Nicanor P. Samudio, Petitioner, v. Secretary, Department of Veterans Affairs, Respondent, 14 F.3d 612 (Fed. Cir. 1993)

The Secretary of the Department of Veterans Affairs moves to waive Fed. Cir. R. 27(e) and to dismiss Nicanor P. Samudio's petition for review. Samudio has not filed a response.

Samudio submits a petition for review relating to benefits denied by the Veterans Administration or the Department of Veterans Affairs. This matter has not been adjudicated by the Court of Veterans Appeals. Rather, Samudio apparently is alleging that this court has jurisdiction to review this matter pursuant to 38 U.S.C. § 502 (action for judicial review of a rule or regulation of the Department of Veterans Affairs).

Fed. Cir. R. 47.12 requires that a party file a petition for review of a VA rule or regulation in this court within 60 days of issuance or amendment of the rule or regulation at issue. Here, Samudio challenges the application of an unspecified regulation (possibly 38 C.F.R. Sec. 3.203, last amended in 1981) and a 1975 regulation (38 C.F.R. Sec. 4.3) to his benefits request. Samudio did not petition for review within 60 days of issuance or amendment of either regulation. Hence, the court does not have jurisdiction over this matter. Samudio may, of course, pursue benefits through the Department of Veterans Affairs and, if denied, appeal to the Court of Veterans Appeals.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The Secretary's motion to waive Fed. Cir. R. 27(e) is granted.

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

(3) Each side shall bear its own costs.