Lawson v. McDonald , 618 F. App'x 670 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RORY A. LAWSON,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7059
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2905, Judge Robert N. Davis.
______________________
Decided: July 8, 2015
______________________
LAURA A. LYDIGSEN, Brinks Gilson & Lione, Chicago,
IL, argued for claimant-appellant. Also represented by
JANET PIOLI, YUN WEI, DAVID HANNA.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN
F. HOCKEY, JR.; LARA EILHARDT, DAVID J. BARRANS, Office
2 LAWSON v. MCDONALD
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
______________________
Before O’MALLEY, WALLACH, and GILSTRAP *, Circuit
Judges.
O’MALLEY, Circuit Judge.
Rory A. Lawson (“Lawson”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) which set aside an August 10, 2011
decision of the Board of Veterans’ Appeals (“Board”) and
remanded for further proceedings. Lawson v. Shinseki,
No. 11-2905, 2013 WL 4830764 (Vet. App. Sept. 11, 2013).
Because the Veterans Court decision is not sufficiently
final for purposes of review, we dismiss this appeal for
lack of jurisdiction.
BACKGROUND
The procedural history of this case is long and com-
plex, and we recite only those facts relevant at this stage.
Lawson served on active duty in the United States Army
from February 1975 to February 1978. Many years after
Lawson first filed a claim for service connection for psy-
chiatric disorder, a Regional Office (“RO”) of the Depart-
ment of Veterans Affairs (“VA”) finally granted his claim
in June 2007. Specifically, the RO granted Lawson’s
claim for service-connected delusional disorder, persecu-
tory type, and assigned a 100 percent disability rating
effective June 21, 2004.
In August 2007, Lawson submitted a statement to the
VA that he was seeking “(CUE) clear error on the initial
* The Honorable Rodney Gilstrap, District Judge
for the U.S. District Court for the Eastern District of
Texas, sitting by designation.
LAWSON v. MCDONALD 3
claim date” and “asking the rating decision be awarded
from May 24, 1985.” Joint Appendix (“J.A.”) 274. In a
September 2007 rating decision, the RO denied entitle-
ment to an earlier effective date prior to June 21, 2004.
The RO issued a Statement of the Case on February 21,
2008, continuing its denial of an earlier effective date. In
relevant part, the RO explained that Lawson failed to file
a Notice of Disagreement with a February 5, 2003 deci-
sion denying service connection, and thus that decision
became final. J.A. 248. Lawson timely appealed the RO’s
denial of his entitlement to an earlier effective date to the
Board.
In a decision dated August 10, 2011, the Board found
that Lawson did not qualify for an effective date earlier
than the date of his June 21, 2004 claim for disability
benefits. Lawson, 2014 WL 4830764, at *1. In reaching
this conclusion, the Board indicated that Lawson did not
appeal the RO’s February 2003 rating decision and that,
in the absence of a claim of clear and unmistakable error
(“CUE”), there is no basis for an earlier effective date.
J.A. 173. The Board further noted that, although Law-
son’s August 2007 statement referenced CUE, it did not
allege CUE in any specific prior Board or RO decision.
Lawson obtained counsel to represent him pro bono
and timely appealed the Board’s denial to the Veterans
Court. Before the Veterans Court, Lawson argued, among
other things, that: (1) the Board erred in its finding that
he had not raised a CUE claim by failing to read his pro
se pleadings sympathetically and liberally, and that based
on CUE, he was entitled to disability benefits dating back
to at least September 16, 1998; and (2) the Board erred in
finding the February 2003 denial final because the RO
failed to comply with the mandatory notice requirements
of 38 U.S.C. §§ 5104 and 7104 when it sent the RO’s
rating decision to the wrong address.
4 LAWSON v. MCDONALD
In the September 2013 decision at issue on appeal,
the Veterans Court vacated the Board’s decision and
remanded for further proceedings. The court noted that
Lawson’s notice argument was raised for the first time on
appeal. Lawson, 2013 WL 4830764, at *1. But because
Lawson would not “later be allowed to file a freestanding
claim for an earlier effective date,” the Veterans Court
exercised its discretion to consider the argument. Id.
(citing Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir.
2000)). Recognizing that resolution of the notice issue
“requires making determinations in the first instance that
are fact based, evidentiary, and potentially not based on
the record before the Board,” the Veterans Court exer-
cised its discretion to remand the matter for consideration
by the Board in the first instance. Id. (citing Kyhn v.
Shinseki, 716 F.3d 572 (Fed. Cir. 2013)). Given its deter-
mination that remand was necessary, the court declined
to address Lawson’s additional arguments “as to other
inadequacies in the Board’s statement of reasons or
bases.” Id. (citing Mahl v. Principi, 15 Vet. App. 37, 38
(2001)). The court did, however, invite Lawson to submit
additional argument and evidence to the Board on re-
mand. Id.
Lawson filed a motion for reconsideration, or in the
alternative, a motion for a panel decision. The Veterans
Court granted the motion for panel review, but denied
Lawson’s request for reconsideration. Lawson v.
Shinseki, No. 11-2905, 2013 WL 6177758, at *1 (Vet. App.
Nov. 26, 2013) (holding that “the single-judge memoran-
dum decision remains the decision of the Court”). The
court subsequently entered judgment on December 18,
2013.
Lawson timely appealed to this court, arguing, among
other things, that the Veterans Court erred in remanding
his notice error claim for fact finding without addressing
his separate CUE claim errors. According to Lawson, the
Veterans Court should have resolved the CUE claim
LAWSON v. MCDONALD 5
errors because the relief he seeks for those errors “(bene-
fits dating back to September 16, 1998) is greater than the
relief he seeks for the notice error (benefits dating back to
November 8, 2002).” Appellant Br. 41.
