United States Court of Appeals 

for the Federal Circuit ______________________

FRANK MAY, III,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2022-1803

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-874, Chief Judge Margaret C. 

Bartley.

______________________

Decided: March 6, 2023

______________________

FRANK MAY, III, Muskegon Heights, MI, pro se.

 STEPHEN J. SMITH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

 ______________________

Case: 22-1803 Document: 28 Page: 1 Filed: 03/06/2023
2 MAY v. MCDONOUGH

Before NEWMAN, LOURIE, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST.

Dissenting opinion filed by Circuit Judge NEWMAN.

PROST, Circuit Judge.

Frank May, III, appeals the decision of the U.S. Court 

of Appeals for Veterans Claims (“Veterans Court”) dismissing his appeal for lack of jurisdiction. Because the Board 

of Veterans’ Appeals (“Board”) never issued a decision from 

which Mr. May could appeal, we affirm.

BACKGROUND

Mr. May is a helpless child of a deceased veteran. 

SAppx2.1 The Department of Veterans Affairs (“VA”) 

granted Mr. May entitlement to dependency and indemnity 

compensation (“DIC”) benefits on October 18, 2018, with an 

effective date of May 18, 2016. SAppx7. In the same decision, the VA concluded that Mr. May’s entitlement to DIC 

benefits ended on February 1, 2017, when he married 

Juanita Johnson. Mr. May now seeks a reinstatement of 

DIC benefits based on his divorce from Ms. Johnson on September 20, 2018.2 Appellant’s Informal Br. 4; SAppx2.

Mr. May filed a notice of appeal to the Veterans Court 

on February 4, 2021, listing the date of the Board’s decision

as February 19, 2019. SAppx4. But the Board had not 

1 “SAppx” refers to the government’s supplemental 

appendix.

2 See 38 U.S.C. § 103(e) (“The marriage of a child of 

a veteran shall not bar recognition of such child as the child 

of the veteran for benefit purposes if the marriage is void, 

or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines 

that the annulment was secured through fraud by either 

party or collusion.”).

Case: 22-1803 Document: 28 Page: 2 Filed: 03/06/2023
MAY v. MCDONOUGH 3

rendered a decision on February 19, 2019; rather, Mr. May 

had received correspondence that day from a VA regional 

office certifying an appeal to the Board. SAppx6. Accordingly, the Secretary moved to dismiss Mr. May’s appeal, arguing that the Veterans Court’s jurisdiction is limited to 

appeals from Board decisions. See SAppx2.

On May 19, 2021, the Veterans Court ordered Mr. May 

to show cause why his appeal should not be dismissed. Id. 

In a series of letters to the Veterans Court between May 27, 

2021, and June 11, 2021, Mr. May asked that his appeal 

not be dismissed and that, instead, his DIC benefits be reinstated because of his divorce. Id. Mr. May did not identify a Board decision from which he was appealing, nor did 

he argue that the Board had unreasonably delayed in rendering its decision.

On February 17, 2022, the Veterans Court dismissed 

Mr. May’s appeal for lack of jurisdiction. SAppx3. The 

court explained that its jurisdiction is limited to appeals 

from Board decisions and that, absent such a decision, it 

could not consider Mr. May’s appeal. SAppx2–3 (citing 

38 U.S.C. §§ 7252(a) and 7266(a)). Because Mr. May had 

not identified any Board decision, the court concluded that 

it must dismiss his appeal. SAppx3. Mr. May sought reconsideration, again urging reinstatement of his DIC benefits because of his divorce, and the Veterans Court denied 

reconsideration on April 26, 2022. SAppx1.

Mr. May’s appeal to this court followed.

DISCUSSION

In appeals from the Veterans Court, we “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). 

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.” Id. § 7292(d)(2).

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4 MAY v. MCDONOUGH

Mr. May asks that we “give consideration that [he] was 

granted by the [VA] ‘Permanent incapacity for self-support 

. . . established May 18, 2018.’” Appellant’s Informal Br. 4. 

