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NOTE: This disposition is nonprecedential.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.
