The Supreme Court issued its opinion today in George v. McDonough. In a six to three decision, the Court affirmed the Federal Circuit’s ruling, finding that “[t]he invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error.” Justice Barrett authored the Court’s majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, as did Justice Gorsuch, who was joined by Justice Breyer and in part by Justice Sotomayor. Here is our summary of the Court’s opinions.
Justice Barrett’s Majority Opinion
Justice Barrett’s majority opinion began by identifying the central question presented in this case: whether a veteran may seek collateral review on the basis of “clear and unmistakable error” of a Department of Veterans Affairs (VA) decision that relied on an agency interpretation later deemed contrary to law. To begin her analysis, Justice Barrett described the process of applying for disability benefits and appealing an unfavorable benefits decision. While VA decisions usually become final after the direct appeal process, Justice Barrett noted that a veteran may challenge a final benefits decision “on grounds of ‘clear and unmistakable error.’” The opinion then went on to explain the history of this form of collateral review, before the opinion shifted to the facts of the case.
The opinion explained how, in 1975, VA denied George’s claim for disability benefits based on schizophrenia “after concluding that his condition pre-dated his military service and was not aggravated by it.” That benefits decision was affirmed on appeal. Then the majority explained:
In 2014, George asked the Board [of Veterans’ Appeals] to revise that final decision on grounds of “clear and unmistakable error.” . . . In particular, he claimed that the Board erred by applying a later invalidated regulation to deny his claim for benefits without holding the VA to its full burden of proof to rebut the statutory presumption of sound condition.
The opinion, however, noted that the Board denied George’s claim for collateral relief and the Veterans Court and Federal Circuit affirmed, “concluding that the application of a later invalidated regulation does not fall into the narrow category of ‘clear and unmistakable error’ permitting revision of a final decision.”
Justice Barrett began her analysis by examining the meaning of “clear and unmistakeable error” as employed in the statute. She noted that, while the statute itself “does not identify the specific ways in which this category is narrower than garden-variety ‘error,’ . . . a robust regulatory backdrop fills in the details.”
[T]he history reveals that this category of error does not encompass a subsequent “change in law . . . or a change in interpretation of law.” . . . During the many years when clear and unmistakable error was purely a creature of regulation, the governing statutes generally did not allow “[n]ew or recently developed facts or changes in the law” to “provide a basis for revising a finally decided case.”
The opinion then went on to explain how “[t]he invalidation of a prior regulation constitutes a ‘change in interpretation of law’ under historical agency practice.” Thus, the opinion maintained, “the correct application of a binding regulation does not constitute ‘clear and unmistakable error’ at the time a decision is rendered, even if that regulation is subsequently invalidated.”
Addressing George’s arguments, Justice Barrett first rejected George’s contention that “VA has ‘distorted’ its own history by glossing over a handful of ‘pre-legislation Veterans Court opinions’ that he claims ‘point in [his] direction.'” The majority noted how the one case that resembles George’s “remains an outlier that ‘no court has cited’ on this point ‘[i]n the 30 years since,’ as the Government notes without rebuttal.”
Further, the opinion addressed George’s argument that it was “wrong to describe a later decision invalidating a regulation as a ‘change in interpretation of law.'” The Court rejected this argument, writing that, “[a]s the Federal Circuit has explained, a lack of ‘accuracy’ in a prior statutory interpretation ‘does not negate the fact that’ it is an ‘initial interpretation.'”
The majority also maintained that the new interpretation of the statute is inapplicable to George’s case. Justice Barrett emphasized why:
VA’s longstanding approach is consistent with the general rule that “[t]he new interpretation of a statute can only retroactively [a]ffect decisions still open on direct review.” . . . That limitation serves important interests in finality, preventing narrow avenues for collateral review from ballooning into “substitute[s] for ordinary error correction through appeal.”
Justice Barrett also addressed George’s argument that the Board’s 1977 decision was a “clear and unmistakable error” under the plain meaning of the phrase. The majority refuted this argument, adopting the “‘prevailing understanding’ of this term of art ‘under the law that Congress looked to when codifying’ it.”
In summing up the majority opinion, Justice Barrett wrote:
The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error.
Justice Sotomayor’s Dissent
In her dissenting opinion, Justice Sotomayor discussed her view that the Board “clearly and unmistakably violated a statutory command” when it denied George’s application for disability benefits. Justice Sotomayor explained that “the pre-existing doctrine Congress incorporated in 1997 was unsettled as to whether judicial invalidation of a regulation that squarely contravened an unambiguous statute constituted a ‘change in interpretation of law.'” Accordingly, Justice Sotomayor maintained, when “[c]onfronted with an ambiguity in the scheme Congress codified into statute, I would apply the venerable ‘canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.'” In concluding her dissent, Justice Sotomayor wrote: “I would hold that George may seek review based on clear and unmistakable error.”
Justice Gorsuch’s Dissent
Justice Gorsuch began his dissent by explaining his view of the facts. He then stated that, in denying George’s application for benefits, VA “neglected to apply [38 U.S.C.] § 1111’s statutory presumption of soundness that attached to his entry into military service.” Moreover, according to Justice Gorsuch, VA “failed to follow § 1111’s command requiring the agency to prove that Mr. George’s condition ‘was not aggravated by such service.’” Instead, he explained, VA “relied on a very different set of rules of its own creation,” only requiring proof “that Mr. George suffered ‘an injury or disease [that] existed prior [to service]’” to deny his application.
In greater detail, Justice Gorsuch first discussed how “the regulations the agency relied on to reject Mr. George’s initial claim impermissibly failed to implement [the] statutory commands” of § 1111, which required the government to prove by clear and convincing evidence that a veteran’s condition was not aggravated by their service. According to Justice Gorsuch, “[r]egardless whether [George] can prevail under the test Congress actually prescribed in § 1111, he is at least entitled to a hearing consistent with the law’s terms.” Further, he maintained, “the agency’s ruling in this case, depending as it did on a statutorily impermissible regulation, was infected by ‘clear and unmistakable error’ that Mr. George is entitled to have corrected ‘at any time.'”
His dissent further argued that the regulations that the agency relied on in denying George’s claim conflicted with Congress’ express directions in § 1111. Moreover, Justice Gorsuch explained that the Court’s holding in in a prior case did not represent a change in law. Rather, according to Justice Gorsuch, “when a court interprets a statute and declares contrary regulations invalid, it cannot and does not change the law; it can only explain what the law has ‘always meant.'”
Justice Gorsuch also refuted the Court’s conclusion that “the phrase ‘clear and unmistakable error’ is a term of art” that does not extend to errors based on “change in law or . . . a change in interpretation of law.” Justice Gorsuch maintained that “Congress did not codify the part of the old agency regulation on which the Court relies,” as nothing in the statutory text “says that errors resulting from ‘changes in law’ or ‘changes in interpretation’ are immune from correction.”
In concluding his dissent, Justice Gorsuch emphasized how “the Veterans Court has affirmed less than 10 percent of the agency’s decisions . . . [and] [i]nternal audits have revealed massive numbers of improperly denied claims.” Accordingly, he wrote: “I would not add to these problems by shielding the Department from the inconvenience of having to answer for its own clear and unmistakable errors.”