Case: 22-1772 Document: 22 Page: 1 Filed: 03/09/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HENRY M. GARCIA, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1772
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4007, Judge Grant Jaquith.
______________________
Decided: March 9, 2023
______________________
HENRY M. GARCIA, JR., San Antonio, TX, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM.
______________________
Before DYK, BRYSON, and PROST, Circuit Judges.
Case: 22-1772 Document: 22 Page: 2 Filed: 03/09/2023
2 GARCIA v. MCDONOUGH
PER CURIAM.
Henry M. Garcia appeals a decision of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) reject-
ing his motion for en banc review as untimely. For the rea-
sons set forth below, we dismiss the appeal.
BACKGROUND
Mr. Garcia is a U.S. Army veteran. See Appx1. 1 In
2019, the Veterans Court in a single-judge decision rejected
an appeal from Mr. Garcia of a 2018 Board of Veterans’ Ap-
peals decision. See Garcia v. Wilkie, U.S. Vet. App. No. 18-
5265 (Aug. 16, 2019) (“Garcia I”). On reconsideration, that
court issued a panel decision upholding the earlier single-
judge decision. See Garcia v. Wilkie, U.S. Vet. App. No. 18-
5265 (Nov. 12, 2019) (“Garcia II”). The court entered judg-
ment, and the mandate followed.
Mr. Garcia filed a separate notice of appeal to the Vet-
erans Court on June 6, 2020, that appeared to appeal Gar-
cia II; on the Secretary’s motion, the Veterans Court—in
another single-judge decision—dismissed that appeal on
res judicata grounds on May 27, 2021. Garcia v.
McDonough, No. 20-4007,
2021 WL 2142624, at *2 (Vet.
App. May 27, 2021) (“Garcia III”). Mr. Garcia sought full-
court review of Garcia III, and the judge assigned to his
case rejected the request because the Veterans Court’s
rules do not allow a motion for full-court review directly
from a single-judge decision. The judge afforded Mr. Gar-
cia an additional opportunity to seek reconsideration of the
decision by a panel of judges, which Mr. Garcia did on
July 24, 2021.
The Veterans Court granted Mr. Garcia’s motion for a
panel decision on December 21, 2021, and the assigned
1 “Appx” refers to the appendix attached to the gov-
ernment’s informal response brief.
Case: 22-1772 Document: 22 Page: 3 Filed: 03/09/2023
GARCIA v. MCDONOUGH 3
panel adopted the single-judge decision as its own. No
party sought full-court review within the time prescribed
in Rule 35(c) of the Rules of the Veterans Court, and the
court entered its judgment on January 6, 2022. On Janu-
ary 18, 2022, Mr. Garcia filed a motion seeking full-court
review, and on March 11, 2022, the court informed Mr.
Garcia that his motion was untimely.
Mr. Garcia filed a notice of appeal to this court on
March 21, 2022. Appx8, Appx11. The government moved
to dismiss the appeal, and we granted the motion in part,
agreeing that Mr. Garcia “cannot appeal from the Veterans
Court’s judgment and decision on his benefits claim be-
cause his appeal would be untimely.” Appx11. We were,
however, “not yet prepared to dismiss this appeal” because
“Mr. Garcia filed his notice of appeal within 60 days from
the Veterans Court’s rejection of his motion for en banc re-
view.”
Id. Accordingly, “to the extent that action is an ap-
pealable decision, . . . Mr. Garcia’s notice of appeal could be
liberally construed as seeking to appeal that action to this
court.”
Id. We address that question now.
DISCUSSION
In appeals from the Veterans Court, we “decide all rel-
evant questions of law, including interpreting constitu-
tional and statutory provisions.”
38 U.S.C. § 7292(d)(1).
We “may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.”
Id. § 7292(d)(2).
We do not have jurisdiction to hear Mr. Garcia’s appeal
of the Veterans Court’s decision to reject his motion for en
banc review because it did not involve the validity or inter-
pretation of a statute or regulation. “[A]n interpretation of
a statute or regulation occurs when its meaning is elabo-
rated by the court.” Forshey v. Principi,
284 F.3d 1335,
1349 (Fed. Cir. 2002). Because the Veterans Court did not
elaborate upon the meaning of any statute or regulation
and, instead, straightforwardly applied its rules to the
Case: 22-1772 Document: 22 Page: 4 Filed: 03/09/2023
4 GARCIA v. MCDONOUGH
facts—the timing of its decision and the timing of Mr. Gar-
cia’s motion—Mr. Garcia’s appeal is outside our jurisdic-
tion. See Arnesen v. Principi,
300 F.3d 1353, 1360 (Fed.
Cir. 2002) (dismissing as factual a challenge to a Veterans
Court decision based on Veterans Court Rule 35(c)).
Mr. Garcia argues that he “raised a constitutional
question where he asserts that he was denied notice of or
opportunity to challenge the Veterans Court[’s] correct un-
derstanding of the governing law.” Appellant’s Informal
Br. 2. If Mr. Garcia is suggesting that the Veterans Court
denied him the opportunity to seek en banc review, that is
incorrect: the assigned judge gave Mr. Garcia ample oppor-
tunity to seek reconsideration of his decision, and Mr. Gar-
cia does not argue that he could not seek en banc review of
the panel’s decision adopting the single-judge decision
within the relevant time period. See, e.g., Appx7, Appx11.
Mr. Garcia also suggests that he was denied procedural
due process. See Appellant’s Informal Br. 1–2. But that
argument is both unsupported and undeveloped, so we can-
not evaluate it and must deem it waived. See, e.g.,
SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312,
1320 (Fed. Cir. 2006).
Mr. Garcia’s appeal does not raise issues of law, so it is
outside our jurisdiction.
CONCLUSION
We have considered Mr. Garcia’s other arguments and
find them unpersuasive. We dismiss Mr. Garcia’s appeal
for lack of jurisdiction.
DISMISSED
COSTS
No costs.
