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).
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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
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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:
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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.
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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).
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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.