DISCUSSION
The threshold issue is whether we have jurisdiction
over Lawson’s appeal of the Veterans Court’s remand
order. The scope of our review of a Veterans Court deci-
sion is limited by statute. See 38 U.S.C. § 7292 (2012).
Although the statute conferring jurisdiction to review
decisions of the Veterans Court does not specifically
require a “final” decision, we generally decline to review
non-final decisions of the Veterans Court on prudential
grounds. Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir.
2006) (citing Williams v. Principi, 275 F.3d 1361, 1363
(Fed. Cir. 2002)). This finality rule serves several purpos-
es: it “promot[es] efficient judicial administration,” “em-
phasize[s] the deference that appellate courts owe to the
trial judge,” and “reduces harassment of opponents and
the clogging of the courts through successive appeals.”
Williams, 275 F.3d at 1364 (citing Firestone Tire & Rub-
ber Co. v. Risjord, 449 U.S. 368, 374 (1981)).
Thus, we typically do not review the Veterans Court’s
remand orders because they are not final decisions.
Joyce, 443 F.3d at 849 (“We have repeatedly made clear
that a decision by the [Veterans Court] remanding to the
Board is non-final and not reviewable.”). We will only
depart from this rule of finality when three conditions are
met:
(1) there must have been a clear and final decision
of a legal issue that (a) is separate from the re-
mand proceedings, (b) will directly govern the re-
mand proceedings or, (c) if reversed by this court,
would render the remand proceedings unneces-
sary; (2) the resolution of the legal issues must
adversely affect the party seeking review; and,
6 LAWSON v. MCDONALD
(3) there must be a substantial risk that the deci-
sion would not survive a remand, i.e., that the
remand proceeding may moot the issue.
Williams, 275 F.3d at 1364 (citations omitted). The
exception to the finality rule is narrow, and is met only in
rare circumstances. Conway v. Principi, 353 F.3d 1369,
1374 (Fed. Cir. 2004) (finding that it was “one of the rare
cases” where the Williams criteria were met).
The remand order in this case does not satisfy the
narrow exception articulated in Williams. A close reading
of the remand decision reveals that the Veterans Court
did not make a “clear and final decision” on a legal issue
as required to meet the first Williams condition. Instead,
the Veterans Court exercised its discretion to remand
Lawson’s case “for consideration by the Board in the first
instance.” Lawson, 2014 WL 4830764, at *1. The Veter-
ans Court explained that, “in pursuing his claim on
remand, Mr. Lawson will be free to submit additional
argument and evidence as to the remanded matter, and
the Board must consider any such evidence or argument
submitted.” Id. (citing Kay v. Principi, 16 Vet. App. 529,
534 (2002)).
Given the broad language of the remand order, we
conclude that, on remand, Lawson will have an opportuni-
ty to submit additional argument and evidence with
respect to the alleged CUE claim errors. Indeed, at oral
argument, counsel for the government conceded that the
alleged CUE claim errors are encompassed within the
Veterans Court’s remand. Specifically, counsel stated
that:
As the court noted, the remand is broader than
Mr. Lawson is contending. The Veterans Court
specifically cited Kay v. Principi for the point that
he would be free to submit additional arguments
and evidence as to the remanded matter and that
would also include CUE claims. Here, the CUE
LAWSON v. MCDONALD 7
issue was that the Board found that he had not
yet raised a valid CUE claim. He is able to better
develop that when he returns to the Board.
Oral Argument at 21:33-22:00, available at http://www.
cafc.uscourts.gov/oral-argument-recordings/14-7059/all.
And, when asked whether the government will concede
before the Board that the remand “includes a full, open
reevaluation of whether [Lawson] has properly raised a
CUE claim,” the government’s counsel answered affirma-
tively. Id. at 22:00-22:24. 1 Given these concessions, there
is no dispute that the remand order includes both the
alleged notice error and the alleged CUE claim errors.
On remand, the Board must consider Lawson’s al-
leged CUE claim errors before rendering a new decision.
In doing so, the Board should be mindful that
it “has a special obligation to read pro se filings liberally.”
Robinson v. Shinseki, 557 F.3d 1355, 1358-59 (Fed. Cir.
2009). This obligation “applies both to proceedings ap-
pealing a decision of the RO to the Board (‘direct appeals’)
and to proceedings alleging a clear and unmistakable
error (‘CUE’) in a final decision of the Board.” Id. at 1359.
Accordingly, on remand, the Board must sympathetically
and liberally construe Lawson’s pro se filings to deter-
mine whether he asserted CUE with sufficient particular-
ity. See Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed.
Cir. 2005) (“[T]he VA’s duty to sympathetically read a
veteran’s pro se CUE motion to discern all potential
claims is antecedent to a determination of whether a CUE
claim has been pled with specificity.”).
1 Counsel for the government further recognized
that Lawson will not have to file a new CUE claim, stat-
ing that “he’s entitled to review before the RO, but if he
wanted to waive that and develop his CUE claim before
the Board, he would be entitled to do that.” Oral Argu-
ment at 23:56-24:19.
8 LAWSON v. MCDONALD
We can certainly understand Lawson’s frustration
with the amount of time it has taken for him to obtain his
service-connected benefits. Although Lawson argues that
remand proceedings are unnecessary and will subject him
to additional back and forth, that possibility “does not
render the interim decision of the Court of Appeals for
Veterans Claims sufficiently final for purposes of our
review.” Williams, 275 F.3d at 1365.
CONCLUSION
Because the Veterans Court’s decision was not final,
and because no exception to the finality requirement
applies, we lack jurisdiction. We therefore dismiss this
appeal.
DISMISSED