NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID C. CORSON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2154
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-1085, Chief Judge Robert N.
Davis, Judge Coral Wong Pietsch, Judge Joseph L. Toth.
______________________
Decided: November 8, 2018
______________________
DAVID C. CORSON, Keystone Heights, FL, pro se.
DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by MARTIN F. HOCKEY, JR., JOSEPH H. HUNT,
ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN,
JONATHAN KRISCH, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 CORSON v. WILKIE
______________________
Before MOORE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
Appellant David C. Corson appeals the U.S. Court of
Appeals for Veterans Claims (“Veterans Court”) decision
dismissing his claim that the Department of Veterans
Affairs (“VA”) violated his constitutional right to due
process for lack of jurisdiction. Corson v. Wilkie (Corson
II), No. 18-1085,
2018 WL 1721873, at *2 (Vet. App. Apr.
9, 2018). Because we lack jurisdiction, we dismiss.
BACKGROUND
Following our earlier decision holding that Mr.
Corson’s allegations were insufficient to raise a due
process claim, see Corson v. McDonald (Corson I), 662 F.
App’x 954, 957 (Fed. Cir. 2016), 1 Mr. Corson filed a peti-
tion for a writ of mandamus, seeking to compel the adju-
dication of a 2002 total disability rating based on his
individual unemployability (“TDIU”) claim, which seeks a
finding of TDIU retroactive to 1961. Appellee’s App. 50–
54. We issued an order denying the Petition.
Id. at 54;
see
id. (stating that Mr. Corson was “collaterally estopped
from relitigating whether there was [clear and unmistak-
able error] in” the Board of Veterans’ Appeals’ (“Board”)
prior decisions); Corson II,
2018 WL 1721873, at *2 n.1
(explaining, by the Veterans Court, that we denied a
construed petition for a writ of mandamus making many
of the same assertions).
In February 2018, Mr. Corson filed a “constitutional
complaint” with the Veterans Court, Appellee’s App. 13–
1 Because Corson I recited the facts in full, we pre-
sume familiarity with that opinion and recite only those
facts necessary to address subsequent developments.
CORSON v. WILKIE 3
49, arguing that the VA changed established rating
procedures for adjudicating VA decisions, destroyed
evidence of examinations, and inserted false evidence into
rating decisions,
id. at 22–24, as part of a continuing
“cover-up” that violated his Fifth Amendment constitu-
tional rights,
id. at 28. Mr. Corson challenged various VA
and Board decisions through 2001 and made clear that he
was not petitioning for a writ of mandamus, but rather
“for a determination . . . that the minimal due process the
VA owes [Mr. Corson] for his 2002 TDIU claim, [and other
rating decisions], . . . has not been provided.”
Id. at 24.
The Veterans Court dismissed the Complaint, ex-
plaining that (1) the Complaint was not a timely notice of
appeal because “the most recent decision referenced is 16
years old,” (2) the Complaint did not appear to relate to a
matter potentially within the Veterans Court’s jurisdic-
tion, and (3) the Complaint did not meet the pleading
requirements of Veterans Court Rule 21 2 because, inter
alia, the Petition lacked the facts necessary to understand
2 Veterans Court Rule 21(a) for “Extraordinary Re-
lief” requires a petition to:
(1) state the precise relief sought; (2) state the
facts necessary to understand the issues present-
ed by the petition; (3) state the reasons why the
Court should grant the petition, including why the
petitioner has a clear and indisputable right to
the writ and why there are inadequate alterna-
tive means to obtain the relief sought; (4) include
an appendix containing copies of any order or de-
cision or any other documents necessary to under-
stand and support the petition; and (5) describe
any public officer who is a respondent by name
and official title.
U.S. Vet. App. R. 21(a).
4 CORSON v. WILKIE
the alleged constitutional violation. Corson II,
2018 WL
1721873, at *2. The Veterans Court further explained
that it lacked jurisdiction over the matter because Mr.
Corson asserted “that this is not a petition for a writ of
mandamus.” 3
Id. at *1. In doing so, the Veterans Court
explained that the Complaint “comes close to being frivo-
lous” and warned Mr. Corson “not to submit any future
filing that ignores jurisdictional rules or attempts to re-
litigate matters that have been finally adjudicated.”
Id.
at *4.
In April 2018, Mr. Corson filed a motion for a panel
review comprised of three Veterans Court judges, Appel-
lee’s App. 8, and the Veterans Court entered judgment
upholding the panel’s Decision,
id. at 7.
DISCUSSION
I. Standard of Review
The scope of our review in an appeal from the Veter-
ans Court is limited by statute. Goodman v. Shulkin,
870
F.3d 1383, 1385 (Fed. Cir. 2017). We may review a Vet-
erans Court decision “with respect to the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof . . .
that was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a) (2012). “Except to the
extent an appeal . . . presents a constitutional issue,” 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).
