Case: 23-2079 Document: 16 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
ROBERTO R. HERRERA, JR., Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________
2023-2079 ______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 22-2457, Senior Judge Mary J. Schoelen. ______________________
Decided: December 7, 2023 ______________________
ROBERTO R. HERRERA, JR., San Antonio, TX, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, BENJAMIN ISAAC HERSKOVITZ, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. Case: 23-2079 Document: 16 Page: 2 Filed: 12/07/2023
______________________
Before LOURIE, PROST, and REYNA, Circuit Judges. PER CURIAM. Roberto Herrera, a veteran, appeals pro se a decision of the United States Court of Appeals for Veterans Claims. The Veterans Court affirmed the Board of Veterans’ Ap- peals’ finding that Mr. Herrera was not entitled to a rating in excess of ninety percent for bilateral hearing loss or an effective date earlier than January 9, 2018 for that ninety percent rating. Because we lack jurisdiction to decide the issues that Mr. Herrera raises or they are otherwise too underdeveloped for us to review, we dismiss his appeal. BACKGROUND Mr. Herrera served in the United States Marine Corps from February 1969 to January 1971. Herrera v. McDonough, No. 22-2457, 2023 WL 1954683, at *1 (Vet. App. Feb. 13, 2023) (“Decision”). He was first granted a service connection for bilateral hearing loss in March 2004. Id. In January 2018, an audiologist for the United States Department of Veterans Affairs (“VA”) examined Mr. Her- rera. Id. at *2. Based on the results of that examination, the VA increased Mr. Herrera’s disability rating for bilat- eral hearing loss to ninety percent, effective January 9, 2018. Id. Mr. Herrera timely challenged that decision and, after the VA again denied his request for an increased rat- ing and earlier effective date, he appealed to the Board of Veterans’ Appeals (“Board”). Id. The Board reached the same conclusion as the VA. Id. at *2–3. It found that Mr. Herrera had not met the criteria to support a disability rating of more than ninety percent bilateral hearing loss. Id. It also found the January 2018 report did not specify when symptoms started, such that it Case: 23-2079 Document: 16 Page: 3 Filed: 12/07/2023
HERRERA v. MCDONOUGH 3
would be “‘speculative’ to ascertain when the increased dis- ability began.” Id. at *3. On appeal, the United States Court of Appeals for Vet- erans Claims (“Veterans Court”) issued a single-judge memorandum decision affirming the Board. Id. at *1. Two months later, the Veterans Court granted Mr. Herrera’s motion for a panel decision and adopted the single-judge decision as the decision of the panel. Appx16–17. 1 Mr. Herrera then filed a motion under Rule 35(c) of the Veter- ans Court’s Rules of Practice and Procedure (“Veterans Court Rules”) for Full Court Review, challenging both the single-judge and panel decisions. See Appx18. The Veter- ans Court denied his request. Id. This appeal followed. STANDARD OF REVIEW Our jurisdiction in cases from the Veterans Court is limited by statute. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We may “decide all relevant ques- tions of law, including interpreting constitutional and stat- utory provisions.” 38 U.S.C. § 7292(d)(1). Absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or reg- ulation as applied to the facts of a particular case.” Id. § 7292(d)(2). DISCUSSION On appeal, Mr. Herrera appears to raise two overarch- ing issues, both related to his denied request for review by the full Veterans Court. First, Mr. Herrera apparently ar- gues that full court review was required because the single- judge and panel decisions “overlooked a fact and point of law prejudicial to the outcome of the appeal.” Informal
1 “Appx” refers to the appendix submitted with the Response Brief filed by the government on behalf of the VA. Case: 23-2079 Document: 16 Page: 4 Filed: 12/07/2023
Opening Br. 1. Second, Mr. Herrera includes language in the caption of his informal reply brief stating, “RICO Con- spiracy based on Official Misconduct & allege accomplice & co-conspirators.” Informal Reply Br. 1. Mr. Herrera ap- pears to contend that the judges of the Veterans Court have a “pattern [and] practice” of denying Rule 35(c) motions for full Veterans Court review, amounting to “errant judge ju- dicial misbehavior” that should be “subject to RICO re- view.” Id. at 7–8. All of Mr. Herrera’s arguments appear to be based on the application of Veterans Court Rule 35. That rule per- mits litigants to file Motions for Full Court Review of a sin- gle-judge or panel decision. Vet. App. R. 35(c). But motions for full court review are “not favored” and “will not be granted unless such action is necessary to secure or main- tain uniformity of the Court’s decisions or to resolve a ques- tion of exceptional importance.” Id. A party wishing to file a Veterans Court Rule 35 motion must include a support- ing argument that states the “points