Arthur L. Hairston, Sr. v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARTHUR L. HAIRSTON, SR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2055
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4692, Judge Amanda L.
Meredith, Judge Coral Wong Pietsch, Judge Joseph L.
Toth.
______________________
Decided: November 7, 2024
______________________
ARTHUR LEE HAIRSTON, I, Martinsburg, WV, pro se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, WILLIAM JAMES
GRIMALDI, PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN,
BENJAMIN ISAAC HERSKOVITZ, Office of General Counsel,
Case: 23-2055 Document: 39 Page: 1 Filed: 11/07/2024

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HAIRSTON v. MCDONOUGH 2
United States Department of Veterans Affairs,
Washington, DC.
______________________
Before DYK, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Arthur L. Hairston, Sr. appeals pro se from a judgment
of the U.S. Court of Appeals for Veterans Claims (“Veterans
Court”), which affirmed a decision of the Board of Veterans
Appeals (“Board”) denying him nonservice-connected
pension benefits. We affirm.
BACKGROUND
Mr. Hairston served in the Air Force from 1974 to 1976,
and from the time of his discharge, he has periodically
received nonservice-connected, need-based pension
benefits. These benefits are not available if the veteran’s
income exceeds a threshold amount.
In December 2018, Mr. Hairston reapplied for pension
benefits and reported in his application that his wife’s
annual income was $20,494. At the time, Mr. Hairston was
also receiving Social Security disability payments in the
amount of $6,876 per year.
The regional office of the Department of Veterans
Affairs denied Mr. Hairston’s claim for pension benefits
because the combined annual income of $27,370 for Mr.
Hairston and his wife exceeded the then-applicable
maximum annual pension rate. Mr. Hairston appealed to
the Board, which affirmed, concluding that his annual
income exceeded the 2019 threshold of $17,724 for one
veteran and one dependent.
Mr. Hairston then appealed to the Veterans Court and
filed a brief in support of his position. The Veterans Court
issued an order stating that it believed his appeal raised
an issue warranting a precedential opinion. The court’s
order additionally asked the Veterans Consortium Pro
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HAIRSTON v. MCDONOUGH 3
Bono Program to identify a “qualified volunteer counsel” to
represent Mr. Hairston in his appeal. S.App’x 18.1
Eventually, that program recommended counsel, and Mr.
Hairston retained Kenneth M. Carpenter and Courtney L.
Smith on a pro bono basis to represent him before the
Veterans Court. Although Mr. Hairston had filed his own
pro se brief, Mr. Carpenter and Ms. Smith filed a motion
seeking leave to file a new brief on Mr. Hairston’s behalf.
The court granted the motion over the government’s
objection. There is no indication that Mr. Hairston’s brief
was stricken.
On April 20, 2023, the Veterans Court issued its
decision. See Hairston v. McDonough, 36 Vet. App. 131
(2023). The court rejected each of Mr. Hairston’s
arguments, concluding that his challenges to the VA’s
application of the threshold limit to the combined annual
income of himself and his wife were unsupported by the
relevant statutes and regulations. See id. at 140–41.
After the Veterans Court issued its decision, Mr.
Hairston filed several documents expressing his
displeasure with Mr. Carpenter’s and Ms. Smith’s
representation, accusing them of malpractice. Mr.
Carpenter and Ms. Smith filed a motion to withdraw as
counsel, which the court granted.
Mr. Hairston continued to file documents with the
Veterans Court, which the court construed as motions for
reconsideration of its earlier decision. The court
understood Mr. Hairston to argue that the court erred by
allowing Mr. Carpenter and Ms. Smith to file new briefs on
his behalf and by considering those briefs in resolving his
appeal. The Veterans Court rejected his claims.
Mr. Hairston appeals.
1 Citations to “S.App’x” are to the supplemental
appendix filed by the government.
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HAIRSTON v. MCDONOUGH 4
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We may
review the validity of a decision with respect to a rule of
law or interpretation of a statute or regulation that was
relied upon by the Veterans Court in making its decision.
Id. § 7292(a). Except for constitutional issues, we may not
review the Veterans Court’s factual findings or its
application of law to facts. Id. § 7292(d)(2). Whether the
Veterans Court properly exercised jurisdiction over Mr.
Hairston’s appeal “is a matter of statutory interpretation”
over which we hold jurisdiction, and “which this court
undertakes de novo.” In re Wick, 40 F.3d 367, 370 (Fed. Cir.
1994) (citing Weddel v. Sec’y of Dep’t of Health & Human
Servs., 23 F.3d 388, 391 (Fed. Cir. 1994)).
Mr. Hairston argues that the Veterans Court lacked
jurisdiction to decide his appeal because it permitted Mr.
Carpenter and Ms. Smith to file new briefs on his behalf,
and that the court violated his constitutional rights when
it considered the new briefs filed by his attorneys but not
the informal brief he previously filed. These arguments are
without merit. Mr. Hairston does not explain why the new
briefing by his then-retained attorneys was improper, and
he does not demonstrate how, if at all, the arguments in
those new briefs deviated from those included in his
informal brief. Contrary to Mr. Hairston’s suggestion that
the Veterans Court “removed” his brief, ECF No. 9-2 at 2,
the Veterans Court’s docket shows that his informal brief
was received by the Veterans Court, it was never stricken
or removed from the record, S.App’x 24–30, and there is no
indication that the Veterans Court failed to consider it.
The Veterans Court did not err in exercising jurisdiction
over Mr. Hairston’s appeal.
AFFIRMED
Costs
No costs.
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