GEORGE v. MCDONOUGH, SECRETARY OF VETERANS AFFAIRS
No. 21-234
SUPREME COURT OF THE UNITED STATES
June 15, 2022
596 U.S. ___ (2022)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
OCTOBER TERM, 2021
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GEORGE v. MCDONOUGH, SECRETARY OF VETERANS AFFAIRS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 21-234. Argued April 19, 2022—Decided June 15, 2022
When petitioner Kevin George joined the Marine Corps in 1975, he did not disclose his history of schizophrenic episodes, and a medical examination noted no mental disorders. After George suffered an episode during training, the Marines medically discharged him. George then applied to the Department of Veterans Affairs under
In 2014, George asked the Board to revise its final decision. When the VA denies a benefits claim, that decision generally becomes “final and conclusive and may not be reviewed by any other official or by any court” after the veteran exhausts the opportunity for direct appeal.
The Board denied George‘s claim for collateral relief, and the Veterans Court affirmed. The Federal Circuit аlso 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 under
Held: The invalidation of a VA regulation after a veteran‘s benefits decision becomes final cannot support a claim for collateral relief based on
(a) This case turns on the meaning of the 1997 statute subjecting a final veterans’ benefits decision to collateral review on grounds of “clear and unmistakable error.” 111 Stat. 2271 (
(b) In response, George argues that the VA has distorted the history of agency practice that the 1997 statute codified. But across a century of review for clear and unmistakablе error, George can muster only one uncertain outlier case sustaining a claim that arguably resembles his, which does not move the mountain of contrary regulatory authority. He alternatively argues that the VA is wrong to call a later decision invalidating a regulation a “change in interpretation of law.” But that is a perfectly natural use of language. George tries to bolster his position by invoking cases explaining that a judicial decision states what the statute “always meant,” Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n. 12 (1994), and an unauthorized regulation is a “““nullity,” Dixon v. United States, 381 U. S. 68, 74. But those general principles do not disturb the conclusion that the Board‘s application of a then-binding regulation is not the kind of “clear and unmistakable error” for which collateral relief is available under
George also leans on what he describes as the plain meaning of the words “clear and unmistakable error.” But as he concedes elsewhere, the real question is not what might be called clear and unmistakable error in the abstract, but what the prevailing understanding of this term of art was when Congress codified it. The fact that Congress did not expressly enact the specific regulatory principle barring collateral
991 F. 3d 1227, affirmed.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. GORSUCH, J., filed a dissenting opinion, in which BREYER, J., joined, аnd in which SOTOMAYOR, J., joined as to all but Part II–C.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–234
KEVIN R. GEORGE, PETITIONER v. DENIS R. MCDONOUGH, SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[June 15, 2022]
JUSTICE BARRETT delivered the opinion of the Court.
Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of “clear and unmistakablе error.” We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not.
I
A
“The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.” Shinseki v. Sanders, 556 U. S. 396, 400 (2009); see
A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA‘s Board of Veterans’ Appeals (Board).
After this direct appeal process, the benefits decision generally becomes “final and conclusive and may not be reviewed by any other official or by any court.”
B
Kevin George joined the Marine Corps in 1975 after experiencing multiple schizophrenic episodes. He did not initially disclose that history, and a medical examination noted no mental disorders at the time he entered service. But less than a week into training, George had another episode and was hospitalized. A few months later, the Navy‘s Central Physical Evaluation Board found that his schizophrenia made him unfit for duty and was not aggravated by service. App. to Brief for Petitioner 12a–15a. George was then medically discharged.
Later that year, George applied for veterans’ disability benefits based on his schizоphrenia. A VA regional office denied his claim after concluding that his condition predated his military service and was not aggravated by it. The Board agreed and denied George‘s appeal in 1977. In so ruling, neither the regional office nor the Board expressly discussed the VA‘s burden of proof under the presumption of sound condition.