He seeks reconsideration of the Veterans Court’s decision 

dismissing his appeal but articulates no basis for doing so.

A

The Veterans Court’s jurisdiction is limited by statute. 

It has “exclusive jurisdiction to review decisions of the 

Board of Veterans’ Appeals.” 38 U.S.C. § 7252(a) (emphasis added). And § 7266, which governs notices of appeal to 

the Veterans Court, assumes that the Board has rendered 

a decision. See 38 U.S.C. § 7266(a).

Everyone agrees that no Board decision exists here. 

Accordingly, the Veterans Court was right to dismiss 

Mr. May’s appeal because it lacks jurisdiction over it.

As best we can tell, this entire case arises because 

Mr. May made a mistake. Statements in Mr. May’s correspondence to the Veterans Court urging it to reconsider its 

dismissal imply that Mr. May misunderstood the distinction between the Board of Veterans’ Appeals and the Court 

of Appeals for Veterans Claims. If that is indeed what happened, it is an understandable error for a nonlawyer to 

make. We think it would be helpful to clarify to Mr. May 

that no court has said that his benefits cannot be reinstated; he may still make his arguments, he just needs to 

make them to the right people. His request for reinstatement of DIC benefits must be made to the Board of Veterans’ Appeals, not the Court of Appeals for Veterans Claims. 

Once the Board decides his case, if it decides against

Mr. May, then he can appeal to the Veterans Court.

B

The dissent would hold that the Veterans Court has jurisdiction on direct appeal to review the reasonableness of 

the VA’s administrative delay in issuing a Board decision

and would vacate and remand this case for the Veterans 

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MAY v. MCDONOUGH 5

Court to do that. Such a holding would represent a marked 

departure from our jurisprudence and would not comport 

with the governing statutory provisions cited above that 

limit the Veterans Court’s jurisdiction to review of Board 

decisions.

The dissent relies on 38 U.S.C. § 7261(a)(2). But § 7261

defines the Veterans Court’s scope of review. See 38 U.S.C. 

§ 7261 (titled “Scope of Review”). Particularly when read 

in light of § 7252 (which is titled “Jurisdiction; finality of 

decisions”), the provision only applies when the Veterans 

Court otherwise has jurisdiction—it does not independently confer jurisdiction.3 See Mayer v. Brown, 

37 F.3d 618, 620 (Fed. Cir. 1994) (“Section 7261 merely sets 

out the scope of the review to be conducted by the [Veterans 

Court] in cases within its jurisdiction; it does not itself create jurisdiction in the [Veterans Court].”), overruled on 

other grounds by Bailey v. West, 160 F.3d 1360, 1368 

(Fed. Cir. 1998). This is not to say that Mr. May was without recourse to resolve any unreasonable delay. For example, he could have filed a petition for a writ of mandamus 

challenging any Board delay. See, e.g., Martin, 891 F.3d 

1338. The Veterans Court would have then been empowered, under the All Writs Act, 28 U.S.C. § 1651(a), to issue 

3 We have observed that § 7261(a)(2), which permits 

the Veterans Court to “compel action of the Secretary unlawfully withheld or unreasonably delayed,” is based on a 

similar scope-of-review provision in the Administrative 

Procedure Act. Martin v. O’Rourke, 891 F.3d 1338, 1343 

(Fed. Cir. 2018) (citing 5 U.S.C. § 706(1)). And, as the D.C. 

Circuit observed in Telecommunications Research & Action 

Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), the Administrative Procedure Act “unquestionably does not confer an 

independent grant of jurisdiction.” Id. at 77–78 (discussing 

5 U.S.C. § 706(1), and citing Califano v. Sanders, 430 U.S. 

99, 107 (1977)).

