Howell v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: June 6, 2024
• Docket: 24-1153
• Status: Unpublished

Opinion

Case: 24-1153 Document: 27 Page: 1 Filed: 06/06/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BURL ANDERSON HOWELL, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2024-1153 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 23-1119, Judge Joseph L. Falvey, Jr. ______________________

Decided: June 6, 2024 ______________________

BURL ANDERSON HOWELL, La Grange, NC, pro se.

LAUREL DON HAVENS, III, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY. ______________________ Case: 24-1153 Document: 27 Page: 2 Filed: 06/06/2024

Before MOORE, Chief Judge, TARANTO, Circuit Judge, and CECCHI, District Judge. 1 PER CURIAM. Burl Anderson Howell served honorably in the United States Air Force from November 1970 to July 1971. In late 2013, acting on Mr. Howell’s 2012 application, the Depart- ment of Veterans Affairs (VA) awarded him benefits for a service-connected disability (based on a knee condition) un- der 38 U.S.C. ch. 11 and a pension for a non-service-con- nected disability (based on schizophrenia) under 38 U.S.C. ch. 15. Mr. Howell then pursued additional relief through multiple appeals and remands. On September 22, 2022, the Board of Veterans’ Appeals denied his request for a total disability rating based on in- dividual unemployability. The Board advised Mr. Howell that he had 120 days in which to file a notice of appeal to the Court of Appeals for Veterans Claims (Veterans Court). See 38 U.S.C. § 7266(a) (deadline for appeal). Mr. Howell filed an appeal, but not until February 26, 2023, which was 37 days after the deadline. In a decision by a single judge, the Veterans Court dis- missed Mr. Howell’s appeal as untimely. Howell v. McDonough, No. 23-1119, 2023 WL 4571789, at *1, *3 (Vet. App. July 18, 2023). The court gave Mr. Howell several opportunities to demonstrate facts that would justify equi- tably tolling the filing deadline. Id. at *1–2. After consid- ering Mr. Howell’s responses, the court determined that he had not met the standards for equitable tolling because he had not demonstrated that he was abandoned by his attor- ney, that he had exercised due diligence in communicating with his attorney during the period he sought to be tolled,

1 Honorable Claire C. Cecchi, District Judge, United States District Court for the District of New Jersey, sitting by designation. Case: 24-1153 Document: 27 Page: 3 Filed: 06/06/2024

HOWELL v. MCDONOUGH 3

or that a knee surgery he underwent during that time had rendered him incapable of handling his affairs. Id. at *2– 3. After the single judge denied Mr. Howell’s motion for reconsideration, Supplemental Appendix (SAppx)6–7, the Veterans Court granted Mr. Howell’s subsequent motion for a panel decision and adopted the single-judge order as the decision of the panel, SAppx4–5. Mr. Howell appeals the Veterans Court’s dismissal. Congress has generally confined our authority to reviewing decisions by the Veterans Court on “relevant questions of law” and declared that we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case,” un- less that challenge “presents a constitutional issue.” 38 U.S.C. § 7292(d); see also § 7292(a). We must dismiss Mr. Howell’s appeal because it raises no issue within our lim- ited jurisdiction. Mr. Howell asserts that the Veterans Court’s decision “involve[d] the validity or interpretation of a statute or reg- ulation.” Petitioner Informal Br. at 1. 2 He does not, how- ever, identify a statute or regulation as to which the Veterans Court rendered an interpretation or validity de- cision that he is challenging in this appeal. See Petitioner Informal Br. at 5. Nor does the decision of the Veterans Court itself appear to interpret or consider the validity of any statute or regulation. See Howell, 2023 WL 4571789, at *1–3. It merely considers whether Mr. Howell demon- strated the extraordinary circumstances required for equi- tably tolling under longstanding legal standards, themselves not challenged as legally incorrect. Id. at *2 (relying on standards of, e.g., Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004); Arbas v. Nicholson, 403 F.3d

2 All page citations to Mr. Howell’s filings are to the page numbers inserted by this court’s Electronic Case Fil- ing (ECF) system. Case: 24-1153 Document: 27 Page: 4 Filed: 06/06/2024