The Board denied George‘s claim for collateral relief, and the Veterans Court affirmed. The Federal Circuit also 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 under
II
A
This case turns on the meaning of the 1997 statute subjecting a final veterans’ benefits decision to collateral review on grounds of “clear and unmistakable error.” 111 Stat. 2271 (
Fortunately, a robust regulatory backdrop fills in the details. Where Congress employs a term of art “““obviously transplanted from another legal source,“’ it “brings the old soil with it.““” Taggart v. Lorenzen, 587 U. S. ___, ___ (2019) (slip op., at 5). That principle applies here. In 1997, Congress used an unusual term that had a long regulatory history in this very context. It enacted no new “definition” or other provision indicating any departure from the “same meaning” that the VA had long applied. Hall v. Hall, 584 U. S. ___, ___ (2018) (slip op., at 13). We therefore agree with the Federal Circuit that Congress “codif[ied] and adopt[ed] the [clear-and-unmistakable-error] doctrine as it had developed under” prior agency practice. Cook v. Principi, 318 F. 3d 1334, 1344 (2002) (en banc). That longstanding VA practice reveals several respects in which the clear-and-unmistakable category is a “very specific and rare kind of error” narrower than error simpliciter.
Most important for present purposes, the history reveals
The invalidation of a prior regulation constitutes a “сhange in interpretation of law” under historical agency practice. Drawing on decades of history, the VA succinctly explained nearly 30 years ago that review for clear and unmistakable error provides “no authority . . . for retroactive
Defined by this regulatory history, the statutory term “clear and unmistakable error” does not encompass a claim like George‘s. When the Board decided George‘s appeal in 1977, it followed the then-applicable 1961 regulаtion, as it was statutorily obligated to do. See
B
1
George offers several responses. He generally concedes the premise that the 1997 statute codified the longstanding regulatory practice defining “clear and unmistakable еrror.” He takes issue primarily with the conclusion that this practice forbids his claim. In George‘s view, the VA has “distorted” its own history by glossing over a handful of “pre-legislation Veterans Court opinions” that he claims “point in [his] direction.” Brief for Petitioner 26, 41. But across a century of review for clear and unmistakable error, George can muster only one case sustaining a claim that arguably resembles his. See Look v. Derwinski, 2 Vet. App. 157 (1992) (approving collateral relief on two grounds, including a later invalidated regulation, without discussing the change-in-interpretation principle). And even that case is ambiguous, as portions of the opinion may instead “suggest that the [subsequent] invalidation of regulations does not have retroactive effect in ‘finally’ disallowed claims.” VA Op. 9–94, ¶5, p. 4 (emphasis added) (citing Look, 2 Vet. App., at 164). Regardless, the case remains an outlier that “no court has cited” on this point “[i]n the 30 years since,” as the Government notes without rebuttal from George. Brief for Respondent 38.
This is thin stuff. One uncertain outlier does not come
George alternatively argues that the VA erred in applying this principle to his situation. In his view, it is wrong to describe a later decision invalidating a regulation as a “change in interpretation of law.” But we think that is a perfectly natural way to characterize a decision announcing a new reading of a statute—much as the VA and Federal Circuit did in the decisions on which George now relies. VA Op. 3–2003, ¶¶3, 8, pp. 2, 5 (adopting a new “interpretation” to replace the prior “interpretation reflected in VA‘s regulations“); Wagner, 370 F. 3d, at 1092 (discussing that “change in agency interpretation“). We have occasionally used similar language ourselves. E.g., Gonzalez v. Crosby, 545 U. S. 524, 536–537 (2005) (referring to “[t]he change in the law worked by” our precedent “interpret[ing] the AEDPA statute of limitations“). As 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.” Jordan v. Nicholson, 401 F. 3d 1296, 1298 (2005). In short, a misinterpretation is still an interpretation, and a correction of that interpretation is a change. So the VA‘s application of the change-in-interpretation label to claims like George‘s hardly reflects an “atypical” use of language, despite his arguments to the contrary. Brief for Petitioner 18.