Case: 22-1803 Document: 28 Page: 5 Filed: 03/06/2023
6 MAY v. MCDONOUGH

a writ to “protect its future jurisdiction.” See Martin, 

891 F.3d at 1343 (emphasis added) (cleaned up). Instead, 

he filed a direct appeal rather than a petition for a writ of 

mandamus4 and never argued (or even hinted) that the two 

years that had elapsed since the RO certified his appeal 

constituted an unreasonable delay. Under these circumstances, it would be improper to examine administrative 

delay, particularly when, because Mr. May didn’t argue 

that the Board unreasonably delayed in issuing a decision,

the Secretary never had an opportunity to address it.

If a pro se appellant files a direct appeal without waiting for a final Board decision and argues that the Board has 

unreasonably delayed in issuing a decision, we cannot say 

that it would not be appropriate, in some circumstances,

for the Veterans Court to construe the appeal as a petition 

for a writ of mandamus and proceed accordingly. But we

are not presented with that issue because that is not what 

happened here: Mr. May’s appeal to both the Veterans 

Court and to this court addressed only the merits. We cannot, therefore, fault the Veterans Court for adhering to the 

statutory limits of its jurisdiction and dismissing Mr. May’s 

appeal.

CONCLUSION

We have considered Mr. May’s remaining arguments 

and find them unpersuasive. For the reasons set forth 

above, we affirm the Veterans Court’s dismissal of 

Mr. May’s appeal.

AFFIRMED

COSTS

No costs.

4 This is merely an observation. It is not a criticism, 

as the dissent characterizes it. See Dissent 6.

Case: 22-1803 Document: 28 Page: 6 Filed: 03/06/2023
United States Court of Appeals 

for the Federal Circuit ______________________

FRANK MAY, III,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2022-1803

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-874, Chief Judge Margaret C. 

Bartley.

______________________

NEWMAN, Circuit Judge, dissenting.

The question before us is whether the Court of Appeals 

for Veterans Claims (the “Veterans Court”) has jurisdiction 

to consider this appeal from the decision of a Department 

of Veterans Affairs (“VA”) regional office. Appellant Frank 

May, III, filed a timely appeal to the Board of Veterans’ 

Appeals (the “Board”), and after two years of inaction he

filed an appeal to the Veterans Court. That court held it 

does not have jurisdiction “[b]ecause the Board did not 

Case: 22-1803 Document: 28 Page: 7 Filed: 03/06/2023
2 MAY v. MCDONOUGH

issue a final decision,”and dismissed the appeal.1 However, 

38 U.S.C. § 7261(a)(2) authorizes the Veterans Court to 

“compel action of the Secretary unlawfully withheld or unreasonably delayed.” Such authority is jurisdictional, for

“a tribunal’s ‘power to hear a case’ [is] a matter that ‘can 

never be forfeited or waived.’” Union Pac. R.R. Co. v. Bhd.

of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). From my 

colleagues’ ruling that the Veterans Court lacks jurisdiction of this appeal, I respectfully dissent.

DISCUSSION

Frank May, III is the disabled child of a deceased veteran. The VA regional office found that May was disabled 

from birth, with “permanent incapacity for self-support,” 

and he received a rating decision granting dependency and 

indemnity compensation (DIC) effective May 18, 2016. 

DIC is not available to married children of veterans. 

See 38 U.S.C. § 101(4)(A). May was married on February 

14, 2017, and divorced on September 20, 2018. The VA terminated his DIC as of February 1, 2017. After the divorce

he requested reinstatement of the DIC. The Veterans Act 

contains provisions pertaining to marriage of a veteran’s 

child, including: 

38 U.S.C. § 103 Special provisions relating to

marriages— 

***

(e) The marriage of a child of a veteran shall not

bar recognition of such child as the child of the veteran for benefit purposes if the marriage is void, or 

1 May v. McDonough, No. 21-874, 2022 WL 484328 

(Vet. App. Mar. 11, 2022) (“Vet. Ct. Order”). 

