91 F.4th 1167 - Conyers v. McDonough

Case: 23-1525 Document: 26 Page: 1 Filed: 01/30/2024

United States Court of Appeals
for the Federal Circuit
______________________

VINCENT CURTIS CONYERS,
Claimant-Appellant

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2023-1525
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-4423, Judge Coral Wong Pietsch, Judge Grant Jaquith, Judge Joseph L. Toth.
______________________

Decided: January 30, 2024
______________________

V. C. CONYERS, Uniondale, NY, pro se.

MILES JARRAD WRIGHT, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; MICHELLE BERNSTEIN, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
______________________
Case: 23-1525 Document: 26 Page: 2 Filed: 01/30/2024

2 CONYERS v. MCDONOUGH

Before MOORE, Chief Judge, REYNA and HUGHES, Circuit
Judges.
REYNA, Circuit Judge.
Vincent Curtis Conyers, an army veteran, applied for
employment benefits under the Veteran Readiness and
Employment program, a program administered by the
United States Department of Veterans Affairs. After the
VA denied his application, Mr. Conyers requested an administrative review, which resulted in another decision to
deny the application. Mr. Conyers then appealed to the
Board of Veterans’ Appeals, which affirmed the denial decision. Mr. Conyers appealed the Board decision to the
United States Court of Appeals for Veterans Claims, which
affirmed the Board. In reaching its decision, the Veterans
Court rejected Mr. Conyers’ claim that certain documents
formed part of the administrative record under the doctrine
of constructive possession. Because the Veterans Court applied an incorrect legal standard in its review of the doctrine of constructive possession, we vacate and remand for
further proceedings.
BACKGROUND
The U.S. Department of Veterans Affairs (“VA”) administers the Veteran Readiness and Employment program. See Appx1. 1 The Readiness and Employment
program is designed to provide benefits and services “to
help veterans integrate themselves into the civilian work
force.” Id.
In 2013, Mr. Conyers applied for Readiness and Employment program benefits. Appx2. After Mr. Conyers

1 “Appx” refers to the appendix submitted by Mr. Conyers and “SAppx” refers to the appendix submitted with
the Response Brief filed by the government on behalf of the
VA.
Case: 23-1525 Document: 26 Page: 3 Filed: 01/30/2024

CONYERS v. MCDONOUGH 3

submitted various questionnaires and met with a VA counselor, the VA rejected his claim “because his chosen vocational goal was not feasible.” Appx2–3. Mr. Conyers
requested administrative review of the VA’s decision to reject his Readiness and Employment program claim.
Appx3. The VA promptly issued a decision finding that
Mr. Conyers had not identified a reasonably feasible vocational goal. Id. Mr. Conyers appealed to the Board of Veterans’ Appeals (“Board”). Id. The Board affirmed the VA’s
decision that Mr. Conyers’ plan for self-employment was
“not suitable for his circumstances” and thus denied his
claim. Id. Mr. Conyers appealed the Board’s decision to
the U.S. Court of Appeals for Veterans Claims (“Veterans
Court”). See id.
During the appeal before the Veterans Court, Mr. Conyers made multiple requests, including motions to compel, that certain documents be added to the administrative
record. See, e.g., Appx12–20. In response, the VA served
Mr. Conyers amended versions of the record and arranged
for him to review his file. See, e.g., SAppx1–6. Central to
this appeal, the VA refused to add other documents to the
record on grounds that the documents had not been before
the Board or constructively possessed by the Board. See,
e.g., Appx57–59; SAppx8–11.
On April 9, 2020, the Veterans Court denied a motion
to compel the VA to add the additional documents to the
record, finding Mr. Conyers’ arguments that the documents were constructively possessed by the Board to be
without merit. Appx61–65 (“April 2020 Order”). In support, the Veterans Court cited its decision in Euzebio v.
Wilkie,

31 Vet. App. 394

 (2019) (“Euzebio I”). Appx64. In
 Euzebio I, the Veterans Court held that for a document to
 be deemed constructively possessed by the Board, the appellant must establish a “direct relationship” between a
 document and the appellant’s claim (before the Board).
 Euzebio I, 31 Vet. App. at 401–02. Citing Euzebio I and
 referring to its “direct relationship” test, the Veterans
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 4                                   CONYERS v. MCDONOUGH




 Court concluded that Mr. Conyers had “not shown how the
 documents are relevant to the issue on appeal or that he is
 prejudiced.” Appx64. Mr. Conyers filed a motion for reconsideration, which the Veterans Court denied. Appx66–67.
     Subsequent to the April 2020 Order, this court decided
 Euzebio v. McDonough,

989 F.3d 1305

 (Fed. Cir. 2021)
 (“Euzebio II”), which was the appeal of Euzebio I. In
 Euzebio II, we concluded that the “direct relationship”
 standard adopted by the Veterans Court in Euzebio I was
 erroneous.

Id. at 1321

. We held that the correct standard
 for constructive possession is “relevance and reasonableness.”

Id.

