May v. Shinseki , 544 F. App'x 1002 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT J. MAY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7049
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2117, Judge Coral Wong
Pietsch.
______________________
Decided: November 13, 2013
______________________
ROBERT J. MAY, of Poland, Oregon, pro se.
RICHARD P. SCHROEDER, Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and SCOTT D. AUSTIN, Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel and TRACEY PARKER WARREN, Trial
2 MAY v. SHINSEKI
Attorney, of the United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, PROST, and MOORE, Circuit
Judges.
PER CURIAM.
Robert J. May appeals a decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
dismissing his appeal of a decision by the Board of Veter-
ans Appeals (“Board”) denying him service-connected
entitlements for his lumbar spine disability. May v.
Shinseki, No. 12-2117, 2012 WL 4478804 (Vet. App. Oct.
1, 2012), aff’d per curiam 2012 WL 6603669 (Vet. App.
Dec. 19, 2012). We affirm.
BACKGROUND
Mr. May served in the United States Marine Corps
from August 1974 to November 1986, and then in the
United States Army Reserve until January 1995. On
November 4, 2011, the Board issued a decision concluding
that: (1) Mr. May’s claim for service connection for a right
shoulder disability should be remanded to the Regional
Office; (2) the criteria for entitlement to service connec-
tion for thoracic spine disability had not been met; (3) the
criteria for entitlement to service connection for lumbar
spine disability had not been met; and (4) the criteria for
a disability rating in excess of 10% for incomplete paraly-
sis of the sciatic nerve had not been met.
On February 22, 2012, Mr. May timely filed his notice
of appeal, appealing “that portion of the Board’s Novem-
ber 4, 2011 decision” relating to the sciatic nerve disabil-
ity rating. Over the next four months, he filed a motion to
vacate the Board’s decision as it related to his lumbar
spine condition and two motions to reconsider that same
issue, all of which were denied. On June 26, 2012, while
MAY v. SHINSEKI 3
his first appeal was still pending before the Veterans
Court, Mr. May filed a second notice of appeal seeking
review of the portion of the November 4, 2011 decision
that related to his lumbar spine condition.
On October 1, 2012, the Veterans Court dismissed Mr.
May’s second notice of appeal as “unnecessary.” May,
2012 WL 4478804, at *1. The court noted that “[w]hen an
appellant appeals to this Court, it is a Board decision in
its entirety that is appealed,” and thus “all finally decided
claims addressed in the Board’s November 4, 2011, deci-
sion became subject to Court review” upon Mr. May’s
filing of his initial notice of appeal. Id. Mr. May filed a
motion for reconsideration, which was denied. May, 2012
WL 6603669, at *1. He now appeals the Veterans Court’s
dismissal of his second appeal.
DISCUSSION
This court’s review of Veterans Court decisions is
strictly limited by statute. Under 38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.”
We set aside Veterans Court interpretations only
when they are arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; contrary to
constitutional right, power, privilege, or immunity; in
excess of statutory jurisdiction, authority, or limitations,
or in violation of a statutory right; or without observance
of procedure required by law. 38 U.S.C. § 7292(d)(1). 1
1 The Secretary argues that we should not exercise
jurisdiction over this appeal because the Veterans Court’s
decision was not “final” and Mr. May was not “adversely
4 MAY v. SHINSEKI
Mr. May raises several challenges to the Veterans
Court’s dismissal of his appeal. First, he argues that the
Veterans Court’s decision that he may not bring two
separate appeals challenging the same Board decision
contravenes 38 U.S.C. § 7266 because it is the notice of
appeal that determines the scope of an appeal. Thus, he
insists that because his first notice of appeal expressly
limited its scope to a certain portion of the Board’s deci-
sion, the rest of that decision remained available for a
subsequent appeal. However, that section states only
that in order to obtain review of “a final decision of the
Board,” a person must file a notice of appeal with the
Veterans Court within 120 days. 38 U.S.C. § 7266(a).
That language is entirely consistent with the Veterans
Court’s conclusion that there should be only one notice of
appeal relating to any particular Board decision.
Second, Mr. May argues that the Veterans Court’s
policy of requiring claimants to challenge all aspects of a
Board decision in the same appeal violates due process
concerns because a claimant cannot fully respond to all
Board actions within a 30-page brief. This argument fails
as a matter of both law and fact. Federal courts have
routinely dismissed due process challenges based on page
limits. See, e.g., Watts v. Thompson, 116 F.3d 220, 224
(7th Cir. 1997) (finding no due process violation because
affected” by it because he remained free to address the
lumber spine disability issue in his pending appeal.
However, Mr. May explained in his Reply Brief that he
has already filed his Appellant’s Brief in that appeal and
addressed only the sciatic nerve rating. Moreover, the
Secretary responded to his brief by asserting that he had
therefore abandoned his right to appeal the lumbar spine
and thoracic disabilities. Thus, at this time it appears
that Mr. May has indeed been adversely affected in his
ability to appeal the Board’s decision on those issues.
