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

14 F.3d 612
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Nicanor P. SAMUDIO, Petitioner,
v.
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Respondent.

No. 91-7088.

United States Court of Appeals, Federal Circuit.

Oct. 14, 1993.

Before NEWMAN, ARCHER, and MAYER, Circuit Judges.

ORDER

ARCHER, Circuit Judge.

1

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.

2

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. Sec. 502 (action for judicial review of a rule or regulation of the Department of Veterans Affairs).

3

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.

4

Upon consideration thereof,

IT IS ORDERED THAT:

5

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

6

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

7

(3) Each side shall bear its own costs.