Willie A. Swann, Individually, and As Representative Ofunnamed Veterans, Spouses and Children of Unnamed Veteranswho Have Claims Against the Department of Veterans Affairsfor Benefits Requiring an Adjudicatory Proceeding, Petitioner, v. Secretary, Department of Veterans Affairs, Respondent, 949 F.2d 402 (Fed. Cir. 1991)

Annotate this Case
US Court of Appeals for the Federal Circuit - 949 F.2d 402 (Fed. Cir. 1991) Sept. 18, 1991

Before ARCHER, Circuit Judge, FRIEDMAN, Senior Circuit Judge and PLAGER, Circuit Judge.

ORDER

ARCHER, Circuit Judge.


At the direction of the court, the parties address the issue of whether dismissal of Willie A. Swann's petition for review is appropriate.

On December 13, 1990, the Board of Veterans Appeals issued a decision denying Swann's claim for service connected disability benefits. On January 30, 1991, Swann noticed an appeal to the Court of Veterans Appeals. On February 11, 1991, Swann petitioned this court for review of matters connected to his case before the Veterans Court.

We dismiss. Swann cannot pursue a "direct review" case pursuant to 38 U.S.C. § 223(c) while at the same time pursue an appeal to the Veterans Court. Indeed, § 223(c) provides that while direct review of certain issues is available in this court:

if such review is sought in connection with an appeal brought under the provisions of chapter 72 of this title [concerning the Veterans Court], the provisions of that chapter shall apply rather than the provisions of chapter 7 of title 5.

Accordingly,

IT IS ORDERED THAT:

Swann's appeal is dismissed.