By Anita Krishnakumar
April 21, 2022
at 9:38 a.m.
Melanie Bostwick pleading for veteran Kevin George. (Art Link)
The justices on Tuesday weighed in on a dispute that may seem abstract: How should the standard of “clear and unmistakable error” apply when military veterans seek to overturn certain decisions that denied them disability benefits? But for 75 minutes of oral argument in George v. McDonoughthe practical implications of the case — both for veterans and for the agency that processes millions of claims for benefits — weighed heavily.
The case involves a federal law that compensates disabled veterans for injuries or illnesses “acquired in the line of duty” or for the “aggravation” of pre-existing injuries or illnesses. The law also states that “every veteran shall be considered to have been in good condition” at the time of enlistment, unless “clear and unequivocal evidence demonstrates that the injury or illness existed prior to acceptance and ‘enrollment”. and has not been aggravated by such service(emphasis added) A long-standing old regulation of the Department of Veterans Affairs established that “a veteran shall be deemed to have been in good condition when examined, accepted, and enlisted for service” unless “evidence clear and unequivocal (obvious or overt) demonstrates that an injury or illness existed prior to that” – omitting the statutory phrase “and was not aggravated by such service”.
In 2003, the VA’s general counsel concluded that the settlement was inconsistent with the text of the statute, in that it did not require clear and unequivocal evidence for the government to rebut the presumption that the injury where a veteran’s illness was worsen by his military service; a year later, the United States Court of Appeals for the Federal Circuit came to the same conclusion, ruling that “the government must demonstrate…both a pre-existing condition and an absence of in-service aggravation for overcome the presumption of solidity”.
Kevin George is a Vietnam War veteran who suffers from paranoid schizophrenia. In 1977, the VA denied his disability claim on the grounds that his mental illness predated his military service. But George says his military service at least made his illness worse, and after the Federal Circuit struck down the old ‘presumption of merit’ rule, he sued to challenge the denial of his claim. . The question posed is whether decisions denying VA benefits that were based on an agency regulation that has since been struck down constitute a “clear and unmistakable error” sufficient to overturn the VA’s decision and award benefits. retroactive benefits to the veteran. The answer depends on whether AV decisions that correctly applied an agency interpretation are “clearly and undeniably” wrong if the interpretation is later found to be incorrect.
The government argues that “clear and unequivocal error” – the legal standard for when a benefits decision may be reviewed – is a technical term with an established regulatory meaning of “a very specific and rare” or “very unusual error” which is more glaring than a simple clear error. As Deputy Solicitor General Anthony Yang pointed out in oral argument, “For nearly 60 years now, the rule governing clear and unmistakable error [has] provided that such error cannot be based on a change in the interpretation of the law.
George, conversely, argues that the phrase “clear and unmistakable error” must encompass clear misinterpretations of the legislative text such as the omission of the legislative phrase “and was not aggravated by such service”. in question here.
The judges seemed divided.
Judge Stephen Breyer appeared to be persuaded by George’s argument – repeatedly likening the error at issue to a hypothetical situation in which a law promises a benefit to those who served in World War II or the Korean War. , but the settlement “omitted” the Korean War, providing benefits only to WWII veterans. At one point, he called the invalidated bylaw at issue in that case “the clearest and most unmistakable mistake I’ve seen in 40 years.”
Other judges seemed less convinced by George’s position. Judge Samuel Alito, for example, distinguished between “decisional error” and “objective error” and noted that it was up to the court to decide what kind of error the “clear and unequivocal” standard of error encompasses. . After some back and forth on this point, George’s attorney, Melanie Bostwick, invoked the “history” of “clear and unmistakable error” as well as the substantive interpretive presumption that Congress intends to legislate for the benefit of veterans. In a perhaps revealing exchange, Alito responded skeptically to the question, “Is it a good interpretive tool?” and asked if George had any other arguments on his side.
Judge Brett Kavanaugh seemed concerned about three traditionally non-textual factors. First, he asked Bostwick if there was “evidence anywhere that Congress believed any clear and unequivocal error would trigger the retroactive awarding of benefits to the original time?” This focus on congressional intent is in direct conflict with textualism’s fundamental skepticism about the relevance—even the existence—of legislative intent in general. Second, Kavanaugh referred to a 1994 VA General Counsel opinion suggesting that Veterans Appeals Court decisions invalidating VA regulations or statutory interpretations do not have retroactive effect to to previous final decisions on the claims, and he asked Bostwick what weight should be given. on this review. Third, and perhaps most tellingly, Kavanaugh has repeatedly asked about the practical implications of reversing decades-old VA denial decisions, with retroactive benefits, due to a subsequent court ruling invalidating a long-standing agency regulation upon which the VA’s original decision was based. He noted that such a decision would impose “enormous difficulties” on the agency and called on the government to roughly estimate the implications of a decision in favor of George. (Yang responded that there were approximately 16 million ultimately denied VA claims and 14 to 16 court decisions invalidating VA regulations. He estimated that there could, as a result, be “substantial” and even “cascade” for final VA decisions if the court sides with George.) Expect this practical consideration to weigh heavily in the court’s final decision.
The other justices were fairly quiet during oral argument, although Justices Elena Kagan and Amy Coney Barrett both expressed skepticism of George’s argument, while Justice Sonia Sotomayor seemed somewhat sympathetic to his position. Based on how the discussion unfolded, I would expect a decision in favor of the government – perhaps on a 7-2 vote, or similar.