MAY v. SHINSEKI 5
“[e]nforcing page limits and other restrictions on litigants
is rather ordinary practice”). Moreover, Rule 32(e) of the
Veterans Court’s Rules of Practice and Procedure permits
a claimant to seek permission to exceed the prescribed
page limit. Thus, Mr. May’s constitutional due process
rights were not violated by requiring him to appeal all of
the issues in the Board’s decision at once.
Third, Mr. May argues that the Veterans Court’s poli-
cy contravenes 38 U.S.C. § 7252(a) because it effectively
allows the Board to determine which claims are to be
appealed. This argument is illogical; the ruling simply
means that any issues the claimant wishes to appeal
must be addressed at the same time in one appeal. There
is no requirement that the claimant actually challenge
each and every issue in a Board decision.
Fourth, Mr. May suggests that the Veterans Court’s
decision contravenes the holdings in Henderson v.
Shinseki, 131 S. Ct. 1197 (2011), and Tyrues v. Shinseki,
631 F.3d 1380 (Fed. Cir. 2011). 2 However, neither of
those decisions is relevant here. Henderson addressed a
claimant’s failure to comply with the 120-day deadline for
filing a notice of appeal, and is therefore inapposite. 131
S. Ct. at 1206. In Tyrues, we held that where there is a
“mixed decision”—in which one claim is remanded and
another is denied—final determinations therein must be
2 In his brief, Mr. May cites to the Supreme Court’s
opinion in Tyrues v. Shinseki, 132 S. Ct. 75 (2011). How-
ever, that decision merely granted certiorari in order to
vacate and remand an earlier decision of this court in
light of Henderson, 131 S. Ct. 1197. The discussion in Mr.
May’s briefs appears to be based on that underlying
opinion, Tyrues, 631 F.3d 1380, which we reaffirmed in
pertinent part after briefing was concluded in this case.
See Tyrues v. Shinseki, No. 13-7007, 2013 WL 5567557
(Fed. Cir. Oct. 10, 2013).
6 MAY v. SHINSEKI
timely appealed even if that means separating them from
the remanded, non-final decisions. 631 F.3d at 1384-85.
Mr. May argues that Tyrues supports his position that a
veteran may bring multiple appeals from a single Board
decision. But Tyrues speaks only to the separate appeal-
ability of the final and non-final portions of a mixed
decision. Here, Mr. May has attempted to file separate
appeals of two different final determinations within the
same Board decision, and so Tyrues does not control.
The Veterans Court’s opinion relied instead on the ra-
tionale of Fagre v. Peake, 22 Vet. App. 188 (2008), in
which that court held that, in determining the timeliness
of an appeal, it is “the entire Board decision that consti-
tutes the final decision.” Id. at 191. Thus, “the appel-
lant’s motion for Board reconsideration [of one claim] . . .
served to abate the finality of the overall Board decision.”
Id. 3 The same principle applies here, as Mr. May’s notice
of appeal relating to one claim served as the appeal for
the overall Board decision. The Veterans Court therefore
did not err by concluding that Mr. May could not bring a
second appeal relating to that same decision.
Finally, Mr. May argues that the Veterans Court can-
not exercise plenary jurisdiction over the portion of the
Board decision that is currently the subject of a motion for
3 Although Mr. May sought reconsideration of the
Board’s decision regarding his lumbar spine claim, he did
so only after filing his initial notice of appeal. Thus, the
reconsideration motion did not abate the finality of the
Board’s decision. To the contrary, “any attempt by the
[Board] or the [Board] Chairman to order reconsideration
of a [Board] decision after [a notice of appeal] has been
timely filed with this Court is null and void unless the
Court first orders a remand.” Graves v. Principi, 294 F.3d
1350, 1352 (Fed. Cir. 2002) (internal quotation marks
omitted).
MAY v. SHINSEKI 7
revision under 38 U.S.C. § 7111. However, the Board’s
regulations clearly contemplate just such a situation, and
provide that the Board will stay its consideration of a
§ 7111 revision motion “upon receiving notice that the
Board decision that is the subject of the motion has been
appealed to a court of competent jurisdiction until the
appeal has been concluded or the court has issued an
order permitting, or directing, the Board to proceed with
the motion.” 38 C.F.R. § 20.1410. In fact, a challenge
under § 7111 is a collateral attack that is designed to be
brought only “[o]nce a VA decision has become final—
whether by completion or abandonment of the appeals
process.” May v. Nicholson, 19 Vet. App. 310, 317 (2005),
aff’d 208 F. App’x 924 (Fed. Cir. 2006) (quoting 63 Fed.
Reg. 27,534, 27,535 (May 10, 1998)). Thus, Mr. May will
be free to pursue his § 7111 claim after the conclusion of
his appeal.
Accordingly, because we discern no error in the Veter-
ans Court’s decision, the decision of the Veterans Court is
affirmed.
AFFIRMED
COSTS
Each side shall bear its own costs.