Harris v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN A. HARRIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1747
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-0649, Judge Robert N. Davis.
______________________
Decided: November 4, 2016
______________________
NORMAN A. HARRIS, Greenville, IN, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
SCOTT D. AUSTIN; BRIAN D. GRIFFIN, BRANDON A. JONAS,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
2 HARRIS v. MCDONALD
Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
This is the second appeal by this pro se veteran appel-
lant, who has doggedly and effectively sought, inter alia,
an earlier effective date for certain service-connected
conditions. In the first appeal, the Board had held
against the veteran on this issue, and the Veterans Court
had upheld the Board decision in that regard. We vacated
and remanded because the Veterans Court failed to apply
the proper legal standard as expressed in a series of
cases—namely, Moody v. Principi, 360 F.3d 1306 (Fed.
Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir.
2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.
2001). See Harris v. Shinseki, 704 F.3d 946, 947–49 (Fed.
Cir. 2013). We explained that pro se filings must be read
liberally and that the Department of Veterans Affairs had
a duty to generously construe the evidence and resolve
any ambiguities in the veteran’s favor. Id. at 948–49.
On remand the Board again held against the veteran.
On appeal to the Veterans Court, this time the court
reversed the Board’s decision with respect to an issue not
now before us, 1 set aside the remainder of the Board’s
decision, and remanded.
The veteran again appeals here. The Government ar-
gues that because the Veterans Court remanded the
matter, we do not have jurisdiction over the appeal as
there is no final decision to be reviewed. The statute
governing our jurisdiction, 38 U.S.C. § 7292, does not
impose an explicit finality requirement. However, on
prudential grounds, this court generally declines to re-
1 The Veterans Court reversed the Board’s deter-
mination regarding the appellate status of claims for
diabetes mellitus and diabetic neuropathy.
HARRIS v. MCDONALD 3
view non-final Veterans Court decisions in which issues
remain to be decided. See Hudgens v. McDonald, 823
F.3d 630, 635 (Fed. Cir. 2016).
There is an exception to the finality rule as applied by
this court, when the Veterans Court in its opinion pur-
ports to decide a legal issue in the case in a manner that
in effect is final. See, e.g., Williams v. Principi, 275 F.3d
1361, 1364 (Fed. Cir. 2002). It is true that the Veterans
Court in this case, after concluding a remand was in
order, went on to discuss certain legal issues in the case
by way of guidance to the Board when it next considers
the case. It is understandable that the veteran was
confused about the legal status of his case, and asked us
to hear it on appeal. Nevertheless, as a result of the
Veterans Court remand his search for his requested relief
remains undecided; the additional discussion by that
court of certain legal issues does not represent any final
determination of the law applicable to his case, and all
issues affecting the veteran’s rights in this matter remain
to be finally determined.
For these reasons, we lack jurisdiction over the appeal
at this juncture, and dismiss Mr. Harris’s current appeal.
DISMISSED
No costs.