And while George suggests otherwise, there is nothing incongruous about a system in which this kind of error—the application of a since-rejected statutory interpretation—cannot be remedied after final judgment. On the contrary, and as the lower courts have explained, the 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.” Disabled American Veterans v. Gober, 234 F. 3d 682, 698 (CA Fed. 2001) (citing Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993)); see also Smith v. West, 11 Vet. App. 134, 138 (1998) (“‘New legal principles, even when applied retroactively, do not apply to cases already closed‘” (quoting Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 758 (1995); alteration omitted)). That limitation serves important interests in finality, preventing narrow avenues for collateral review from ballooning into “substitute[s] for ordinary error correction through appeal.” Harrington v. Richter, 562 U. S. 86, 102–103 (2011); see also United Student Aid
2
George also leans on what he describes as “the plain meaning of th[e] words” clear and unmistakable error. Reply Brief 2. As he puts it: “Looking at the 1977 Board‘s decision today, the legal error is clear. It is unmistakable.” Id., at 1. (This is the thrust of JUSTICE GORSUCH‘s position too. See post, at 3–5 (dissenting opinion).) We share the Government‘s doubt about how natural it is to say that the Board “commit[ted] ‘clear and unmistakable error’ by faithfully applying a VA regulation that was found to be invalid more than 25 years later.” Brief for Respondent 33. More fundamentally, though, this argument is inconsistent with George‘s well-taken concessions elsewhere thаt “the [clear-and-unmistakable-error] statutes track preexisting Veterans Court case law” and other agency practice defining a “deeply rooted” regulatory standard. Reply Brief 8; Brief for Petitioner 6. The real question is not what might be called clear and unmistakable error in the abstract, but what the “prevailing understanding” of this term of art
More modestly, George seeks to distinguish the statutory meaning from the prior practice on just one point. Because Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation, he insists that the principle did not carry over to the statute. But this argument, tоo, misses the mark. The point of the old-soil principle is that “when Congress employs a term of art,” that usage itself suffices to “““adop[t] the cluster of ideas that were attached to each borrowed word““” in the absence of indication to the contrary. FAA v. Cooper, 566 U. S. 284, 292 (2012). Here, the governing statute “is silent” on a host of matters ranging from the definition of clear and unmistakable error to “the specific procedures that govern a [collateral] claim.” Disabled American Veterans, 234 F. 3d, at 694, 696 (citing
*
*
*
The invalidation of a VA regulation after a veteran‘s benefits decision becomes final cannot support a claim for collаteral relief based on clear and unmistakable error. We affirm the judgment of the Court of Appeals.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 21–234
KEVIN R. GEORGE, PETITIONER v. DENIS R. MCDONOUGH, SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[June 15, 2022]
JUSTICE SOTOMAYOR, dissenting.
I join all but Part II–C of JUSTICE GORSUCH‘s dissent. The Board of Veterans’ Appeals (Board) clearly and unmistakably violated a statutory command in its decision denying petitioner Kevin George‘s application for service-related benefits. As JUSTICE GORSUCH explains, in the context of this specific statutory framework, the mere fact that the Board relied on a plainly invalid regulation does not shield its final decision from review based on clear and unmistakable error.1
The Court thinks otherwise. In support of its holding, the Court notes that Congress, when it enacted the clear-and-unmistakable-error statutes in 1997, codified a pre-existing regulatory doctrine under which clear and unmistakable error did not encompass a subsequent “change in interpretation of law.”
