On October 3, 2016, the United States Supreme Court (Court) denied the petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Federal Circuit held in Scott that the United States Court of Appeals for Veterans Claims (Veterans Court) could impose an issue-exhaustion requirement for procedural issues because both 38 C.F.R. § 20.202 and 38 U.S.C. § 7252 require it.
The petition was filed on behalf of Mr. Scott by Evan A. Young of Baker Botts L.L.P. The question presented to the Court was whether it was error, and contrary to Sims v. Apfel, 530 U.S. 103 (2000), for the Federal Circuit to allow the Veterans Court to refuse to consider the veteran’s argument that he was wrongly deprived of a hearing because he did not name the precise issue before the Board of Veterans’ Appeals.
NOVA filed an amicus brief, as prepared by Daniel Smith, Bosley and Bratch, and Kenneth Carpenter, Carpenter Chartered. NOVA argued that 38 C.F.R. § 202 does not require issue exhaustion in the veterans’ benefits context. Furthermore, NOVA argued the Federal Circuit ignored the intent of Congress in creating the veterans’ benefits system and the Court’s ruling in Henderson ex rel. Henderson v. Shinseki, 462 U.S. 428 (2011). Additional amici briefs were filed by the New York State Bar Association, the Federal Circuit Bar Association, Disabled American Veterans, Paralyzed Veterans of America, and National Veterans Legal Services Program.
The Court denied Mr. Scott’s petition on October 3, 2016. You can review the writ petition and amici briefs here: http://www.scotusblog.com/case-files/cases/scott-v-mcdonald/.