Davis v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: February 14, 2023
• Docket: 22-1247
• Status: Unpublished

Opinion

Case: 22-1247 Document: 44 Page: 1 Filed: 02/14/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

STANLEY L. DAVIS, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2022-1247 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-4371, Chief Judge Margaret C. Bartley, Judge Joseph L. Falvey, Jr., Judge Joseph L. Toth. ______________________

Decided: February 14, 2023 ______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

ASHLEY AKERS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Case: 22-1247 Document: 44 Page: 2 Filed: 02/14/2023

Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges. STOLL, Circuit Judge. Stanley L. Davis appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans Appeals’ (Board) denial of an earlier effective date for Mr. Davis’s service- connected disability under 38 C.F.R. § 3.156(b) and vacat- ing and remanding the Board’s denial under § 3.156(c). Be- cause the Veterans Court’s decision is not final, we dismiss. Remand orders from the Veterans Court are not final judgments. See Williams v. Principi, 275 F.3d 1361, 1363–64 (Fed. Cir. 2002). We generally decline to review a non-final order of the Veterans Court, and we deviate from this rule on finality only when a case meets each require- ment of Williams’s three-pronged test. Id. At issue here is Williams’s third prong, which requires “a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.” Id. This prong is not met if (1) there is a single claim or (2) there are sepa- rable claims that are “inextricably intertwined because both claim compensation for the same disability.” Joyce v. Nicholson, 443 F.3d 845, 850 (Fed. Cir. 2006). Here, re- gardless of whether we view Mr. Davis’s claim under § 3.156(b) and (c) as a single claim or as separable claims “inextricably intertwined” because they claim compensa- tion for the same disability, this case does not meet Wil- liams’s third prong. We thus dismiss for lack of jurisdiction. DISMISSED COSTS No costs.