William D. Cowan v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM D. COWAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2227
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6227, Judge Joseph L. Falvey,
Jr, Judge Joseph L. Toth, Judge Michael P. Allen.
______________________
Decided: April 8, 2024
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ERIC P. BRUSKIN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by SOSUN BAE , BRIAN M. BOYNTON, ELIZABETH MARIE
HOSFORD, P ATRICIA M. MCC ARTHY ; BRIAN D. G RIFFIN,
Case: 22-2227 Document: 43 Page: 1 Filed: 04/08/2024

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COWAN v. MCDONOUGH 2
ANDREW J. STEINBERG, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before D YK, MAYER , and REYNA, Circuit Judges.
REYNA, Circuit Judge.
William D. Cowan appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), which remanded in part Mr. Cowan’s case to the
Board of Veterans’ Appeals for further consideration. See
Cowan v. McDonough, 35 Vet. App. 232, 249 (2022). We
generally decline to review a decision by the Veterans
Court that remands a case because such a decision is not a
final judgment. Williams v. Principi, 275 F.3d 1361, 1364
(Fed. Cir. 2002). We deviate from this rule when the deci-
sion at issue meets three narrow requirements. Id. The
first requirement is a “clear and final decision [from the
Veterans Court] of a legal issue that [] is separate from the
remand proceedings.” Id. (internal footnote omitted).
Here, Mr. Cowan appeals the portion of the Veterans
Court’s decision concerning the sufficiency of notice to a
veteran required under 38 U.S.C. § 5104. Appellant Br.
14–17. However, the Veterans Court remanded to the
Board to further consider whether the Department of Vet-
erans Affairs provided sufficient notice to Mr. Cowan under
this statute. Cowan, 35 Vet. App. at 244, 249. Thus, be-
cause the merits of Mr. Cowan’s appeal before this court
are intertwined with the issue currently pending on re-
mand before the Board, Mr. Cowan fails to meet the first
requirement under Williams. Mr. Cowan’s case also fails
to meet the third requirement of Williams, that there is a
substantial risk that the Veterans Court’s decision would
not survive a remand, i.e., that the remand proceeding may
moot the issue. Williams, 275 F.3d at 1364. The same is-
sue will be presented after the remand if Mr. Cowan is un-
successful. The Veterans Court’s decision is thus not
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COWAN v. MCDONOUGH 3
sufficiently final for purposes of our review. We dismiss
the appeal.
DISMISSED
COSTS
No costs.
Case: 22-2227 Document: 43 Page: 3 Filed: 04/08/2024

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