As we previously reported, two weeks ago today the Supreme Court granted a petition for certiorari in a veterans case decided by the Federal Circuit, George v. McDonough. The petitioner asked the Court to clarify the scope of clear and unmistakeable error with regard to cases involving veterans whose benefits have been wrongly withheld based on an incorrect interpretation of a statute. Notably, this is the only case this term in which the Supreme Court has decided to hear arguments in a case decided by the Federal Circuit. Here are more details about the case.
This case involves a challenge to the denial of disability benefits. George, however, sought to overturn the denial of benefits decades after the denial, following a holding in an unrelated case overturning a statutory interpretation by Veterans Affairs and “in light of [the] clear and unmistakable legal error that infected VA’s decision in his case.” The Federal Circuit held that, in denying the claim, the Board of Veterans Appeals had applied the interpretation in effect at that time. According to the Federal Circuit, moreover, the subsequent change in the interpretation of the statute did not amount to a misapplication of the law as it was understood at the time, which the court held is necessary to constitute a clear and unmistakeable error and overturn VA’s decision.
At the Supreme Court, George filed a petition presenting the following question:
“When the Department of Veterans Affairs (VA) denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, is that the kind of ‘clear and unmistakable error’ that the veteran may invoke to challenge VA’s decision?”
In its petition, George argued that the Federal Circuit “imposed an atextual limitation on the scope of [clear and unmistakeable error claims].” Absent Supreme Court intervention, moreover, George argued the Federal Circuit’s holding will “deprive untold numbers of veterans of the benefits that they undisputedly should have received under the plain text of the law.”
Two amicus briefs filed in support of the petition raised similar concerns. Jeremy C. Doerre, for example, filed an amicus brief noting the qualification in 38 C.F.R. § 20.1403 that “[c]lear and unmistakable error does not include the otherwise correct application of a statute . . . where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute.” According to Doerre, this language “cannot reasonably be construed to cover the situation where a plainly erroneous statutory interpretation represented clear and unmistakable error even before any ‘change in the interpretation of the statute.’”
The Secretary of Veterans Affairs filed a brief in opposition expressing the view that, contrary to the petitioner’s argument, this case would in fact be a poor vehicle to resolve questions about clear and unmistakeable error in the context of veterans’ claims. According to the Secretary, the clear and unmistakeable error standard requires showing that “the result would have been manifestly different but for the error.” The Secretary argued that the petitioner here cannot make that showing and did not attempt to do so in the courts below and therefore the petition should have been denied. The Secretary characterized the petition as contending “that the Board’s 1977 disability-benefits decision in his case constitutes ‘clear and unmistakable error’ because the Federal Circuit later held that a regulation in existence at the time of the decision reflected an impermissible interpretation of the governing statute.” According to the Secretary, the Federal Circuit “correctly rejected that contention, and its decision does not conflict with any decision of [the Supreme] Court or another court of appeals.”
The petitioner’s reply noted it is undisputed that “the Federal Circuit’s holding will prevent disabled veterans from recovering potentially life-changing compensation in numerous cases where the statute requires it.” Further, the petitioner argued, this case is a proper vehicle for the Court to clarify the scope of clear and unmistakable error.
As mentioned, the Supreme Court granted review to address the question presented.
We will continue to monitor this case and report on developments.