Case: 21-1705 Document: 13 Page: 1 Filed: 07/16/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA J. RACKLEY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1705
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5006, Judge William S. Green-
berg.
______________________
Decided: July 16, 2021
______________________
PAMELA J. RACKLEY, McMinnville, TN, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY,
JR.; BRIAN D. GRIFFIN, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Case: 21-1705 Document: 13 Page: 2 Filed: 07/16/2021
2 RACKLEY v. MCDONOUGH
______________________
Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
PER CURIAM.
This appeal involves a claim for veterans benefits. Ap-
pellant Pamela J. Rackley appeals the decision of the
United States Court of Appeals for Veterans Claims affirm-
ing the Board of Veterans’ Appeals denial of her claim for
surviving spouse benefits based on the death of her former
husband, Terry Miller. We lack jurisdiction to hear this ap-
peal and therefore we dismiss.
I
Mr. Miller served on active duty in the United States
Army. His final period of active service was from Decem-
ber 1977 to March 1979. Ms. Rackley and Mr. Miller were
married in November 1977, and they had a child in Sep-
tember 1978. Ms. Rackley and Mr. Miller divorced in
July 1981. Mr. Miller died on June 3, 2000. In March 2017,
Ms. Rackley submitted a claim for entitlement to VA bene-
fits based on Mr. Miller’s death. After the VA Regional Of-
fice denied her claim, she appealed to the Board, which
denied her claim in April 2019. Ms. Rackley appealed to the
Veterans Court, which issued its decision affirming the
Board’s denial in November 2020. Rackley v. Wilkie,
No. 19-5006,
2020 WL 6877162 (Vet. App. Nov. 24, 2020).
This appeal followed.
II
The scope of this court’s jurisdiction to review decisions
by the Veterans Court is narrow. We may review decisions
by the Veterans Court “on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter)” that the Veterans
Court relied on in making its decision. 38 U.S.C. § 7292(a).
But we lack jurisdiction to review “a challenge to a factual
determination” or the application of law to fact unless the
Case: 21-1705 Document: 13 Page: 3 Filed: 07/16/2021
RACKLEY v. MCDONOUGH 3
appeal presents a constitutional issue. 38 U.S.C.
§ 7292(d)(2); see also Cook v. Principi,
353 F.3d 937, 939
(Fed. Cir. 2003).
A
Ms. Rackley states in her informal opening brief and
reply brief that her appeal challenges the Veterans Court’s
interpretation of a statute, regulation, or constitutional
provision. Appellant’s Br. 1–2. However, the Veterans
Court’s decision does not consider the validity of or elabo-
rate on the meaning of any such provision. At most, the
Veterans Court applied existing law to the facts of
Ms. Rackley’s case.
A veteran’s surviving spouse may be eligible for death
benefits. 38 U.S.C. §§ 1310, 1541(a). The term “surviving
spouse” is defined by 38 U.S.C. § 101(3):
a person . . . who was the spouse of a veteran at the
time of the veteran’s death, and who lived with the
veteran continuously from the date of marriage to
the date of the veteran’s death (except where there
was a separation which was due to the misconduct
of, or procured by, the veteran without the fault of
the spouse) and who has not remarried or (in cases
not involving remarriage) has not since the death
of the veteran, and after September 19, 1962, lived
with another person and held himself or herself out
openly to the public to be the spouse of such other
person.
Ms. Rackley argues in her informal briefs that the Vet-
erans Court erred by failing to consider three facts: (1) that
her separation from Mr. Miller was due to his misconduct,
and no fault of her own; (2) that Ms. Rackley and Mr. Mil-
ler had a child while they were married; and (3) that
Mr. Miller did not satisfy his financial obligations to his
child while he was alive. Appellant’s Br. 1–2, 8–9;
Case: 21-1705 Document: 13 Page: 4 Filed: 07/16/2021
4 RACKLEY v. MCDONOUGH
Appellant’s Reply Br. 1–4. For the purposes of this appeal,
we assume these factual assertions to be true.
As to the first, this court has already considered and
rejected the argument that the spousal abuse exception to
the continuous cohabitation requirement of 38 U.S.C.
§ 101(3) also creates an exception to the requirement that
a surviving spouse be “the spouse of a veteran at the time
of the veteran’s death.” Haynes v. McDonald,
785 F.3d 614,
615–16 (Fed. Cir. 2015) (analyzing analogous regulation).
In Haynes, we made clear that the spousal abuse exception
pertains only to spouses who have separated, but not di-
vorced.
Id. As such, the Veterans Court applied our holding
in Haynes to the facts of Ms. Rackley’s appeal.
As to the second and third factual assertions—that
Mr. Miller and Ms. Rackley had a child and that Mr. Miller
failed to satisfy his obligations to that child—we can dis-
cern no statutory or regulatory basis by which either of
these facts (which we assume to be true) could create an
exception to the requirement that a “surviving spouse”
must be married to the veteran at the time of the veteran’s
death. Though we share the Veterans Court’s sympathy for
Ms. Rackley’s circumstances, we lack the jurisdiction to re-
view the decision because the Veterans Court merely ap-
plied existing law to the facts of Ms. Rackley’s case.
B
Finally, Ms. Rackley argues in her informal briefs that
the Veterans Court’s decision violated “her constitutional
liberty.” Appellant’s Br. 2. But her arguments regarding
this purported violation of constitutional rights reiterate
the factual assertions of misconduct by Mr. Miller and his
failure to meet his financial obligations to his child while
he lived.
Id. Although we have jurisdiction to consider con-
stitutional questions, simply characterizing an argument
“as constitutional in nature does not confer upon us juris-
diction that we otherwise lack.” Helfer v. West,
174 F.3d
1332, 1335 (Fed. Cir. 1999). Because the Veterans Court’s
Case: 21-1705 Document: 13 Page: 5 Filed: 07/16/2021
RACKLEY v. MCDONOUGH 5
decision did not involve any constitutional provision, we
are without jurisdiction to consider this argument.
III
Ms. Rackley’s appeal challenges only the Veterans
Court’s application of law to the facts of her case. Because
we lack jurisdiction to review the application of law to fact,
we dismiss.
AFFIRMED
COSTS
No costs.