of law or fact that the party believes the Court has overlooked or misunderstood.” Id. at Rule 35(e)(1). We lack jurisdiction to consider Mr. Herrera’s argu- ments regarding the Veterans Court’s application of its Rule 35 in his case. Absent a constitutional issue, we may not review a challenge to the Veterans Court’s application of a law or regulation to the facts of a particular case. 38 U.S.C. § 7292(d)(2). And we have previously concluded that denial of such requests does not violate due process. Arnesen v. Principi, 300 F.3d 1353, 1360–61 (Fed. Cir. 2002). Mr. Herrera asserts there were “overlooked facts” and proceeds to quote from various sources. We are unable to discern from his informal briefs what points of law or fact he believes were overlooked or misunderstood by the Vet- erans Court and find this argument must fail. See, e.g., Informal Br. 2. Moreover, even if we were able to discern Case: 23-2079 Document: 16 Page: 5 Filed: 12/07/2023
HERRERA v. MCDONOUGH 5
what facts were overlooked, review of them would also in- volve application of law to fact that we may not do. 38 U.S.C. § 7292(d)(1) Mr. Herrera’s judicial misconduct challenge also fails. The crux of Mr. Herrera’s argument appears to be that the Veterans Court has conspired to deny full court review of a collection of cases, including his, filed pro se by a group of Texas veterans. Informal Reply Br. 7. But merely stating disagreement with a lower court’s decisions, with no sup- porting evidence, does not amount to a developed argument to support a claim. Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006); see also Gelb v. Dept. of Veter- ans Affs., No. 2023-1157, 2023 WL 3493702, at *7 n.6 (Fed. Cir. May 17, 2023) (nonprecedential).
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Case: 23-2079 Document: 16 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
ROBERTO R. HERRERA, JR., Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________
2023-2079 ______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 22-2457, Senior Judge Mary J. Schoelen. ______________________
Decided: December 7, 2023 ______________________
ROBERTO R. HERRERA, JR., San Antonio, TX, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, BENJAMIN ISAAC HERSKOVITZ, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. Case: 23-2079 Document: 16 Page: 2 Filed: 12/07/2023
______________________
Before LOURIE, PROST, and REYNA, Circuit Judges. PER CURIAM. Roberto Herrera, a veteran, appeals pro se a decision of the United States Court of Appeals for Veterans Claims. The Veterans Court affirmed the Board of Veterans’ Ap- peals’ finding that Mr. Herrera was not entitled to a rating in excess of ninety percent for bilateral hearing loss or an effective date earlier than January 9, 2018 for that ninety percent rating. Because we lack jurisdiction to decide the issues that Mr. Herrera raises or they are otherwise too underdeveloped for us to review, we dismiss his appeal. BACKGROUND Mr. Herrera served in the United States Marine Corps from February 1969 to January 1971. Herrera v. McDonough, No. 22-2457, 2023 WL 1954683, at *1 (Vet. App. Feb. 13, 2023) (“Decision”). He was first granted a service connection for bilateral hearing loss in March 2004. Id. In January 2018, an audiologist for the United States Department of Veterans Affairs (“VA”) examined Mr. Her- rera. Id. at *2. Based on the results of that examination, the VA increased Mr. Herrera’s disability rating for bilat- eral hearing loss to ninety percent, effective January 9, 2018. Id. Mr. Herrera timely challenged that decision and, after the VA again denied his request for an increased rat- ing and earlier effective date, he appealed to the Board of Veterans’ Appeals (“Board”). Id. The Board reached the same conclusion as the VA. Id. at *2–3. It found that Mr. Herrera had not met the criteria to support a disability rating of more than ninety percent bilateral hearing loss. Id. It also found the January 2018 report did not specify when symptoms started, such that it Case: 23-2079 Document: 16 Page: 3 Filed: 12/07/2023
HERRERA v. MCDONOUGH 3
would be “‘speculative’ to ascertain when the increased dis- ability began.” Id. at *3. On appeal, the United States Court of Appeals for Vet- erans Claims (“Veterans Court”) issued a single-judge memorandum decision affirming the Board. Id. at *1. Two months later, the Veterans Court granted Mr. Herrera’s motion for a panel decision and adopted the single-judge decision as the decision of the panel. Appx16–17. 1 Mr. Herrera then filed a motion under Rule 35(c) of the Veter- ans Court’s Rules of Practice and Procedure (“Veterans Court Rules”) for Full Court Review, challenging both the single-judge and panel decisions. See Appx18. The Veter- ans Court denied his request. Id. This appeal followed. STANDARD OF REVIEW Our jurisdiction in cases from the Veterans Court is limited by statute. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We may “decide all relevant ques- tions of law, including interpreting constitutional and stat- utory provisions.” 38 U.S.C. § 7292(d)(1). Absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or reg- ulation as applied to the facts of a particular case.” Id. § 7292(d)(2). DISCUSSION On appeal, Mr. Herrera appears to raise two overarch- ing issues, both related to his denied request for review by the full Veterans Court. First, Mr. Herrera apparently ar- gues that full court review was required because the single- judge and panel decisions “overlooked a fact and point of law prejudicial to the outcome of the appeal.” Informal