1379, 1381 (Fed. Cir. 2005); Dixon v. Shinseki, 741 F.3d 1367, 1376 (Fed. Cir. 2014); Sneed v. McDonald, 819 F.3d 1347, 1351 (Fed. Cir. 2016)). The application of those standards to the particular facts here is beyond our juris- diction. Dixon, 741 F.3d at 1377–78. Mr. Howell also argues that the Veterans Court vio- lated his right to due process under the Fifth Amendment of the U.S. Constitution by failing to give sufficient consid- eration to VA records of a knee surgery he underwent dur- ing the appeals period, a surgery that he asserts interfered with his ability to file a notice of appeal. Specifically, he argues that the Veterans Court was required to consider VA records of his surgery under Lang v. Wilkie. Peti- tioner’s Br. at 6 (citing 971 F.3d 1348 (Fed. Cir. 2020)). In Lang, we remanded a veteran’s disability claim for consid- eration by the Board of “new and material” evidence, which we held it was required to consider under 38 C.F.R. § 3.156(b). 971 F.3d at 1351, 1355. Our decision concerned a regulatory requirement, which is not at issue here, gov- erning certain information the Board had to consider on the merits; it was not a constitutional ruling concerned with records the Veterans Court has to consider in deciding on equitable tolling. In any event, the Veterans Court did consider the evidence Mr. Howell submitted to it about his knee surgery, and it simply determined that he had not shown that the knee surgery justified his missing the filing deadline. Howell, 2023 WL 4571789, at *1, *3. Mr. How- ell’s Lang-based argument does not present a substantial issue of legal error under Lang itself or of constitutional error. Finally, Mr. Howell argues that he was denied due pro- cess because the Veterans Court did not sufficiently take account of his diagnosis of schizophrenia in evaluating whether he exercised due diligence in contacting his attor- ney during the period for which he sought tolling. But whether viewed as a constitutional or tolling matter, this argument based on insufficient consideration of Case: 24-1153 Document: 27 Page: 5 Filed: 06/06/2024

HOWELL v. MCDONOUGH 5

schizophrenia in relation to due diligence does not state an error within our authority to address. He did not make an argument explaining the effect of his schizophrenia on his diligence in the Veterans Court, so that court did not decide the issue, expressly or implicitly, that he now raises. Our authority is limited to review of grounds that, expressly or implicitly, were “relied on by the [Veterans] Court in mak- ing the decision” appealed. 38 U.S.C. § 7292(a); see, e.g., Scott v. McDonald, 789 F.3d 1375, 1379–80 (Fed. Cir. 2015). The government asserts, and the Veterans Court’s opinion reflects, that Mr. Howell did not make a schizo- phrenia-based argument for tolling to the Veterans Court. Government’s Informal Br. at 13 n.3. Mr. Howell has not said otherwise in this court, observing only that (as is un- disputed) the Veterans Court well knew that he had schiz- ophrenia. Petitioner’s Reply Br. at 5–7. But Mr. Howell did not contend to the Veterans Court (and has not shown here) that the mere presence of schizophrenia, for everyone with the condition and the disability rating Mr. Howell has based on it, undermines the ability to exercise due dili- gence in meeting a deadline, including by adequately com- municating with counsel. And it is uncontested that he likewise did not make the necessary particularized argu- ment, or a showing to support such an argument, of the diligence-preventing effects of schizophrenia on himself— an argument that would have had to contend with the evi- dence of his activities in the period at issue indicating an ability to see to his affairs. See Howell, 2023 WL 4571789, at *3. In these circumstances, the Veterans Court decision on appeal did not rest on a ruling on the issue Mr. Howell now raises about the schizophrenia-diligence relationship, an issue he did not raise in that court and with respect to which the record on its face, even under a liberal construc- tion, did not require the Veterans Court to make a deter- mination sua sponte. Case: 24-1153 Document: 27 Page: 6 Filed: 06/06/2024

Because Mr. Howell’s challenges to the Veterans Court’s decision fall outside our limited jurisdiction, we must dismiss Mr. Howell’s appeal. The parties shall bear their own costs. DISMISSED