Background
David James, a veteran, sought an increased disability rating for his service-connected asthma and total disability based on individual unemployability. The Board of Veterans’ Appeals denied those requests on November 3, 2023.
James filed a notice of appeal with the U.S. Court of Appeals for Veterans Claims on December 19, 2024. A single Veterans Court judge dismissed the appeal as untimely after finding that James had not established entitlement to equitable tolling, and judgment was entered on June 6, 2025. The Veterans Court received James’s motion for a three-judge panel decision on June 16, and James filed a notice of appeal with the Federal Circuit on June 25 while that motion remained unresolved.
The Court’s Holding
In a nonprecedential per curiam disposition, the Federal Circuit dismissed James’s appeal for lack of jurisdiction. It held that the pending motion for a three-judge panel decision rendered the Veterans Court’s judgment nonfinal.
Although the government urged a remand so the Veterans Court could consider whether the motion established James’s entitlement to equitable tolling, the Federal Circuit concluded that it could neither consider nor remand the appeal because its jurisdiction extends only to final Veterans Court decisions. The court therefore did not decide whether equitable tolling applied or whether the Veterans Court had correctly dismissed James’s original appeal as untimely.
Key Takeaways
- A timely post-decision motion for further review can render the underlying Veterans Court judgment nonfinal for purposes of Federal Circuit review.
- The Federal Circuit lacks jurisdiction to review or remand a Veterans Court matter while such a motion remains pending.
- The dismissal left the Veterans Court to address James’s unresolved request for a three-judge panel decision, including any equitable-tolling issue it may present.
Why It Matters
The decision underscores that veterans-benefits litigants generally must await resolution of post-decision review motions before seeking Federal Circuit review. Filing a Federal Circuit appeal while a panel-review motion remains pending may result in dismissal for lack of a final Veterans Court decision.