Fermina Fernandez Ancheta, Petitioner, v. Secretary, Department of Veterans Affairs, Respondent, 960 F.2d 154 (Fed. Cir. 1992)

The Secretary of the Department of Veterans Affairs moves to dismiss Fermina Fernandez Ancheta's petition for review for lack of jurisdiction and to waive the requirement for filing a certified list. Ancheta has not filed a response.

In October of 1974, the Veterans Administration (VA) determined that Ancheta had knowingly and deliberately presented false and fraudulent evidence to the VA to support a claim for death benefits. Ancheta sought to reopen the claim in 1988, and on December 5, 1990, the Board of Veterans Appeals determined that Ancheta had not established a new factual basis warranting revocation of forfeiture. The Board's decision informed Ancheta that she could appeal the decision to the Court of Veterans Appeals within 120 days. Ancheta did not appeal the Board's decision to the veterans court; rather, well after the 120-day deadline, she petitioned this court for review.

This court does not have jurisdiction to review Ancheta's petition. Pursuant to the Veterans' Judicial Review Act of 1988, this court may review decisions of the Court of Veterans Appeals, 38 U.S.C. § 7292 (formerly § 4092), and may review certain actions of the Secretary, 38 U.S.C. § 502 (formerly § 223(c)). With regard to the latter, judicial review is limited to the Secretary's actions concerning the promulgation and publication of agency rules and regulations. The statute does not confer jurisdiction to directly review a petitioner's challenge to the Board's application of the law to the facts of his or her particular claim. Hilario v. Secretary, Dep't of Veterans Affairs, 937 F.2d 586 (Fed. Cir. 1991).

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 moot.