“Our

jurisdiction is limited to appeals from final decisions of the

Board.”); Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir.

2000) (The party seeking judicial relief must “present a re-

quest for a benefit to the Board, then receive a decision on

that request.”). However, § 7261(a)(2) assigns authority to

the Veterans Court to assure timely action by the VA.

The panel majority states that “this entire case arises

because Mr. May made a mistake” and “misunderstood the

distinction between the Board of Veterans’ Appeals and the

Court of Appeals for Veterans Claims.” Maj. Op. at 4. That

is contrary to the record. The government agrees that May

filed a timely appeal to the Board of Veterans’ Appeals.

Only after two years of Board inaction did he seek the at-

tention of the Veterans Court.

The majority also criticizes the form of May’s action in

the Veterans Court, stating that he “filed a direct appeal

rather than a petition for a writ of mandamus.” Maj. Op. at

6. It is accurate that May did not caption his appeal as a

petition for writ of mandamus. Although “an appellate

court may sometimes elect to treat an attempted appeal as

if it were a petition for a writ of mandamus,” United States

v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993), neither the

Veterans Court nor this court made that election, which

could have resolved May’s situation. See Cohen v. Benefi-

cial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (when in-

terpreting the jurisdictional scope of final decisions under

Case: 22-1803 Document: 28 Page: 13 Filed: 03/06/2023

MAY v. MCDONOUGH 7

28 U.S.C. § 1291, courts should employ a “practical” rather

than “technical” approach).

The mandamus process has been invoked, lest judicial

review be thwarted if the reviewable agency fails to act.

See Fed. Trade Comm’n v. Dean Foods Co., 384 U.S. 597,

603 (1966). The panel majority acknowledges that the Vet-

erans Court could have treated this appeal as a petition for

a writ of mandamus. A focus of mandamus is to ensure

justice is done and that government officers do their duties.

It is especially important to avoid allowing formalism to

defeat justice when litigants are unrepresented.

The panel majority states that May never complained

about delay. Maj. Op. at 5–6. That is incorrect, for both

May and the Veterans Court refer to the regional office’s

letter dated February 19, 2019, in his appeal to the Veter-

ans Court filed in February 2021.

May waited two years before appealing to the Veterans

Court, seeking action on his request for DIC reinstate-

ment. 3 It is undisputed that the Veterans Court has juris-

diction over mandamus petitions related to delay in Board

actions. When the Veterans Court was established by the

Veterans’ Judicial Review Act of 1988, 4 the goal was for

“each individual veteran to receive from the Government

every benefit and service to which he or she may be entitled

under law.” Hearing on Judicial Review Legislation, Before

S. Comm. on Veterans’ Affairs, 100th Cong. 2 (1988) (state-

ment of Sen. Alan Cranston).

There is no jurisdictional bar to the Veterans Court’s

authority to remedy unreasonable delay, as authorized by

§ 7261(a)(2). The dismissal for lack of jurisdiction should

be reversed, with remand to the Veterans Court for action.

3Now, four years have elapsed since his appeal to

the Board.

4 Pub. L. 100-687, 102 Stat. 4105.

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8 MAY v. MCDONOUGH

My colleagues’ dismissal leaves Mr. May with no recourse

and no remedy. I respectfully dissent.