Case: 22-1738 Document: 19 Page: 1 Filed: 09/07/2022
`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-0219, Judge Coral Wong Pi-
`Decided: September 7, 2022
`SETH HOOPER, Hoboken, NJ, pro se.
` JOSHUA MOORE, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for respondent-appellee. Also represented by
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.


`Case: 22-1738 Document: 19 Page: 2 Filed: 09/07/2022
`Before PROST, TARANTO, and STOLL, Circuit Judges.
`Seth A. Hooper appeals an order of the Court of Ap-
`peals for Veterans Claims (“Veterans Court”) denying his
`petition for a writ of mandamus. Mr. Hooper’s mandamus
`petition sought to expedite matters before the Board of Vet-
`erans’ Appeals (“Board”)—he requested that the Veterans
`Court compel the Secretary of Veterans Affairs to issue
`docket numbers for and advance his Board appeals. This
`appeal presents challenges only to the Veterans Court’s
`factual determinations and its application of a settled legal
`standard to the circumstances of Mr. Hooper’s petition. Be-
`cause the appeal does not raise legal issues within our lim-
`ited jurisdiction, we dismiss.
`Mr. Hooper is a veteran who served several tours on
`active duty. In January 2020, after a series of challenges
`to his education benefit level, the Board determined his
`benefit level at 100 percent. S.A. 65.1 The Veterans Affairs
`Regional Office (“RO”) then calculated a dollar amount of
`corresponding retroactive entitlements.
` S.A. 41–45.
`Mr. Hooper challenged that determination as an underpay-
`ment of $3,138.58 and he cited a discrepancy between cal-
`culations in an earlier RO letter as evidence of error.
`S.A. 49–51. The Board remanded and suggested that the
`RO determine which calculation was correct and explain
`why. S.A. 51. In October 2020, the RO provided additional
`explanation for its calculation but did not increase the
`award amount. S.A. 41. When Mr. Hooper appealed the
`October 2020 RO decision, the Board remanded for
`1 S.A. refers to the appendix submitted with the gov-
`ernment’s informal response brief.


`Case: 22-1738 Document: 19 Page: 3 Filed: 09/07/2022
`recalculation again. S.A. 30–33. In May 2021, on remand,
`the RO awarded Mr. Hooper an additional $501.20. S.A.
`24. In July 2021, Mr. Hooper simultaneously filed a notice
`of disagreement (“NOD”) with the May 2021 RO decision
`and a motion for advancement on the docket (“MFA”). Ap-
`pellant’s Informal Br. Att. 1.2
`In January 2022, Mr. Hooper filed the mandamus peti-
`tion at issue here. S.A. 7–12. He asked the Veterans Court
`to compel the Secretary to issue a docket number for the
`July 2021 NOD and rule on the simultaneously filed MFA.
`The petition also sought to compel action on a separate dis-
`ability appeal—extended discussion of which is unneces-
`sary here—that was remanded from the Veterans Court to
`the Board in December 2021. As with the July 2021 NOD
`and MFA, Mr. Hooper sought a docket number for the re-
`manded case and for the Board to act on it. S.A. 12.
`The Veterans Court denied Mr. Hooper’s petition.
`Hooper v. McDonough, No. 22-0219, 2022 WL 278226, at *2
`(Vet. App. Jan. 31, 2022) (“CAVC Op.”). With respect to the
`remanded case, the Veterans Court concluded that since
`the mandate had yet to issue and the case had not been
`returned to the Board, the Board had not delayed. Id.
`at *1. The court declined to grant relief based on the pos-
`sibility of future delay. Id. As for the July 2021 NOD and
`MFA, the court determined that this claim was also based
`on an assertion of unreasonable delay and was subject to
`an analysis of the factors outlined in Telecommunications
`Research & Action Center v. FCC, 750 F.2d 70, 79 (D.C. Cir.
`1984) (“TRAC”), which we adopted in Martin v. O’Rourke,
`891 F.3d 1338, 1348 (Fed. Cir. 2018). CAVC Op., 2022 WL
`278226, at *1. Based on its analysis of the TRAC factors,
`the Veterans Court concluded that the circumstances did
`2 We cite Mr. Hooper’s exhibits by the attachment
`numbers given because they do not include page numbers.