3 Unlike a petition for a writ of mandamus, which
requests that the Veterans Court compel VA action, Mr.
Corson requested an independent Veterans Court deter-
mination of a due process violation. Appellee’s App. 24.
CORSON v. WILKIE 5
II. We Lack Jurisdiction over Mr. Corson’s Appeal
On appeal, Mr. Corson asserts that the Veterans
Court erred in finding that it lacked jurisdiction over his
constitutional claims, Appellant’s Br. 21, because the VA
violated his constitutional due process rights by changing
procedures for adjudicating VA decisions,
id. at 3–5.
Specifically, he contends that the VA “caused Fifth
Amendment [c]onstitutional [d]ue [p]rocess violations to
occur in making determinations in [his] rating decisions”
by, inter alia, suppressing and fabricating evidence.
Id.
at 4–5. We disagree.
Mr. Corson fails to challenge any particular aspect of
the Veterans Court’s decision based on a rule of law or the
validity or interpretation of any statute or regulation. See
generally Appellant’s Br. Nor does Mr. Corson raise any
legitimate constitutional challenge. See generally
id.
Rather, the Veterans Court dismissed Mr. Corson’s com-
plaint for falling outside of its jurisdiction. 4 Corson II,
4 The Veterans Court’s rules provide two means for
initiating its review: (1) a timely notice of appeal from a
Board decision, U.S. Vet. App. R. 3–4; and (2) a petition
for a writ of mandamus, U.S. Vet. App. R. 21. Both of
these rules derive from 38 U.S.C. § 7252(a), providing
jurisdiction to hear appeals from the Board and under the
All Writs Act, 28 U.S.C. § 1651(a). Similarly, pursuant to
38 U.S.C. § 7266, an appeal of a final Board decision must
be brought with the Veterans Court “within 120 days
after the date on which notice of the decision is mailed.”
Whether an appeal is timely filed is a factual determina-
tion that we may not review. See Albun v. Brown,
9 F.3d
1528, 1530 (Fed. Cir. 1993) (holding that we lacked juris-
diction over a claim that a notice of appeal was timely
filed because it involved only factual matters). Here, the
Veterans Court examined Mr. Corson’s “constitutional
6 CORSON v. WILKIE
2018 WL 1721873, at *2–4. Because the Veterans Court
ultimately dismissed the Complaint based on the applica-
tion of law to fact, i.e., the Complaint’s failure to comply
with the Veterans Court’s rules, and Mr. Corson does not
appear to raise a legal challenge to the Veterans Court’s
rules or statutes, we lack jurisdiction. See Cromer v.
Nicholson,
455 F.3d 1346, 1349 (Fed. Cir. 2006) (providing
that when the Veterans Court resolves an appeal inde-
pendently of a potential legal issue, we lack jurisdiction).
In dismissing his Complaint, the Veterans Court ex-
plained that “this disposition should not be read as put-
ting form over substance” because Mr. Corson “has
repeated the same allegations many times in previous
cases, but they have not grown any clearer or more relia-
ble with repetition.” Corson II,
2018 WL 1721873, at *4;
see Corson I, 662 F. App’x at 957 (concluding that allega-
tions by Mr. Corson identical to those here were “wholly
unsupported”). To the extent that Mr. Corson broadens
his constitutional arguments to encompass the actions of
the Veterans Court, they lack merit. Though Mr. Corson
presented his Complaint as a “constitutional complaint”
and refers to eighteen past actions by the VA that alleged-
ly violated his constitutional rights, Appellant’s Br. 3–4
(alleging that the Veterans Court allowed the Board to
engage in the “fabrication of and the insertion of false
evidence” and “the insertion of false statements as evi-
dence into” its rating decision), simply characterizing a
claim as “constitutional” does not render it non-frivolous
or cognizable, see Helfer v. West,
174 F.3d 1332, 1355
complaint” and determined that it was neither a timely
notice of appeal nor a proper petition. Corson II,
2018 WL
1721873, at *2. Absent a constitutional issue, we may not
review challenges to factual determinations or challenges
to the application of a law or regulation to fact. 38 U.S.C.
§ 7292(c); § 7292(d)(2).
CORSON v. WILKIE 7
(Fed. Cir. 1999) (“To the extent that [a veteran] has
simply put a ‘due process’ label on his contention that he
should have prevailed on his . . . claim, his claim is consti-
tutional in name only.”). Therefore, Mr. Corson’s unsup-
ported allegations are insufficient to raise a non-frivolous
constitutional issue.
CONCLUSION
We have considered Mr. Corson’s remaining argu-
ments and find them unpersuasive. The Decision of the
United States Court of Appeals for Veterans Claims is
DISMISSED