 Citing Euzebio II, Mr. Conyers moved the Veterans Court for reconsideration of the April 2020 Order.
 Appx81–87.
     In March 2021, the Veterans Court issued an order
 that denied the motion for reconsideration and noted that
 “any argument that Mr. Conyers has concerning what materials may be considered constructively before the Board
 can be dealt with during the [Veterans] Court’s review of
 the merits of his appeal.” Appx88.
     In August 2022, the Veterans Court issued a single-judge decision affirming the Board’s rejection of Mr. Conyers’ appeal. Conyers v. McDonough, No. 17-4423,

2022 WL 3699552

, at *1, *4 (Vet. App. Aug. 26, 2022). As to the
 issue of constructive possession, the decision stated the
 completeness of the record had “already been adjudicated
 by the [Veterans] Court’s April 9, 2022, [sic] order wherein
 the [Veterans] Court determined that [the] VA satisfied its
 obligation to provide a complete [record].” Id. at *4.
      In September 2022, Mr. Conyers moved for a panel decision, arguing that the Veterans Court had overlooked this
 court’s decision in Euzebio II. Appx255–56 & n.40. His
 request for a panel decision was granted, but the panel affirmed the single-judge decision without addressing or
 mentioning Euzebio II. Appx7. The panel concluded that
 Mr. Conyers had failed to demonstrate that “the single-
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 CONYERS v. MCDONOUGH                                        5



 judge order overlooked or misunderstood a fact or point of
 law prejudicial to the outcome of the petition” or that “there
 [was] any conflict with precedential decisions of the Court.”
 Id.
     Mr. Conyers timely appeals. We have jurisdiction under

38 U.S.C. § 7292

(c).
                    STANDARD OF REVIEW
      Our jurisdiction to review decisions of the Veterans
 Court is limited. Gazelle v. Shulkin,

868 F.3d 1006, 1009

 (Fed. Cir. 2017). We review de novo challenges to the validity of statutes or regulations, and we interpret constitutional and statutory provisions “to the extent presented
 and necessary to a decision.”

38 U.S.C. § 7292

(c); Gazelle,

868 F.3d at 1009

. Whether the Veterans Court applied a
 correct legal standard is a question of law that we review
 on a de novo basis. Euzebio II,

989 F.3d at 1317

 (quoting
 Sneed v. Shinseki,

737 F.3d 719, 724

 (Fed. Cir. 2013));
 Skaar v. McDonough,

48 F.4th 1323, 1331

 (Fed. Cir. 2022).
 We do not have jurisdiction to reweigh factual findings
 reached by the Board, or to reach our own findings of fact
 in the first instance.

38 U.S.C. § 7292

(d)(2); Deloach v.
 Shinseki,

704 F.3d 1370, 1380

 (Fed. Cir. 2013).
                         DISCUSSION
     Mr. Conyers raises two principal issues on appeal, but
 we need only address whether the Veterans Court applied
 the correct legal standard for constructive possession. This
 is a legal question that we review de novo. See Skaar,

48 F.4th at 1331

 (“[W]hether the Veterans Court applied the
 correct legal standard for equitable tolling is a question of
 law we review de novo.”). For the reasons stated below, we
 conclude that the Veterans Court applied an erroneous legal standard.
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 6                                      CONYERS v. MCDONOUGH




     The concept of constructive possession arises in many
 legal contexts, including criminal law and property law. 2
 In the context of veterans law, the constructive possession
 doctrine generally applies such that “evidence that is
 within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and
 the Board[] is constructively part of the administrative record.” Euzebio II,

989 F.3d at 1319

 (internal quotations and
 citations omitted); see also Lang v. Wilkie,

971 F.3d 1348, 1353

 (Fed. Cir. 2020); Golz v. Shinseki,

590 F.3d 1317, 1323

(Fed. Cir. 2010).
At the time when Mr. Conyers filed before the Veterans
Court his motion to compel the addition of documents to
the administrative record, Euzebio II had not issued. The
Veterans Court applied its holding in Euzebio I and rejected Mr. Conyers’ assertion that the documents were constructively possessed by the VA and Board. Appx64.
Euzebio I involved a public document that was published while Mr. Euzebio’s case was pending before the
Board and raised the question of whether the Veterans
Court should have deemed the document to have been constructively possessed by the Board when it reviewed
Mr. Euzebio’s appeal. Euzebio I, 31 Vet. App. at 402.
Based on its review of prior Veterans Court opinions, the
Veterans Court concluded that for a document to be

2 Generally, constructive possession means “[c]ontrol or dominion over a property without actual possession
or custody of it.” Possession, Black’s Law Dictionary (11th
ed. 2019) (see sub-definition on “constructive possession”);
see also 73 C.J.S. Property § 54 (stating, in the context of
real property law, that “[c]onstructive possession describes
the situation in which [a] person who is not in actual physical possession of [the] object can nevertheless be considered in legal possession of the object if it is subject to his or
her dominion and control”).
Case: 23-1525 Document: 26 Page: 7 Filed: 01/30/2024