`Case: 22-1738 Document: 19 Page: 4 Filed: 09/07/2022
`not warrant a writ of mandamus based on unreasonable
`delay. Mr. Hooper timely appealed.
`Our review of Veterans Court decisions is limited. In
`the absence of a constitutional issue, we lack jurisdiction to
`“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.” 38 U.S.C. § 7292(d)(2). Our review does,
`however, extend to “relevant questions of law.” Id.
`§ 7292(d)(1). And, when “presented and necessary to a de-
`cision,” we have jurisdiction to “review and decide any chal-
`lenge to the validity of any statute or regulation or any
`interpretation thereof.” Id. § 7292(c).
`Likewise, the scope of our mandamus review is limited.
`Our jurisdiction extends to those determinations on “man-
`damus petitions that raise legal issues otherwise within
`our jurisdiction.” Beasley v. Shinseki, 709 F.3d 1154, 1157
`(Fed. Cir. 2013). For example, we have reviewed whether
`the Veterans Court applied the correct legal standard when
`ruling on a mandamus petition, Mote v. Wilkie, 976 F.3d
`1337, 1340 (Fed. Cir. 2020), and interpreted statutes when
`a petitioner’s legal right to relief depended on that inter-
`pretation, Beasley, 709 F.3d at 1158–59; Wolfe v.
`McDonough, 28 F.4th 1348, 1358 (Fed. Cir. 2022). But “we
`do not interfere with the [Veterans Court’s] role as the final
`appellate arbiter of the facts underlying a veteran’s claim.”
`Beasley, 709 F.3d at 1158.
`Mr. Hooper’s challenge here does not raise any legal is-
`sues within our jurisdiction. He does not contest the legal
`standard applicable to his unreasonable-delay petition.
`Mr. Hooper’s petition urged the Veterans Court to apply
`the TRAC factors. S.A. 9–10. The Veterans Court did so.
`Here, Mr. Hooper challenges only the determination that
`they did not weigh in his favor. For example, he contends
`that the Veterans Court erred in concluding, during its
`analysis of the fourth TRAC factor, that granting his


`Case: 22-1738 Document: 19 Page: 5 Filed: 09/07/2022
`petition would shift resources away from adjudicating
`other veterans’ claims. Instead of presenting legal ques-
`tions, Mr. Hooper’s arguments merely raise issues about
`factual findings and the application of a settled (and un-
`challenged) legal standard to the facts of this case.
`Further, the Veterans Court’s decision did not depend
`on the validity or interpretation of any regulation or stat-
`ute. Mr. Hooper argues that the Veterans Court decision
`involved an interpretation of 38 C.F.R. § 20.800(c)(3).3 Ap-
`pellant’s Informal Br. 1–2. But the denial of mandamus
`did not depend on § 20.800(c)(3) or otherwise rest on an in-
`terpretation of it. Rather, the Veterans Court relied on the
`TRAC factors to determine whether the delay Mr. Hooper
`experienced was unreasonable and warranted manda-
`mus—without any discussion or implicit reliance on
`§ 20.800(c)(3). And an interpretation of § 20.800(c)(3) does
`not bear upon the issues presented to this court either.
`Thus, Mr. Hooper’s arguments about § 20.800(c)(3) do not
`raise any issues within our jurisdiction.
`Mr. Hooper contends that his procedural due process
`rights are implicated here. Appellant’s Informal Br. 2. He
`3 We assume that Mr. Hooper made this argument
`with respect to CAVC No. 22-0219, though it is not clear if
`he intended to do so. His opening brief cited CAVC No. 20-
`7967 as the case supplying the order giving rise to this ap-
`peal. Appellant’s Informal Br. 1. The order in that case
`did discuss the meaning of 38 C.F.R. § 20.800(c)(3).
`S.A. 36. But the government’s response noted that the No-
`tice of Docketing in this court listed CAVC No. 22-0219 as
`the originating case and that an appeal in CAVC No. 20-
`7967 would have been untimely. Appellee’s Informal Br. 1
`n.1. Mr. Hooper’s reply acknowledged that CAVC No. 20-
`7967 is not at issue here and attached the order from CAVC
`No. 22-0219 as the “correct order and judgment on appeal.”
`Appellant’s Informal Reply Br. 1.


`Case: 22-1738 Document: 19 Page: 6 Filed: 09/07/2022
`argues that his procedural due process rights were violated
`when (1) the Veterans Court “ignored the timeframe spec-
`ified by [38 C.F.R. § 20.800(c)(3)]” in denying his petition
`and (2) the docket numbers were not issued in a “timely”
`manner, preventing him from tracking and ensuring the
`timely adjudication of motions filed on the docket. Appel-
`lant’s Informal Br. 2. But Mr. Hooper did not present ei-
`ther of these arguments to the Veterans Court. And
`because Mr. Hooper’s arguments on this point “appear[] to
`be aimed at the merits of [his] claim” without “rais[ing] a
`separate constitutional issue” they do not confer jurisdic-
`tion. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir.
`2007). Mere characterization of an issue as a constitutional
`one is insufficient. Id. Although framed in terms of due
`these arguments are not separate
`Mr. Hooper’s unsuccessful underlying claim that the
`Board’s delay in assigning docket numbers and ruling on
`his MFA was unreasonable. Cf. Mote, 976 F.3d at 1346 (“In
`Martin, we addressed appellants’ separate due process
`claims and observed that ‘a claim that a plaintiff has been
`denied due process because of delayed agency action is es-
`sentially no different than an unreasonable delay claim.’”
`(quoting Martin, 891 F.3d at 1348)).
`We have considered Mr. Hooper’s remaining argu-
`ments but find them unpersuasive. Because Mr. Hooper’s
`appeal raises no issues within our limited jurisdiction, we
`No costs.

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