James A. Lemmon v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES A. LEMMON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2047
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-6836, Judge Joseph L. Toth.
______________________
Decided: March 14, 2025
______________________
J AMES A. LEMMON, Port Ludlow, WA, pro se.
CHRISTOPHER B ERRIDGE , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. B OYNTON, WILLIAM J AMES GRIMALDI,
P ATRICIA M. MC CARTHY.
______________________
Before R EYNA , C UNNINGHAM , and STARK, Circuit Judges.
P ER C URIAM .
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LEMMON v. COLLINS 2
James A. Lemmon appeals pro se from an April 16,
2024 order of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”). Lemmon v. McDonough,
No. 23-6836, 2024 WL 1632841 (Vet. App. Apr. 16, 2024)
(“Order”). The Veterans Court dismissed Mr. Lemmon’s
appeal because he filed his notice of appeal after the appeal
deadline had passed, and he did not demonstrate that eq-
uitable tolling was warranted. Order at *3. For the rea-
sons below, we dismiss Mr. Lemmon’s appeal for lack of
jurisdiction.
I. B ACKGROUND
Mr. Lemmon served on active duty in the United States
Navy from February 1964 to February 1966. S. App’x 15,
17. On March 4, 2021, the Board of Veterans’ Appeals
(“Board”) denied Mr. Lemmon service connection for fifteen
conditions or disabilities and denied entitlement to special
monthly compensation. S. App’x 10–24.1 On November 6,
2023, Mr. Lemmon filed a notice of appeal with the Veter-
ans Court. Order at *1; S. App’x 8; App’x 37.2 The Secre-
tary of Veterans Affairs (“VA”) subsequently filed a motion
to dismiss Mr. Lemmon’s appeal on the grounds that his
notice of appeal was untimely. S. App’x 8. In opposition to
the motion to dismiss, Mr. Lemmon responded that he
never received a copy of the Veterans Court’s decision by
mail. App’x 2–3. He further argued that there were four
extraordinary circumstances that prevented him from
timely filing his notice of appeal: (1) his misfiling of his
notice of appeal at the VA’s Seattle regional office; (2) his
reliance on an incorrect statement from a VA employee;
1 We refer to the supplemental appendix filed as an
attachment to the Secretary of Veterans Affairs’ informal
response brief as “S. App’x.” ECF No. 13.
2 We refer to the appendix filed by Mr. Lemmon in
support of his informal brief as “App’x.” ECF No. 16. The
cited pages correspond to the page numbering as docketed
in ECF No. 16.
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LEMMON v. COLLINS 3
(3) the COVID-19 pandemic; and (4) his mental illnesses.3
Order at *2; App’x 2–7.
On April 16, 2024, the Veterans Court granted the VA’s
motion to dismiss. Order at *3. The Veterans Court con-
cluded that Mr. Lemmon had only asserted nonreceipt of
the Board’s decision and had failed to present clear evi-
dence rebutting the presumption of regularity that applies
to the Board’s mailing practice. Id. at *1–2. As a result,
the Veterans Court determined that Mr. Lemmon should
have submitted his notice of appeal within 120 days of the
issuance of the Board’s decision on March 4, 2021, i.e., by
July 2, 2021. Id. at *1–2 (citing 38 U.S.C. § 7266(a)).
Next, the Veterans Court considered whether Mr. Lem-
mon’s notice of appeal might otherwise be accepted as
timely based on equitable tolling. Id. at *2–3. The Veter-
ans Court found the four circumstances raised by Mr. Lem-
mon insufficient to warrant equitable tolling. Id. With
respect to Mr. Lemmon’s misfiling, the Veterans Court
found that the evidence showed that Mr. Lemmon’s sub-
mission of documents to the VA Claims Intake Center oc-
curred on July 15, 2021, thirteen days after the 120-day
appeal period expired. Id. at *2. Thus, even this filing
would have been untimely. Id. With respect to Mr. Lem-
mon’s reliance on an incorrect statement from a VA official,
the Veterans Court observed that Mr. Lemmon had not ex-
plained what inaccurate information he received from a VA
employee that caused his late filing and thus had not es-
tablished the necessary cause-and-effect relationship be-
tween the alleged misinformation provided and his late
filing. Id. at *3. With respect to the COVID-19 pandemic,
the Veterans Court noted that Mr. Lemmon provided no
explanation of how the pandemic prevented his ability to
timely file his notice of appeal and that Mr. Lemmon
3 Although Mr. Lemmon identified physical illnesses
as well, Mr. Lemmon provided only his diagnosis regarding
mental illness to support his extraordinary circumstance
argument. Order at *3.
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LEMMON v. COLLINS 4
therefore failed to establish the connection between the
pandemic and his failure to timely file. Id. With respect to
Mr. Lemmon’s mental illnesses, the Veterans Court ex-
plained that Mr. Lemmon’s diagnosis and vague assertions
of mental illness were insufficient to show that equitable
tolling was warranted. Id. Having concluded that Mr.
Lemmon filed his notice of appeal 881 days late and that
he had failed to demonstrate entitlement to equitable toll-
ing, the Veterans Court dismissed Mr. Lemmon’s appeal.
Id.
On April 27, 2024, Mr. Lemmon filed a motion for re-
consideration or, in the alternative, for panel review.
S. App’x 8; App’x 38–39. On June 4, 2024, the Veterans
Court denied the motion for reconsideration, granted the
motion for panel decision, and ordered that the single-
judge order remain the decision of the court. S. App’x 25–
26; S. App’x 8. This appeal followed.
II. DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review “all relevant questions of
law, including interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). Unless the appeal pre-
sents a constitutional issue, we “may not review (A) a chal-
lenge 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).
Mr. Lemmon argues that he has provided evidence
showing he never received the Board’s decision by mail and
that he has submitted all his filings on time and to the best
of his ability. Appellant’s Br. 1–2.4 Mr. Lemmon also ar-
gues that equitable tolling is warranted as he faced the
4 We refer to Mr. Lemmon’s compliant informal brief
as “Appellant’s Br.” ECF No. 15.
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LEMMON v. COLLINS 5
“extraordinary circumstance of not being able to file a [no-
tice of appeal].” Appellant’s Br. 2.
On appeal, Mr. Lemmon’s arguments do not implicate
any issues within this court’s jurisdiction. Mr. Lemmon’s
request that we review the Veterans Court’s finding that
his notice of appeal was untimely amounts to a challenge
to the Veterans Court’s factual determination that his prof-
fered evidence does not suffice to overcome the presump-
tion that the Board’s decision was properly mailed on
March 4, 2021. See, e.g., Miley v. Principi, 366 F.3d 1343,
1346 (Fed. Cir. 2004) (declining to address whether the ev-
idence in the record justified the Board’s conclusion, sus-
tained by the Veterans Court, that the notice of decision
was properly mailed as that would require reviewing fac-
tual determinations). Review of Mr. Lemmon’s argument
that he faced extraordinary circumstances that justify the
application of equitable tolling would “constitute[], at the
very least, the application of the law of equitable tolling to
the facts of the case.” Leonard v. Gober, 223 F.3d 1374,
1376 (Fed. Cir. 2000). As Mr. Lemmon does not raise a
constitutional issue and only challenges factual determina-
tions or applications of law to the facts of this case, we lack
jurisdiction to review his arguments.
III. C ONCLUSION
We have considered Mr. Lemmon’s remaining argu-
ments and find that none of the arguments raises a non-
frivolous issue over which we can assert jurisdiction. For
these reasons, we dismiss Mr. Lemmon’s appeal.
DISMISSED
C OSTS
No costs.
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