Case: 22-1803 Document: 28 Page: 8 Filed: 03/06/2023
MAY v. MCDONOUGH 3

has been annulled by a court with basic authority

to render annulment decrees unless the Secretary

determines that the annulment was secured

through fraud by either party or collusion.

The regulations include: 

38 C.F.R. § 3.55 Reinstatement of benefits eligibility based upon terminated marital relationships— 

*** 

(b)(1) Marriage of a child shall not bar the furnishing of benefits to or on account of such child, if the

marriage:

(i) Was void, or

(ii) Has been annulled . . . . 

The regional office did not reinstate May’s DIC, and he appealed to the Board. Actions of a regional office are subject 

to review by the Board, in accordance with 38 U.S.C. 

§ 7104:

38 U.S.C. § 7104 Jurisdiction of the Board; decisions; notice—

(a) All questions in a matter which under section 

511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to

the Secretary. Final decisions on such appeals

shall be made by the Board. Decisions of the Board

shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and

regulation.

The record contains a letter to May, signed “Regional Office 

Director” and dated February 19, 2019, stating:

Case: 22-1803 Document: 28 Page: 9 Filed: 03/06/2023
4 MAY v. MCDONOUGH

We have certified your appeal to the Board of Veterans’ Appeals (Board) in Washington, D.C. 

SAppx6.2 

The Board did not act on May’s appeal, and on February 4, 2021, he filed an appeal to the Veterans Court. On 

the government’s motion, the Veterans Court dismissed 

May’s appeal, stating: 

Absent a final Board decision, the Court lacks jurisdiction to consider an appeal. . . . Because the

Board did not issue a final decision involving Mr.

May on February 19, 2019, the Court will dismiss

the instant appeal. If and when a final Board decision is issued, any matter determined in such a decision that is adverse to Mr. May may be appealed

to this Court.

Vet. Ct. Order, at 1.

This appeal followed. May states that he filed a timely 

appeal to the Board and has received no action. He states 

that he meets the requirements for reinstatement of his 

DIC and requests judicial relief. The government states 

that the Veterans Court correctly dismissed the appeal for 

lack of jurisdiction. 

Jurisdiction of the Veterans Court 

Jurisdiction is “a tribunal’s ‘power to hear a case,’ a 

matter that ‘can never be forfeited or waived.’” Union Pac.

R.R. Co., 558 U.S. at 81 (quoting Arbaugh, 546 U.S. at 514). 

The legislative plan for veterans’ compensation claims is 

that the Board shall review decisions of a VA regional office, before appeal is taken to the Veterans Court: 

2 SAppx refers to the Supplemental Appendix filed

by the government.

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MAY v. MCDONOUGH 5

38 U.S.C. § 7266 Notice of appeal—

(a) In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the

Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal

with the Court within 120 days after the date on 

which notice of the decision is issued pursuant to

section 7104(e) of this title.

The statute also authorizes the Veterans Court to “compel 

action of the Secretary” in certain circumstances:

38 U.S.C. § 7261 Scope of Review— 

(a) In any action brought under this chapter, the

Court of Appeals for Veterans Claims, to the extent 

necessary to its decision and when presented,

shall— 

(1) decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the 

meaning or applicability of the terms of an 

action of the Secretary;

(2) compel action of the Secretary unlawfully withheld or unreasonably delayed;

The grant of the power to “compel action of the Secretary”

in situations of unreasonable delay was added by the Veterans’ Benefits Amendments of 1989, Pub. L. No. 101-237, 

§ 602, 103 Stat. 2061, 2095, following a legislative hearing 

in which it was reported that the average time for decision 

by the Board was about fourteen months, and that approximately twenty percent of Board decisions took nearly oneand-a-half years. Hearing on Oversight of the Board of Veterans’ Appeals: Hearing Before the Senate Comm. on Veterans’ Affairs, 100th Cong. 9–10 (1988) (statement of 

Kenneth E. Eaton, Chairman of the Board).