The Court disagrees. It holds that under the pre-existing doctrine, judicial invalidation of an unmistakably erroneous regulation was understood to constitute a “change in interpretation of law” for purposes of clear and unmistakable error. See ante, at 5–9. The Court‘s citations offer little support for this conclusion, however. In Berger v. Brown, 10 Vet. App. 166, 170 (1997), for example, the Court of Veterans Appeals (Veterans Court) stated that opinions from that body “that formulate new interpretations of the law . . . cannot be the basis of a valid [clear-and-unmistakable-error] claim.” But the Veterans Court emphasized that the decision under attack, unlike the Board‘s decision in George‘s case, had followed “a plausible interpretation of the law,” precluded by “nothing in the plain language of the statute,” and added that “[t]he statute was, and still is for that matter, susceptible of differing interpretations.” Ibid. Similarly, in Damrel v. Brown, 6 Vet. App. 242, 246 (1994), the relevant change in interpretation of law was a Veterans
Other authorities relied upon by the Court are equivocal. The VA opined in 1994 that invalidation of a regulation by the Veterans Court constituted a ““change in interpretation of law,” but it also admitted “that VA‘s historical approach has not been entirely consistent.” Op. Gen. Counsel Precedent 9–94, ¶¶6, 8, pp. 4–5 (Mar. 25). Meanwhile, the Veterans Court‘s 1992 decision in Look v. Derwinski, 2 Vet. App. 157, while not a model of clarity, undeniably “approv[ed of] collateral relief” based on “a later invalidated regulation,” as the Court recognizes. Ante, at 8.
My takeaway from these conflicting authorities is that the pre-existing doctrine Congress incorporated in 1997 was unsettled аs to whether judicial invalidation of a regulation that squarely contravened an unambiguous statute constituted a “change in interpretation of law.” In other words, where the Court perceives certainty, I see at most confusion. Confronted 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.“” Henderson v. Shinseki, 562 U. S. 428, 441 (2011) (quoting King v. St. Vincent‘s Hospital, 502 U. S. 215, 220–221, n. 9 (1991)). Accordingly, I would hold that George may seek review based on clear and unmistakable error.
For these reasons, as well as others set forth by JUSTICE GORSUCH, I respectfully dissent.
SUPREME COURT OF THE UNITED STATES
No. 21–234
KEVIN R. GEORGE, PETITIONER v. DENIS R. MCDONOUGH, SECRETARY OF VETERANS AFFAIRS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[June 15, 2022]
JUSTICE GORSUCH, with whom JUSTICE BREYER joins, and with whom JUSTICE SOTOMAYOR joins as to all but Part II–C, dissenting.
A young recruit to the United States Marines left the ranks after military doctors found his service aggravated a preexisting mental illness. Eventually, he applied for service-related benefits. The Veterans Administration refused his application. It turns out the agency did so based on a badly mistaken reading of the law. On discovering the error years later, the Marine petitioned the agency to revisit its decision. Congress has expressly allowed veterans to do exactly that, providing that they may “at any time” petition the agency to cure “clear and unmistakable error[s]” in its past administrative decisions.
I
When Kevin George enlisted in the Marines in 1975, doctors conducted an entrance exam and found him fit to serve. But shortly after training began, he was hospitalized and diagnosed with an “Acute Schizophrenic Reaction” that occurred “[i]n line of duty.” Record in No. 16–2174
When Mr. George filed a claim for veteran benefits a few months later, he had cause for optimism. Congress has provided that veterans are entitled to “compensation” for any “disability resulting from [the] aggravation of a preexisting injury suffered or disease contracted in [the] line of duty.”
The Veterans Administration, the precursor to today‘s Department of Veterans Affairs (together, the Department or VA), denied Mr. George‘s application. In the process, the agency neglected to apply § 1111‘s statutory presumption of soundness that attached to his entry into military service. It also failed to follow § 1111‘s command requiring the agency to prove that Mr. George‘s condition “was not aggravated by such service.” Instead, the VA relied on a very different set of rules of its own creation. Under thеm, the agency said, all it had to show was that Mr. George suffered “an injury or disease [that] existed prior [to service].”
