For the second time this week, Justice Neil Gorsuch penned a lengthy dissent to a conservative majority opinion authored by Justice Amy Coney Barrett.
The Supreme Court case stylized as George v. McDonough concerns an admittedly unlawful interpretation of a federal statute that was later corrected. The dispute is about whether or not the veteran long ago impacted by that interpretation has any recourse through the federal court system.
The majority says he does not.
Kevin George has been litigating his denial of VA disability benefits for decades. He joined the Marines in June 1975 and his service twice aggravated his previously-undiagnosed-but-preexisting paranoid schizophrenia, military evaluation boards determined.
George filed for disability benefits in December 1975. In 1977, the VA denied his claim by citing to their own internal regulation – based on a federal law – that allowed them to deny claims by simply claiming a veteran was sick before they enlisted. As it turned out, however, the agency’s regulation was a complete departure from the actual federal law in question and was eventually invalidated by the Federal Circuit on the grounds that the rule conflicted with the statute.
After that decision, George sued again, requesting a new hearing to reopen his original denial. He sued under sections of federal law that allow courts to revise administrative rulings if evidence “establishes” that “clear and unmistakable error” in any given case “exists.”
“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,” Barrett sums up, denying the veteran a new hearing. “We affirm the judgment of the Court of Appeals.”
The dissent clearly disagrees.
“[E]veryone accepts that the regulations the agency relied on to reject Mr. George’s initial claim impermissibly failed to implement [the relevant] statutory commands,” Gorsuch writes. “On any reasonable account, that amounts to a clear and unmistakable agency error entitling Mr. George to a new hearing. Regardless whether he can prevail under the test Congress actually prescribed in [the relevant section of federal law], he is at least entitled to a hearing consistent with the law’s terms. The agency’s failure to provide him that simple (and legally compelled) courtesy is inexcusable.”
The majority opinion is largely premised on the two-pronged notion that: (1) “clear and unmistakable error” is a term of art that is exceptionally narrow; and (2) that term of art does not apply when there is a “change in law” or a “change in interpretation of law.”
The heart of Barrett’s opinion explains:
[Based on] 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 regulation, as it was statutorily obligated to do. Decades later, the VA and the Federal Circuit rejected that regulation based on a new interpretation of the “sound condition” provision. We express no view on the merits of that change in interpretation, which are not before us. But because it is a change, it cannot support a claim of clear and unmistakable error in the Board’s routine 1977 application of the prior regulation. Put differently, 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.
“The invalidation of a prior regulation constitutes a ‘change in interpretation of law’ under historical agency practice,” the majority continues. “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 payment of benefits when,’ as in this case, a court later ‘invalidates a VA interpretation or regulation’ after a benefits decision becomes final.”
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George takes issue with the overarching analysis employed by the majority, saying it is wrong to characterize the VA’s decades-later invalidation of a regulation as a “change in interpretation of law.”
Barrett dismisses this argument by noting that a real change did happen here–albeit one made to correct an initial mistake.
“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,”” the opinion says. “In short, a misinterpretation is still an interpretation, and a correction of that interpretation is a change.”
Gorsuch hotly disputes the basic premise of the court’s analysis here—effectively aiming to draw a distinction between a statute and an administrative rule. In his view, only the former is actually a law.
“Congress did not codify the part of the old agency regulation on which the Court relies,” he notes. “Under the law Congress actually wrote, prior agency decisions are ‘subject to revision on the grounds of clear and unmistakable error.’ Full stop. This Court should not be in the business of adding words to the law, let alone to insulate badly mistaken agency decisions from any chance of correction.”
The key issue for the dissent is that the statutes in question place “present tense” demands on administrative agencies. The retrospective look back to what the VA has done, the dissent says, is improper.
Gorsuch argues [italics in original]:
[T]he Court’s reading is at odds with the plain terms of [the federal statutes at issue]. Under those statutes, an initial administrative ruling denying benefits “is subject” to later “revision . . . [i]f evidence establishes the [clear and unmistakable] error.” Notice the tense. The law does not ask if the agency’s error was “clear and unmistakable” at the time of its original decision. Instead, it commands the agency to correct any clear and unmistakable error presently established. The same statutes further instruct that a petition “to determine whether clear and unmistakable error exists in a case may be instituted” in various ways.
For the dissent, this is a special case that sharply departs from traditional notions in civil and criminal law that interpretative changes “do not apply to old cases after they have reached final judgment.”
“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,’” Gorsuch writes – referring to the underlying statute that allowed George to file his case. “Congress’s ‘whole purpose’ in setting up this scheme was ‘to make an exception to [the usual rule of] finality’ for our veterans in recognition of their service to the Nation.”
Justice Stephen Breyer joined Gorsuch’s dissent in full. Justice Sonia Sotomayor joined most of the principal dissent and wrote her own brief and separate dissent. Justices Barrett, Clarence Thomas, John Roberts, Samuel Alito, Elena Kagan, and Brett Kavanaugh formed the majority.
[Images via Alex Wong/Getty Images, MELINA MARA/POOL/AFP via Getty Images]
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