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6 MAY v. MCDONOUGH

38 U.S.C. § 7261(a)(2) authorizes the Veterans Court to 

compel agency action when action is unreasonably delayed.

Such power is premised on the court’s jurisdiction lest the 

court’s authority “be defeated by an agency that fails to resolve disputes.” Telecomms. Rsch. & Action Ctr. v. FCC,

750 F.2d 70, 76 (D.C. Cir. 1984). 

The government cites decisions denying Veterans 

Court jurisdiction in the absence of a Board final decision, 

viz, Breeden v. Principi, 17 Vet. App. 475, 477 (2004) (“Our 

jurisdiction is limited to appeals from final decisions of the 

Board.”); Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 

2000) (The party seeking judicial relief must “present a request for a benefit to the Board, then receive a decision on 

that request.”). However, § 7261(a)(2) assigns authority to 

the Veterans Court to assure timely action by the VA.

The panel majority states that “this entire case arises 

because Mr. May made a mistake” and “misunderstood the 

distinction between the Board of Veterans’ Appeals and the 

Court of Appeals for Veterans Claims.” Maj. Op. at 4. That 

is contrary to the record. The government agrees that May 

filed a timely appeal to the Board of Veterans’ Appeals. 

Only after two years of Board inaction did he seek the attention of the Veterans Court. 

The majority also criticizes the form of May’s action in

the Veterans Court, stating that he “filed a direct appeal 

rather than a petition for a writ of mandamus.” Maj. Op. at 

6. It is accurate that May did not caption his appeal as a 

petition for writ of mandamus. Although “an appellate 

court may sometimes elect to treat an attempted appeal as 

if it were a petition for a writ of mandamus,” United States 

v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993), neither the 

Veterans Court nor this court made that election, which 

could have resolved May’s situation. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (when interpreting the jurisdictional scope of final decisions under 

Case: 22-1803 Document: 28 Page: 12 Filed: 03/06/2023
MAY v. MCDONOUGH 7

28 U.S.C. § 1291, courts should employ a “practical” rather 

than “technical” approach).

The mandamus process has been invoked, lest judicial 

review be thwarted if the reviewable agency fails to act. 

See Fed. Trade Comm’n v. Dean Foods Co., 384 U.S. 597, 

603 (1966). The panel majority acknowledges that the Veterans Court could have treated this appeal as a petition for 

a writ of mandamus. A focus of mandamus is to ensure 

justice is done and that government officers do their duties. 

It is especially important to avoid allowing formalism to 

defeat justice when litigants are unrepresented. 

The panel majority states that May never complained 

about delay. Maj. Op. at 5–6. That is incorrect, for both 

May and the Veterans Court refer to the regional office’s 

letter dated February 19, 2019, in his appeal to the Veterans Court filed in February 2021. 

May waited two years before appealing to the Veterans 

Court, seeking action on his request for DIC reinstatement.3 It is undisputed that the Veterans Court has jurisdiction over mandamus petitions related to delay in Board

actions. When the Veterans Court was established by the 

Veterans’ Judicial Review Act of 1988,4 the goal was for 

“each individual veteran to receive from the Government 

every benefit and service to which he or she may be entitled 

under law.” Hearing on Judicial Review Legislation, Before 

S. Comm. on Veterans’ Affairs, 100th Cong. 2 (1988) (statement of Sen. Alan Cranston). 

There is no jurisdictional bar to the Veterans Court’s

authority to remedy unreasonable delay, as authorized by

§ 7261(a)(2). The dismissal for lack of jurisdiction should 

be reversed, with remand to the Veterans Court for action. 

3 Now, four years have elapsed since his appeal to 

the Board. 4 Pub. L. 100-687, 102 Stat. 4105.

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8 MAY v. MCDONOUGH

My colleagues’ dismissal leaves Mr. May with no recourse

and no remedy. I respectfully dissent.

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