Case: 23-1822 Document: 35 Page: 1 Filed: 01/31/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOE A. HERNANDEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1822
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-5943, Judge Amanda L. Mere-
dith, Judge Grant Jaquith, Judge Joseph L. Falvey, Jr.
______________________
Decided: January 31, 2024
______________________
JOE A. HERNANDEZ, San Antonio, TX, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, ERIC P. BRUSKIN, PATRICIA M. MCCARTHY.
______________________
Before MOORE, Chief Judge, HUGHES and CUNNINGHAM,
Circuit Judges.
Case: 23-1822 Document: 35 Page: 2 Filed: 01/31/2024
2 HERNANDEZ v. MCDONOUGH
PER CURIAM.
Joe A. Hernandez appeals from a decision of the U.S.
Court of Appeals for Veterans Claims (Veterans Court)
denying his petition for a writ of mandamus. For the rea-
sons discussed below, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Hernandez served in the Army from May 1976 to
August 1980. S. Appx. 36. 1 In August 1980, the Veterans
Affairs Regional Office (RO) granted Mr. Hernandez a 40%
disability rating for cervical spondylosis and degenerative
disc disease. In September 2019, Mr. Hernandez requested
his ratings decision be revised based on clear and unmis-
takable error (CUE). S. Appx. 10–21. In June 2020, the
RO issued a decision denying Mr. Hernandez’s request to
reopen and revise his ratings decision based on CUE. S.
Appx. 36–38. In a letter accompanying the June 2020 de-
cision, the RO informed Mr. Hernandez of the various op-
tions and requisite forms available to him should he wish
to appeal the RO’s decision. S. Appx. 25–26. Mr. Hernan-
dez did not file any of the required forms to docket an ap-
peal, despite several attempts by the Department of
Veterans Affairs (VA) to direct him to the proper forms. S.
Appx. 55–58.
In July 2022, Mr. Hernandez petitioned the Veterans
Court for a writ of mandamus, asking the court to compel
the VA to adjudicate his appeal of the June 2020 RO deci-
sion. S. Appx. 51–54. The Veterans Court requested Mr.
Hernandez submit more information and, after receiving
Mr. Hernandez’s response, dismissed the petition without
prejudice for failure to comply with Rule 21(a). Hernandez
v. McDonough, No. 22-4586, 2022 WL 4363477, at *2 (Vet.
App. Sept. 21, 2022) (Hernandez I). In October 2022, Mr.
Hernandez filed another petition for a writ of mandamus
1 “S. Appx.” refers to the Corrected Supplemental
Appendix.
Case: 23-1822 Document: 35 Page: 3 Filed: 01/31/2024
HERNANDEZ v. MCDONOUGH 3
with the Veterans Court, again asking the court to compel
the VA to adjudicate his appeal of the June 2020 RO deci-
sion. S. Appx. 88–90. On October 26, 2022, the Veterans
Court denied the petition because Mr. Hernandez did not
meet his burden of demonstrating he is clearly entitled to
a writ. Hernandez v. McDonough, No. 22-5943, 2022 WL
14763228, at *2 (Vet. App. Oct. 26, 2022) (Hernandez II).
Mr. Hernandez appeals.
DISCUSSION
Our jurisdiction over decisions of the Veterans Court is
limited. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual matter)
that was relied on by the [Veterans] Court in making the
decision.” Except with respect to constitutional issues, 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.” 38 U.S.C. § 7292(d)(2). We have
jurisdiction to review the Veterans Court’s denial of a writ
of mandamus in some circumstances, such as those involv-
ing the interpretation of a regulation or statute. See Lamb
v. Principi, 284 F.3d 1378, 1381 (Fed. Cir. 2002).
Mr. Hernandez argues the Veterans Court’s October
2022 decision is contrary to law because it dismissed his
petition without prejudice contrary to 28 U.S.C. § 1651(a),
Rule 21(d), and Article III of the U.S. Constitution. Infor-
mal Brief of Appellant at 1–2. He also makes several argu-
ments regarding the Veterans Court’s jurisdiction to
review his petition. See generally id. at Evidence and Ar-
guments in Support of Informal Brief.
In its October 2022 decision, the Veterans Court eval-
uated the merits of Mr. Hernandez’s petition and denied it
because he failed to demonstrate clear entitlement to a
writ. Hernandez II, 2022 WL 14763228, at *2. In denying
the petition, the Veterans Court found the petition did not
demonstrate: (1) any factual or legal basis showing the VA
Case: 23-1822 Document: 35 Page: 4 Filed: 01/31/2024
4 HERNANDEZ v. MCDONOUGH
inappropriately refused to docket his appeal, (2) Mr. Her-
nandez timely filed the proper appeal form, or (3) the VA
waived the requirement to file the correct form. Id. In
other words, the Veterans Court found Mr. Hernandez
never filed an appeal of the June 2020 RO decision so there
was nothing to order the VA to adjudicate. This determi-
nation is a finding of fact which we do not have jurisdiction
to review. See 38 U.S.C. § 7292(a).
Mr. Hernandez does not allege any other error over
which we could exercise jurisdiction. See 38 U.S.C.
§ 7292(a). The Veterans Court did not interpret 28 U.S.C.
§ 1651(a) or Rule 21(d) in its opinion. It applied the law to
the facts of the case, which we do not have jurisdiction to
review. See 38 U.S.C. § 7292(d)(2). Further, we note Mr.
Hernandez’s unsupported invocation of Article III of the
U.S. Constitution does not provide us jurisdiction. See
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“char-
acterization of [a] question as constitutional in nature does
not confer upon us jurisdiction that we otherwise lack”).
Alleging error without sufficient detail or analysis does not
create a constitutional issue within this Court’s jurisdic-
tion. We therefore lack jurisdiction over Mr. Hernandez’s
appeal.
CONCLUSION
We have considered Mr. Hernandez’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.