George v. McDonough, 596 U.S. ___ (2022)
George joined the Marine Corps in 1975 without disclosing his history of schizophrenic episodes. His medical examination noted no mental disorders. George suffered an episode during training. The Marines medically discharged him. George applied for veterans’ disability benefits based on his schizophrenia, 38 U.S.C. 1110. The Board of Veterans’ Appeals denied his appeal from a regional office denial in 1977. 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” after the veteran exhausts the opportunity for direct appeal. George sought collateral review under an exception allowing revision of a final benefits decision at any time on grounds of “clear and unmistakable error,” 38 U.S.C. 5109A, 7111. He claimed that the Board applied a later-invalidated regulation to deny his claim without requiring the VA to rebut the statutory presumption that he was in sound condition when he entered service.
The Veterans Court, Federal Circuit, and Supreme Court affirmed the denial of relief. 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. Congress adopted the “clear and unmistakable error doctrine” developed under decades of prior agency practice. The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice, not “clear and unmistakable error.” That approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review. The fact that Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation does not mean that the principle did not carry over.
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.
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 38 U. S. C. §1110 for veterans’ disability benefits based on his schizophrenia. A regional office of the VA denied George’s claim, and the VA’s Board of Veterans’ Appeals denied his appeal in 1977.
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. §511(a); see §7104(a). But George sought collateral review under a statutory exception allowing a veteran to seek revision of a final benefits decision at any time on grounds of “clear and unmistakable error.” §§5109A, 7111; see 38 CFR §§3.105, 20.1400–20.1411. In particular, he claimed that the Board clearly and unmistakably erred by applying a later invalidated regulation to deny his claim for benefits without holding the VA to its burden of proof to rebut the statutory presumption that he was in sound condition when he entered service.
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 38 U. S. C. §§5109A and 7111.
Held: 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. Pp. 5–12.
(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.” 111Stat. 2271 (38 U. S. C. §§5109A, 7111). No statute defines the term “clear and unmistakable error,” but the modifiers “clear” and “unmistakable” as well as the statutory structure suggest a narrow category. 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. ___, ___. That principle applies here. The Court agrees with the Federal Circuit that Congress “codif[ied] and adopt[ed] the [clear-and-unmistakable-error] doctrine as it had developed under” decades of prior agency practice. Cook v. Principi, 318 F.3d 1334, 1344 (en banc). That history reveals that this category of error does not encompass a subsequent “change in law . . . or a change in interpretation of law.” 38 CFR §3.105 (Cum. Supp. 1963). And the invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice. Defined by this regulatory history, the statutory term “clear and unmistakable error” does not encompass a claim like George’s. Pp. 5–8.
(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 unmistakable 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, 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 §§5109A and 7111. And that longstanding VA approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review.
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 relief for subsequent changes in interpretation does not mean that the principle did not carry over to the statute. Statutory “silence” on the details of prior regulatory practice indicates that Congress “left the matter where it was pre-[codification].” Kucana v. Holder, 558 U.S. 233, 250. Pp. 8–12.
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, and in which Sotomayor, J., joined as to all but Part II–C.
JUDGMENT ISSUED |
Adjudged to be 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, and in which Sotomayor, J., joined as to all but Part II–C. |
Argued. For petitioner: Melanie L. Bostwick, Washington, D. C. For respondent: Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. |
Reply of Kevin R. George submitted. |
Reply of petitioner Kevin R. George filed. (Distributed) |
Brief of Denis R. McDonough, Secretary of Veterans Affairs not accepted for filing. (April 01, 2022--Corrected brief and PDF to be submitted.) |
Brief of respondent Denis R. McDonough, Secretary of Veterans Affairs filed. (Distributed) |
Brief of Denis R. McDonough, Secretary of Veterans Affairs submitted. |
The record received from the U.S. Court of Appeals for Veterans Claims has been electronically filed. |
CIRCULATED |
The record from the U.S.C.A. Federal Circuit is electronic and located on Pacer. |
Record requested from the U.S.C.A. Federal Circuit. |
ARGUMENT SET FOR Tuesday, April 19, 2022. |
Amicus brief of Senators Ted Cruz and Mike Lee submitted. |
Amicus brief of Swords to Plowshares and Vietnam Veterans of America submitted. |
Amicus brief of National Veterans Legal Services Program; National Organization of Veterans' Advocates; Paralyzed Veterans of America; Service Women's Action Network submitted. |
Brief amici curiae of Senators Ted Cruz and Mike Lee filed. |
Brief amicus curiae of Military-Veterans Advocacy and Legal Aid Foundation of Los Angeles filed. |
Amicus brief of Military-Veterans Advocacy submitted. |
Brief amici curiae of Swords to Plowshares and Vietnam Veterans of America filed. |
Brief amici curiae of National Veterans Legal Services Program, et al. filed. |
Amicus brief of National Law School Veterans Clinic Consortium submitted. |
Brief amicus curiae of National Law School Veterans Clinic Consortium filed. |
Amicus brief of Disabled American Veterans not accepted for filing. (March 03, 2022--Corrected version to be submitted) |
Amicus brief of Disabled American Veterans submitted. |
Amicus brief of Disabled American Veterans submitted. |
Brief amicus curiae of Disabled American Veterans (3/3/2022) filed. |
Brief of Kevin R. George submitted. |
Brief of petitioner Kevin R. George filed. |
Motion to dispense with printing the joint appendix filed by petitioner GRANTED. |
Motion of Kevin R. George to dispense with joint appendix submitted. |
Motion to dispense with printing the joint appendix filed by petitioner Kevin R. George. |
Petition GRANTED. |
DISTRIBUTED for Conference of 1/14/2022. |
DISTRIBUTED for Conference of 1/7/2022. |
Reply of petitioner Kevin R. George filed. (Distributed) |
Brief of respondent Denis R. McDonough, Secretary of Veterans Affairs in opposition filed. |
Motion to extend the time to file a response is granted and the time is further extended to and including December 8, 2021. |
Motion to extend the time to file a response from November 17, 2021 to December 8, 2021, submitted to The Clerk. |
Motion to extend the time to file a response is granted and the time is further extended to and including November 17, 2021. |
Motion to extend the time to file a response from October 18, 2021 to November 17, 2021, submitted to The Clerk. |
Brief amicus curiae of Military-Veterans Advocacy filed. |
Brief amicus curiae of Jeremy C. Doerre filed. |
Motion to extend the time to file a response is granted and the time is extended to and including October 18, 2021. |
Motion to extend the time to file a response from September 16, 2021 to October 18, 2021, submitted to The Clerk. |
Petition for a writ of certiorari filed. (Response due September 16, 2021) |