NOTE: This disposition is nonprecedential.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. Meredith, 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 Division, 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: 1 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 reasons 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 unmistakable 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 decision, the RO informed Mr. Hernandez of the various options and requisite forms available to him should he wish 

to appeal the RO’s decision. S. Appx. 25–26. Mr. Hernandez did not file any of the required forms to docket an appeal, 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 decision. 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: 2 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 decision. 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 involving 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. Informal Brief of Appellant at 1–2. He also makes several arguments regarding the Veterans Court’s jurisdiction to 

review his petition. See generally id. at Evidence and Arguments in Support of Informal Brief. 

In its October 2022 decision, the Veterans Court evaluated 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: 3 Filed: 01/31/2024
4 HERNANDEZ v. MCDONOUGH

inappropriately refused to docket his appeal, (2) Mr. Hernandez 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 determination 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) (“characterization 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 jurisdiction. We therefore lack jurisdiction over Mr. Hernandez’s 

appeal.

CONCLUSION

We have considered Mr. Hernandez’s remaining arguments and find them unpersuasive. For the foregoing reasons, we dismiss for lack of jurisdiction.

DISMISSED

COSTS

No costs.

Case: 23-1822 Document: 35 Page: 4 Filed: 01/31/2024