1 “Appx” refers to the appendix submitted with the Response Brief filed by the government on behalf of the VA. Case: 23-2079 Document: 16 Page: 4 Filed: 12/07/2023
Opening Br. 1. Second, Mr. Herrera includes language in the caption of his informal reply brief stating, “RICO Con- spiracy based on Official Misconduct & allege accomplice & co-conspirators.” Informal Reply Br. 1. Mr. Herrera ap- pears to contend that the judges of the Veterans Court have a “pattern [and] practice” of denying Rule 35(c) motions for full Veterans Court review, amounting to “errant judge ju- dicial misbehavior” that should be “subject to RICO re- view.” Id. at 7–8. All of Mr. Herrera’s arguments appear to be based on the application of Veterans Court Rule 35. That rule per- mits litigants to file Motions for Full Court Review of a sin- gle-judge or panel decision. Vet. App. R. 35(c). But motions for full court review are “not favored” and “will not be granted unless such action is necessary to secure or main- tain uniformity of the Court’s decisions or to resolve a ques- tion of exceptional importance.” Id. A party wishing to file a Veterans Court Rule 35 motion must include a support- ing argument that states the “points of law or fact that the party believes the Court has overlooked or misunderstood.” Id. at Rule 35(e)(1). We lack jurisdiction to consider Mr. Herrera’s argu- ments regarding the Veterans Court’s application of its Rule 35 in his case. Absent a constitutional issue, we may not review a challenge to the Veterans Court’s application of a law or regulation to the facts of a particular case. 38 U.S.C. § 7292(d)(2). And we have previously concluded that denial of such requests does not violate due process. Arnesen v. Principi, 300 F.3d 1353, 1360–61 (Fed. Cir. 2002). Mr. Herrera asserts there were “overlooked facts” and proceeds to quote from various sources. We are unable to discern from his informal briefs what points of law or fact he believes were overlooked or misunderstood by the Vet- erans Court and find this argument must fail. See, e.g., Informal Br. 2. Moreover, even if we were able to discern Case: 23-2079 Document: 16 Page: 5 Filed: 12/07/2023
HERRERA v. MCDONOUGH 5
what facts were overlooked, review of them would also in- volve application of law to fact that we may not do. 38 U.S.C. § 7292(d)(1) Mr. Herrera’s judicial misconduct challenge also fails. The crux of Mr. Herrera’s argument appears to be that the Veterans Court has conspired to deny full court review of a collection of cases, including his, filed pro se by a group of Texas veterans. Informal Reply Br. 7. But merely stating disagreement with a lower court’s decisions, with no sup- porting evidence, does not amount to a developed argument to support a claim. Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006); see also Gelb v. Dept. of Veter- ans Affs., No. 2023-1157, 2023 WL 3493702, at *7 n.6 (Fed. Cir. May 17, 2023) (nonprecedential). Even if we liberally construe Mr. Herrera’s claim as one that the Veterans Court is misinterpreting Veterans Court Rule 35(c) in these cases, Mr. Herrera provides inadequate basis to sup- port such a serious charge. Again, Veterans Court Rule 35(c) presents a high bar before the Veterans Court will agree that a “not favored” motion for full court review must be granted. Mr. Herrera fails to allege any facts that would reasonably support a claim of judicial misconduct in the Veterans Court’s determinations that this high bar was not met in his referenced cases. To the extent Mr. Herrera has characterized any argu- ments as constitutional, this does not cure the jurisdic- tional deficiency of his appeal. Mr. Herrera’s informal brief, for example, checks the box stating that the Veterans Court decided a constitutional issue and asserts that an unspecified party or parties has “prevent[ed] WestLaw publication” of complaints against federal judges. Informal Opening Br. 2. But simply labeling contentions as consti- tutional “does not confer upon us jurisdiction that we oth- erwise lack.” Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). We discern no constitutional issue that would be appropriate for resolution in Mr. Herrera’s appeal. Case: 23-2079 Document: 16 Page: 6 Filed: 12/07/2023
CONCLUSION We have considered Mr. Herrera’s remaining argu- ments and find them unpersuasive. For the reasons stated, the appeal is dismissed, including for lack of jurisdiction. DISMISSED COSTS No costs.