CONYERS v. MCDONOUGH 7

considered part of the record under a theory of constructive
possession, a veteran must show a “direct relationship” between the document and a claim. Id. at 401. The Veterans
Court rejected Mr. Euzebio’s request to add the document
to the administrative record on grounds that he failed to
demonstrate a direct relationship between the document
and his claim. Id. at 402. This is essentially the same rationale the Veterans Court expressed in this case in its
April 2020 Order denying Mr. Conyers’ motion to compel.
See Appx64. Mr. Euzebio appealed to this court challenging the Veterans Court’s statement of the legal standard
applicable for constructive possession.
On appeal, we reviewed the legal standard applied by
the Veterans Court and held that the direct relationship
test was “without basis in relevant statute or regulation.”
Euzebio II,

989 F.3d at 1320

. We reasoned that the Veterans Court had improperly imported the “direct relationship” requirement from earlier Veterans Court opinions,
 and that the requirement was otherwise “untethered” from
 applicable legal standards.

Id.

 We held that the correct
 standard for constructive possession is whether the evidence is “relevant and reasonably connected to the veteran’s claim.”

Id. at 1321

 (internal quotations and citations
 omitted). We noted that requiring a showing of relevance
 and not a direct relationship “makes sense in light of the
 VA’s statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.”

Id.

 (internal quotations and citations omitted). The constructive
 possession doctrine provides a safeguard that ensures all
 record documents reasonably expected to be part of a veteran’s claim are included in the administrative record.

Id.

 at 1325–26.
      After Euzebio II was issued, Mr. Conyers repeatedly
 raised the decision to the Veterans Court’s attention. See,
 e.g., Appx117–19, Appx255–56. But the Veterans Court ultimately did not address the issue, failing to even mention
 Euzebio II in any subsequent decisions. For example, in its
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 8                                   CONYERS v. MCDONOUGH




 order addressing Mr. Conyers’ request for reconsideration,
 the Veterans Court deferred the issue, stating it would be
 “dealt with” in its review of the merits of the appeal.
 Appx88. But the issue was not dealt with in the review of
 the merits. In the single-judge final merits decision, the
 Veterans Court simply asserted that the dispute had already been addressed by the Veterans Court in its April
 2020 Order, an order that predated Euzebio II. See Conyers,

2022 WL 3699552

, at *4. Nor did the Veterans Court
 confront the issue in December 2022 when faced with
 Mr. Conyers’ request for panel rehearing, which again
 urged review of Euzebio II. See Appx9; Appx255–56.
      The government argues that the Veterans Court’s reliance on Euzebio I was not legal error because the Veterans
 Court’s April 2020 Order provides that Mr. Conyers had
 failed to show how the documents are “relevant” or that he
 is prejudiced. Appellee Br. 11–12; see also Appx64. According to the government, this reference to “relevant” shows
 that the April 2020 Order was “consistent with” the correct
 legal standard this court later articulated in Euzebio II.
 Appellee Br. 11–12. The government also argues that if
 there was any error, such error was harmless and without
 prejudice. See, e.g., id. at 13. We are not persuaded.
      In the April 2020 Order, the Veterans Court concluded
 that Mr. Conyers “has not shown how the documents are
 relevant to the issue on appeal or that he is prejudiced.”
 Appx64. At a minimum, the government asks us to conflate Euzebio I and Euzebio II by mixing and matching the
 concepts of “relevance” and “direct relationship.” The government overlooks that in Euzebio II, we rejected as “facially incorrect” the argument made by the government
 that “‘direct relationship’ and ‘relevance’ are more or less
 the same standard.” See Euzebio II,

989 F.3d at 1324

.
 There is nothing in the April 2020 Order that shows the
 Veterans Court recognized a distinction between the “relevance” and “direct relationship” standards. There is no basis to conclude that the Veterans Court’s pre-Euzebio II
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 CONYERS v. MCDONOUGH                                      9



 order applied the standard we later articulated in
 Euzebio II.
     Regarding the government’s assertion that any error
 by the Veterans Court was harmless, we lack jurisdiction
 to apply the facts to the law and thus to assess whether,
 under the correct legal standard, the Board had constructive possession of the requested documents. This is a question for the Veterans Court. Id.; see also

38 U.S.C. § 7292

(d)(2).
     We hold that the Veterans Court applied an erroneous
 legal standard for constructive possession. We therefore
 vacate the decision of the Veterans Court and remand with
 instructions that the Veterans Court apply the correct
 standard set forth in Euzebio II in its review of Mr. Conyers’ claim that certain documents be made part of the
 administrative record and considered in the review of his
 appeal of the denial of his application for Readiness and
 Employment program benefits.
                         CONCLUSION
     We hold that the Veterans Court applied an incorrect
 standard in its constructive possession analysis. We vacate
 the decision of the Veterans Court and remand for the Veterans Court to apply the legal standard that we articulated
 in Euzebio II. Because we vacate and remand, we need not
 reach Mr. Conyers’ other arguments.
                VACATED AND REMANDED
                           COSTS
 Costs to Mr. Conyers.