Eventually, virtually everyone came to agree that the administrative regulations on which the VA relied in deciding Mr. George‘s case defied the statutory terms Congress prescribed in § 1111. In 2003, the agency‘s General Counsel admitted as much. See VA Op. Gen. Counsel Precedent 3–2003, ¶¶ 3, 9. The following year, the Federal Circuit held that the statute “clear[ly]” forbade the VA‘s rules. Wagner v. Principi, 370 F. 3d 1089, 1094 (2004).
After the Federal Circuit‘s decision in Wagner, Mr. George asked the agency to reconsider his case under the correct standard set forth in § 1111. Understandаbly so. Congress has directed the VA to revise any prior administrative benefits decision infected with “clear and unmistakable error.”
II
A
I would reverse. In § 1111, Congress provided veterans
Of course, just how badly the agency‘s regulations departed from Congress‘s commands in § 1111 may not have been widely appreciated until the Federal Circuit highlighted the problem in Wagner. But a “judicial construction of a statute is an authoritative statement of what the statute meant before as well as аfter the decision.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 311–313 (1994). And an agency‘s “‘regulation which . . . operates to create a rule out of harmony with the statute, is a mere nullity.‘” Dixon v. United States, 381 U. S. 68, 74 (1965). From these premises, it follows that 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.”
B
What is the Court‘s reply? It highlights the fact that the agency‘s regulations bound its own internal administrative decisionmakers when they ruled on Mr. George‘s initial claim. Given that, the Court says, the agency‘s ruling was perfectly sound at the time, infected by no error of any kind, let alone clear and unmistakable error. Of course, the Fed-
A clear and unmistakable agency errоr cannot be made to vanish so easily. Even if an agency‘s unlawful regulations may bind its own employees until a court says otherwise, that does not mean its decisions applying those regulations to others are error-free. The regulations on which the VA relied in this case always defied Congress‘s express command in § 1111. In that sense, they were always a “nullity.” Dixon, 381 U. S., at 74. Nor does it make a difference that Wagner recognized as much only some time later. Once more, 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.” Rivers, 511 U. S., at 313, n. 12. The Court today errs badly by excusing an obvious error simply because it was once enshrined by the agency in a statutorily defiant regulation.
What is more, the Court‘s reading is at odds with the plain terms of
C
Perhaps sensing these problems with its primary theory, the Court offers a second and slightly different one. Now it insists that the phrase “clear and unmistakable error” is а term of art that originated in (still other) agency regulations. Ante, at 5. Under those regulations, the Court observes, an error did not qualify as “clear and unmistakable” if it was based on a “change in law or . . . a change in interpretation of law.”
This argument is no more persuasive than the last. When Congress “transform[s] . . . a regulatory procedure [in]to a statutory form of relief,” we enforce only those components Congress actually “codified” in the statutory text. Kucana v. Holder, 558 U. S. 233, 249–250 (2010) (internal quotation marks omitted). And here Congress did not codify the part of the old аgency regulation on which the Court relies. Nothing in the text of
III
In the end, it is hard to avoid the impression that the Court thinks an old agency ruling in Mr. George‘s case just isn‘t worth revisiting. See ante, at 10. Maybe, too, that might seem an understandable impulse on first encounter. After all, in civil and criminal litigation new judicial interpretations about a law‘s meaning normally do not apply to old cases after they have reached final judgment. See, e.g., Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 94–97 (1993).
But it turns out that impulse is doubly misguided here. For one thing, it is a mistake to equate veteran benefits cases with ordinary civil and criminal litigation. Recognizing the sacrifices of those who have left private life to serve their country, Congress has ordained that a veteran may petition for review of clear and unmistakable errors in past administrative decisions “at any time.”
For another thing, this case doesn‘t just affect Mr. George. It risks insulating countless other decisions in which the Department has wrongly denied veteran benefits based on self-serving regulations inconsistent with Congress‘s instructions. See, e.g., Brief for National Veterans Legal Serviсes Program et al. as Amici Curiae 15–27; Brief for Swords to Plowshares et al. as Amici Curiae 19–20. Veterans already face challenges enough in dealing with the Department. On average, the agency takes seven years to