956 F.2d 1171: Luisa O. Valenzuela, Petitioner, v. Secretary, Department of Veterans Affairs, Respondent

ORDER

The Secretary of the Department of Veterans Affairs moves to dismiss Luisa O. Valenzuela's petition for review. Valenzuela has not filed a response.

By way of background, Valenzuela sought death benefits as the surviving spouse of Juan A. Valenzuela who died in May 1946 while serving in the Philippine Commonwealth Army. In 1949, the regional office of the Veterans Administration (VA) granted her death benefits determining that Juan Valenzuela's death was service-connected and that his military service constituted service in the United States Armed Forces. Two years later, the VA terminated Valenzuela's death benefits based on the Department of the Army's determination that her deceased husband had possessed "no recognized guerrilla service, nor any service which could be considered as 'service' in the Armed Forces of the United States." Valenzuela never perfected a formal appeal of the Regional Office's benefit termination to the Board of Veterans Appeals.

Pursuant to the statutory framework governing our judicial review in veterans cases, a petitioner may (1) seek review of a final decision of the Court of Veterans Appeals or (2) seek review of an action of the Secretary that allegedly violates the publication or notice and comment requirements of the Administrative Procedure Act. 38 U.S.C. § 4092 (a) and (c), redesignated as § 7092(a) and (c); 38 U.S.C. § 223 (c), redesignated as § 502. Valenzuela is clearly not petitioning for review of a final decision of the Court of Veterans Appeals. Therefore, we consider whether Valenzuela is seeking review of an action of the Secretary concerning rulemaking.

Section 223(c) of title 38 makes an action of the Secretary described in 5 U.S.C. § 552(a)(1) or § 553 subject to direct judicial review by this court. See 5 U.S.C. § 552(a)(1) (setting forth which agency matters are subject to publication requirements); 5 U.S.C. § 553 (setting forth the notice and comment requirements for agency rulemaking). Adjudications, which are governed by 5 U.S.C. § 554, are not covered by the judicial review provisions of § 223(c). Hilario v. Secretary, Dep't of Veterans Affairs, 937 F.2d 586, 589 (Fed.Cir.1991).

Valenzuela seeks review of the VA's decision terminating her benefits. Valenzuela's argues that the Army erred in determining that her spouse had no service that could be recognized as "service" for the United States Armed Forces. However, Valenzuela never alleges a violation of the publication or notice and comment rulemaking requirements of the APA.*

Pro se petitioners "are not required to file legally impeccable submissions to proceed on appeal." Hilario, 937 F.2d at 589. However, Valenzuela must demonstrate that this court has jurisdiction over her case. Valenzuela has not made such a showing.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion to dismiss is granted.

(2) The Secretary's motion to suspend the filing of the certified list is dismissed as moot.