Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report since our last update. With respect to petitions, two new petitions were filed in a veterans case and a pro se case. Additionally, a waiver of right to respond was filed in a pro se case, and a reply brief was filed in a veterans case. Here are the details.

Granted Cases

There is no new activity to report.


New Petitions

Two new petitions were filed with the Court.

In Wright v. McDonough, a veterans case, the Court was asked to review the following question:

  • “Whether an aggrieved veteran’s right to judicial review of the Article I veteran-benefit administrative process, pursuant to the first sentence of 38 U.S.C. § 7292(d)(1) in the Court of Appeals for the Federal Circuit as the Article III court of first instance, is independent of review of decisions issued within that Article I process.”

In Akerman v. Merit Systems Protection Board, a pro se petitioner asked the Court to review the following questions:

  1. “Jurisdiction Over Habeas Corpus Decisions from the Federal Circuit: Does jurisdiction over habeas corpus decisions originating within the administrative state, particularly those adjudicated by the Federal Circuit, reside under federal authority pursuant to 28 U.S.C. § 1254(1), or state authority as per 28 U.S.C. § 1257(a)?”
  2. “Implications of Respondent Designation in Habeas Corpus Cases: Given the stipulations of 28 U.S.C. § 2254 on the importance of correctly naming respondents in habeas corpus cases, what are the jurisdictional and procedural implications of designating only the Merit Systems Protection Board as the respondent in cases involving military contexts and issues of federal and judicial immunity?”
  3. “Constitutional Mandate for Habeas Corpus Challenges: Is it incumbent upon a judicial body, under the Constitution, to permit challenges to ‘custody under or by the color of the authority of the United States, or committed for trial before some court thereof,’ through habeas corpus petitions?”
  4. “Spoliation in the Context of Interlocutory Appeal and the Brady Rule: Within the realm of federal administrative law, specifically concerning quasi-judicial bodies like the Merit Systems Protection Board, what are the legal implications of spoliation of evidence in relation to interlocutory appeals and the obligations of disclosure as mandated by the Brady rule?”

Waiver of Right to Respond

Verifone Systems, Inc. waived its right to respond to the petition in Ottah v. Verifone System Inc., a pro se case. 

New Reply

In Forsythe v. McDonough, a veterans case, Forsythe filed his reply brief. The petition presented the following questions:

  1. “Whether the Federal Circuit misinterpreted 38 U.S.C. § 5103(a)(1) to allow VA to issue evidentiary notice only before receiving a veteran’s claim, even though the statute requires notice that accounts for evidence ‘not previously provided to the Secretary that is necessary to substantiate the claim.’”
  2. “Whether the Federal Circuit violated the longstanding doctrine of Accardi v. Shaughnessy, 347 U.S. 260 (1954), by permitting VA to violate its own regulation on the ground that the agency’s noncompliance cannot be ‘prejudicial’ to veterans.”

In its brief, the government argued “[n]othing in 38 U.S.C. [§] 5103(a) precluded the VA from providing the required notice before rather than after the agency received petitioner’s application.” Looking to “Section 5103(a)(1)’s drafting history,” the government highlighted how Congress “removed the introductory phrase ‘[u]pon receipt of a complete or substantially complete application’ and” included “that the notice should be made ‘by the most effective means available.’” Moreover, according to the government, the Federal Circuit correctly “held that, even if the VA’s regulation required petitioner’s sequencing, any error in providing the notice too early was harmless.”

In its reply brief, Forsythe now asserts “[t]he government . . . privileges unreliable legislative history over clear statutory text,” “offer[ing] a novel argument to avoid that statutory text,” but the argument “is flawed on its face.” According to Forsythe, the government argues “the [agency’s] violation [of its own regulation] can never be harmful,” which Forsythe contends “creates dangerous precedent allowing agencies to change the rules without engaging in notice-and-comment rulemaking.” Furthermore, Forsythe maintains, “[r]egardless of the statutory text, it is undisputed that VA’s own regulation requires the agency to provide notice ‘when VA receives a complete or substantially complete initial or supplemental claim.’”