Last week, the Supreme Court heard oral argument in Bufkin v. McDonough, a veterans case. In it, the Supreme Court is considering whether the Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1),” which directs that court to “take due account” of the application of that rule. This is our argument recap.
Melanie Bostwick argued on behalf of Bufkin. According to Bostwick, the Court of Appeals for Veterans Claims–referred to by the parties as the Veterans Court–early in its history “recognized . . . the benefit-of-the-doubt principle and the difference between reviewing findings of fact for clear error and reviewing VA’s application of the approximate balance standard of proof.” Then, Bostwick continued, when the Veterans Court “strayed from that understanding,” Congress amended 38 U.S.C. § 7261 and “directed the Veterans Court to take due account of the Secretary’s application of . . . [38 U.S.C. §] 5107(b), the benefit-of-the-doubt statute, and that new statutory command.” According to Bostwick, under the government’s view, “the Veterans Court does not even look at the agency’s benefit-of-the-doubt rulings” if “no factual finding specifically challenged by the veteran is infected with clear error.” Thus, Bostwick maintained, when the Veterans Court and Federal Circuit agreed with the government’s view, they “render[ed] Congress’s statutory amendment entirely superfluous.”
Justice Thomas asked how Bufkin’s approach “would work in comparison to the government’s approach.” In response, Bostwick argued that, when the Veterans Court makes determinations under § 7261(a), if the Veterans Court would “reverse or vacate under . . . [§ 7261](b)(2),” it has to check that “any error . . . was prejudicial.” If, Bostwick continued, the Veterans Court would affirm under § 7261(b)(1), it has to “check and make sure,” the decisions it would affirm “complied with . . . § 5107(b),” which is the benefit-of-the-doubt statute. Bostwick asserted that the benefit-of-the-doubt statute had “two mandatory requirements”: first, the VA must consider “all medical and lay evidence and information relevant to . . . the issue,” and second, if there was “an approximate balance of positive and negative evidence on any issue, . . . the veteran receive[d] the benefit of the doubt.” Bostwick asserted that this was “something the Veterans Court ha[d] to do in every case,” was not “bound by party presentation,” and was a “non-deferential review.”
Justice Jackson asked what it was that the Veterans Court “was supposed to be doing . . . all along.” Bostwick asserted that, “if a veteran presented an argument that the Secretary had not complied with,” then the Veterans Court was supposed to follow the two requirements of § 5107(b) and “give benefit of the doubt to the claimant.” Instead, Bostwick argued, the Veterans Court “was only looking at whether there had been a clear error of fact.”
Justice Kavanaugh then asked, if Congress “thought that the standard of review was wrong,” whether “instead of saying take due account,” the statute “would have said review de novo.” In response, Bostwick contended that Congress “took a part of the statute that was already there,” because § 7261(b)(2) “already said take due account of the role of prejudicial error.” Bostwick further asserted that Congress also did not “use ‘clear error’ either,” and they did not include it under § 7261(a)(4), the “standard of review for facts,” so there is a “clear recognition that this is . . . at least not a purely factual question.”
Justice Gorsuch asked whether Bufkin was asking for § 7261(b)(1) “to be interpreted in the same manner” as § 7261(b)(2), “a harmless error review.” Bostwick agreed, arguing that “they are subject to the same language,” including “comprehensive review” and “take due account.”
In response to a question from Chief Justice Roberts, Bostwick argued that, whatever the “precise level of deference or scrutiny . . . appropriate to take due account of the Secretary’s application of this statute,” “it has to be some meaningful review.” Bostwick further asserted that, if the Veterans Court “meaningfully look[s] at this benefit-of-the-doubt rule,” there will be “developed law” on what “approximate balance” means, which will provide uniformity.
Sopan Joshi argued on the behalf of the government. According to Joshi, “the Veterans Court reviews legal aspects of the Secretary’s application of [§] 5107(b) de novo and factual aspects deferentially, here, for clear error.” Joshi clarified that the “Secretary’s determination that all the evidence in the record on a particular issue is or is not an approximate balance is itself factual or predominantly factual and so should be reviewed for clear error.” Joshi argued that, while Bufkin claims that § 7261(b)(1) is left “with no additional work to do,” Congress “took what was implicit or just generally covered in [§ 7261](a) and made it explicit and specific.” Joshi further asserted that Bufkin’s interpretation that “the approximate balance finding should be reviewed de novo . . . creat[ed] needless contradictions in the text” and is “inconsistent with the way other factual issues under [§ 7261](b)(1) are reviewed.
Justice Gorsuch asked what § 7261(b) does “if [§ 7261](a) does all the work.” Joshi contended that § 7261(b) is “an exclamation point like the Tenth Amendment.” Joshi further asserted that “what [§ 7261(b)] did was remind the Veterans Court of its preexisting obligation.”
Justice Jackson asked whether, when Congress amended § 7261, they were saying that what the Veterans Court needed to do was “make sure that the agency is actually applying this consistent with the law,” making it “a legal question” of the “sufficiency of the evidence.” Joshi responded by arguing it was “a deferential standard.” Joshi suggested this “is a classic mixed question of law,” which requires asking whether “that mixed question entail[s] primarily factual work or primarily legal work.” Joshi asserted that the correct answer to this question is “primarily factual.”
Justice Kagan then asked “how the reviewing court is supposed to take into account the benefit-of-the-doubt rule in conducting its review.” Joshi argued that the first question is whether “the Board actually t[ook] into account all the evidence,” and, if not, it is “a legal error” that is reversed. Then, Joshi continued, if all the evidence was taken into account, “based on all of the evidence in the record,” the next question is whether “the Board’s conclusion that the claimant did not reach 48 or 49 [percent]” is clearly erroneous. Joshi asserted the Veterans Court asks the same question, just substituting the percent standard for a lower percent if needed.
In her rebuttal, Bostwick asserted that § 7261(b)(1) “is not an exclamation point,” but an “entirely new sentence placed in an entirely new statutory sub-provision.” Bostwick further argued that § 7261(b)(2) “has never been given the effect that it was intended.” According to Bostwick, when “try[ing] to review the approximate balance judgement for clear error, the two things are just incompatible.” Bostwick maintained that, “if there are two permissible views of the evidence, it cannot be clear error.” She suggested that is “the opposite of what the benefit-of-the-doubt rule is supposed to achieve.” According to Bostwick, “the veteran gets the benefit of the doubt” “if there are two permissible views of the evidence.”
We’ll report more when the Court decides the case.