Far from the usual textualism, the court dismisses a veteran’s attempt to reinstate a denial of service based on an error of law


The Supreme Court on Wednesday decided 6-3 that a VA benefit decision that was based on a carrier ordinance in force at the time it was issued does not represent a “clear and unequivocal error” even if the carrier ordinance later turns out to contradict the wording of the relevant benefit statute. As a result, a veteran whose benefit claim was denied under the later-repealed regulation may not attempt to reopen his or her denial of benefit under a law that allows for additional review of veterans’ benefit decisions based on “clear and undeniable error.”

Before you dive into the opinion of the court George vs McDonough, it is worth recalling some background on the case and its intricate intersection of statutes, regulations, and administrative and judicial decisions. Keep in mind that the relevant Veterans Benefits Act requires the United States to pay compensation to a veteran who is disabled because of injuries or illnesses “acquired in the line of duty” or “aggravation of an injury already suffered or suffered.” is the line of duty.” Another provision of the statute states that “every veteran shall be presumed to be in a sound condition at the time of enrollment” unless “clear and unequivocal evidence establishes that that the injury or illness existed prior to admission and enrollment and was not aggravated by such service.” A longstanding Department of Veterans Affairs rule, in effect for 20 years, states that a “veteran is deemed to be in good standing when examined, accepted, and enrolled for duty” unless ” clear and unequivocal evidence (obvious or manifest) showing that there was a previous injury or illness’ – omitting the statutory phrase ‘and was not aggravated by such performance’. In 2003, the VA’s General Counsel concluded that the ordinance was inconsistent with the text of the statute in that it did not require clear and unequivocal evidence to rebut the presumption that a veteran’s injury or illness was involved aggravated through his military service; A year later, the U.S. Court of Appeals for the Federal Circuit came to the same conclusion, ruling that “the government … must demonstrate both pre-existing medical condition and lack of aggravation on duty to overcome the presumption of soundness.”

In 2014, veteran Kevin George asked the Board of Veterans’ Appeals – an administrative body within the VA – to reverse its final decision, which allowed him to withdraw his benefit entitlement based on a pre-existing paranoid schizophrenia that had been exacerbated by his service. rejected another statutory provision that allows veterans to request a review of a final benefit decision at any time due to “clear and undeniable error.” The board rejected George’s claim and the Veterans’ Claims Court upheld it. The Federal Court of Justice also affirmed and concluded that the application of a rule later invalidated did not fall into the category of “clear and undeniable error” that would allow revisions to a final decision. The Supreme Court agreed in an opinion written by Justice Amy Coney Barrett and joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sam Alito, Elena Kagan and Brett Kavanaugh.

Perhaps the most striking feature of Barrett’s opinion for the court (and the two dissenting opinions by Justices Sonia Sotomayor and Neil Gorsuch) is how little it focuses on the text of the relevant statutes. Barrett’s opinion nods to the text, noting that the modifiers “clearly” and “unmistakably” indicate that only a narrow category of errors is covered by the law. The statement also cursorily notes that the “statutory structure” suggests a narrow construction of covered errors, since the provision creates an exception to the norm of finality for veteran benefit decisions.

But Barrett quickly brushes aside these text-based observations as “general outlines” and continues with her main argument, which is that “a robust regulatory background fills in the details” of the law’s meaning. In particular, Barrett argues that the phrase “clear and unmistakable” error is an error concept of art — ie a term with a special legal meaning. In this case, Barrett claims that “clear and obvious error” is a phrase that means “ha[s] a long regulatory history” and concludes that Congress deliberately codified this long history and meaning when using the phrase in the law in question. Barrett goes on to explain that long-standing agency practice and precedent show that the term “clear and unmistakable” error does not encompass subsequent “changes in law” or “changes in legal interpretation” — and that the Federal Circuit’s ruling invalidates the agency rule on which George’s denial decision was based , is merely a “change in the interpretation of the law”.

The court’s reliance on agency practice — a pragmatic, atextual source of interpretation — is surprising, as is its emphasis on Congress’ alleged expectation that such agency practice would be incorporated or codified into relevant law. In fact, the majority’s focus on past agency practice is in stark contrast to their decision National Federation of Independent Business vs Department of Labor, the case decided earlier in this term, involving a federal COVID-19 guideline for large private employers. In this case, the court ruled that the Occupational Health and Safety Administration had exceeded its powers in imposing a vaccination or testing mandate on these employers because the mandate was intended to regulate a hazard (the transmission of COVID-19) that is not in the workplace -related and occur both outside and inside the workplace. In that ruling, the court ignored previous agency practice in the form of numerous previous OSHA decisions regulating workplace hazards, such as: B. exposure to asbestos or bloodborne pathogens or fire, which are not exclusive hazards in the workplace. Similarly, the court’s suggestion that Congress sought to codify the VA’s longstanding agency practice of treating “changes in interpretation of the law” as insufficient to constitute a “clear and undeniable error” is notable because it put the court in the position essentially left to speculate on legislative intent—a move that textualist judges usually denigrate.

Gorsuch, along with Sotomayor and Judge Stephen Breyer, disagreed. Gorsuch’s objection argues that a benefit decision based on a carrier ordinance that conflicts with the text of the relevant benefit statute necessarily represents a “clear and unmistakable error” – because a regulation conflicts with a legal text had always been not applicable, also at the time of the benefit decision. Finally, Gorsuch refers to the fact that the law granting the assessment was written in the present tense, that this was the case Not to include language contained in the VA Rules indicating that errors resulting from “changes in interpretation” are not to be considered “clear and unequivocal” and that in introducing this provision Congress was “solely aimed at ‘ to make an exception to the usual rule of finality for veterans ‘in recognition of their service to the nation’.

Sotomayor echoed all but Part II-C of Gorsuch’s opinion, writing separately to indicate that she agreed with the majority that Congress had codified pre-existing regulatory doctrine, which found that “clear and undeniable error” does not include a “change in legal interpretation”. – but that she disagreed with the majority’s reasoning on what constitutes a “change of interpretation”. Citing different Veterans Court decisions than the majority, their opinion suggests that existing regulatory doctrine was “unresolved” as to whether the judicial overturning of an ordinance that directly contradicts clear statute constitutes a “change of legal interpretation.” . Faced with this ambiguity, Sotomayor turns instead to the canon of veterans’ benefits – a canon of policy that assumes that “provisions for benefits to service members are to be construed in favor of the beneficiaries.” Based on that veteran-friendly canon, she would have allowed George to reopen his claim.

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