Hooks v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: July 12, 2024
• Docket: 23-1301
• Status: Unpublished

Opinion

Case: 23-1301 Document: 35 Page: 1 Filed: 07/12/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JAMES M. HOOKS, Claimant-Appellant

v.

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

2023-1301 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 21-731, Judge William S. Green- berg. ______________________

Decided: July 12, 2024 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by KENT A. EILER.

MEREDYTH COHEN HAVASY, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY; AMANDA BLACKMON, Case: 23-1301 Document: 35 Page: 2 Filed: 07/12/2024

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

Before CHEN, STOLL, and CUNNINGHAM, Circuit Judges. CHEN, Circuit Judge. James M. Hooks appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the decision of the Board of Veterans’ Ap- peals (Board) finding no clear and unmistakable error in a 2002 administrative decision by the Department of Veter- ans Affairs (VA). Hooks v. McDonough, No. 21-0731, 2022 WL 4285679 (Vet. App. Sept. 16, 2022). The VA found that Mr. Hooks’s discharge under other than honorable condi- tions was “considered to have been issued under dishonor- able conditions” due to Mr. Hooks’s “willful and persistent misconduct.” See 38 C.F.R. § 3.12(d), (d)(4) (2002). Mr. Hooks makes the following arguments to this court: (1) section 3.12(d)(4) has no statutory predicate; (2) the plain meaning of “willful and persistent conduct” is ambiguous; and (3) the Veterans Court erred by relying upon a misin- terpretation of the term “persistent,” as used in section 3.12(d)(4) as codified at the time of the VA’s decision. Be- cause Mr. Hooks did not present these arguments to either the Board or the Veterans Court, Mr. Hooks may not do so here. See Gurley v. McDonough, 23 F.4th 1353, 1357 (Fed. Cir. 2022) (arguments not raised to the Veterans Court are forfeited). Accordingly, we affirm the decision of the Veterans Court. AFFIRMED COSTS No costs.