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 unmistakable 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 38 U. S. C. §1110. A veteran
seeking such benefits must first file a claim with the VA.
§5101(a)(1)(A). A regional office of the VA then determines whether
the veteran satisfies all legal prerequisites, including the
requirement that military service caused or aggravated the
disability. §511(a); see 38 CFR §3.100(a) (2021). To that end, the
statute governing wartime service imposes a “[p]resumption of sound
condition”: If a veteran’s disability was not noted at the time of
entry into service, then the veteran is presumptively entitled to
benefits unless the VA shows by a heightened burden of proof that
the disability “existed before . . . and was not
aggravated by such service.” 38 U. S. C. §1111. After
applying this and other statutory and regulatory requirements, the
regional office issues an initial decision granting or denying
benefits. §§511(a), 5104(a).
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). §§7105(b)(1), 7104(a). If the Board also
denies relief, the veteran may seek further review outside the
agency. Such review was once limited to constitutional and certain
statutory claims, but since 1988 Congress has generally allowed
veterans 120 days to appeal any Board decision to the Court of
Appeals for Veterans Claims (Veterans Court). See
Henderson
v.
Shinseki,
562 U.S.
428, 432, and n. 1 (2011); §§7252(a), 7261(a), 7266(a). A
veteran dissatisfied with that court’s decision may seek review of
any legal issue in the Federal Circuit and ultimately in this
Court. §7292; 28 U. S. C. §1254(1).
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.” 38
U. S. C. §511(a); see §7104(a). Still, the veteran enjoys
a few limited options for seeking collateral review in exceptional
circumstances.
E.g., §5108(a) (supplemental claim based on
new and relevant evidence); §503(a) (discretionary relief based on
administrative error); §5110(g) (increase of benefits based on
subsequent liberalizing legal change).
This case concerns one such exception to
finality: At any time, a veteran may ask the Board or regional
office to revise a final benefits decision on grounds of “clear and
unmistakable error.” §5109A (regional office); §7111 (the Board);
38 CFR §§3.105, 20.1400–20.1411 (2021). This form of collateral
review was first adopted by regulation roughly 100 years ago. Since
at least 1928, the VA and its predecessor agencies have allowed
revision of an otherwise final decision when “obviously warranted
by a clear and unmistakable error.” Veterans’ Bureau Reg. No. 187,
pt. 1, §7155 (1928); see 38 CFR §3.105(a) (Cum. Supp. 1963)
(“Previous determinations . . . will be accepted as
correct in the absence of clear and unmistakable error”). In 1997,
Congress codified this form of review in the statute we interpret
today. 111Stat. 2271.
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 schizophrenia. 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.
In 2014, George asked the Board to revise that
final decision on grounds of “clear and unmistakable error.” 38
U. S. C. §7111. In particular, he claimed that the Board
erred by applying a later invalidated regulation to deny his claim
for benefits without holding the VA to its full burden of proof to
rebut the statutory presumption of sound condition. For more than
40 years, including George’s time in service, a VA regulation
provided that the agency could rebut the presumption simply by
showing, according to a heightened burden of proof, that a
disability predated service. See 26 Fed. Reg. 1580 (1961); 38 CFR
§3.304(b) (1976). In 2003, however, the VA concluded that this
regulation conflicted with the statute, which it now understood to
require an additional showing (by the same burden of proof ):
that the veteran’s condition was not later aggravated by service.
VA Op. Gen. Counsel Precedent (VA Op.) 3–2003 (July 16, 2003). The
VA recognized that it seemed “illogical” to require an additional
showing with “no obvious bearing upon the presumed fact of whether
the veteran was in sound condition when he or she entered service.”
Id., at 8. But it explained that the statutory text
nonetheless “compel[led]” this reading.
Ibid. Based on this
about-face, the VA confessed error in a pending case applying the
regulation, and the Federal Circuit agreed that this “difficult to
parse” and “somewhat self-contradictory” statute rendered the
regulation “incorrect.”
Wagner v.
Principi,
370 F.3d 1089, 1093, 1097 (2004). The VA ultimately amended the
regulation to resolve the issue going forward. 70 Fed. Reg. 23027
(2005).
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. 991 F.3d 1227 (2021). We
granted certiorari. 595 U. S. ___ (2022).
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.”
111Stat. 2271 (38 U. S. C. §§5109A, 7111). Neither this
statute nor any other defines this term—indeed, it appears nowhere
else in the entire United States Code. The modifiers “clear” and
“unmistakable” indicate that this is a narrow category excluding
some forms of error cognizable in other contexts. The statutory
structure similarly suggests a narrow category because this form of
review functions as a limited exception to finality, in contrast to
the broad provision of one direct appeal for “[a]ll questions” in a
case. §7104(a). But beyond those general contours, the statute
itself does not identify the specific ways in which this category
is narrower than garden-variety “error.”
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. 38 CFR
§20.1403(a).
Most important for present purposes, the 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 for good reason: During
the many years when clear and unmistakable error was purely a
creature of regulation, the governing statutes generally did not
allow “[n]ew or recently developed facts or changes in the law” to
“provide a basis for revising a finally decided case.”
Russell v.
Principi, 3 Vet. App. 310, 313 (1992) (en
banc) (citing 38 U. S. C. §§5108, 7104). To stay within
that statutory constraint, authorities dating back to 1928 confirm
that “[a] determination that there was ‘clear and unmistakable
error’ must be based on the record and the law
that existed at
the time of the prior [VA] decision.” 3 Vet. App., at 314
(emphasis added); see 38 CFR §20.1403(b) (similar); Veterans’
Bureau Reg. No. 187, pt. 1, §7155 (requiring “clear and
unmistakable error shown by the evidence in file at the time the
prior decision was rendered”). So, for example, the VA’s failure to
apply an existing regulation to undisputed record evidence could
constitute clear and unmistakable error.
E.g., Myler
v.
Derwinski, 1 Vet. App. 571, 574–575 (1991). But a
subsequent legal change could not, because “only the ‘law that
existed at the time’ of the prior adjudication . . . can
be considered” in this posture.
Damrel v.
Brown, 6
Vet. App. 242, 246 (1994). Or as the Veterans Court summed up,
shortly before the enactment of the 1997 statute: A “new
interpretation of law . . . from a case decided in 1993
could not possibly be the basis of [clear and unmistakable] error
in 1969,” as “a simple recitation of the time sequence” should
“make . . . clear.”
Berger v.
Brown, 10
Vet. App. 166, 170 (1997).
The invalidation of a prior regulation
constitutes a “change 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 payment of benefits when,” as in this case, a court
later “invalidates a VA interpretation or regulation” after a
benefits decision becomes final. VA Op. 9–94, ¶6, p. 5 (Mar. 25,
1994). Under this practice and the statute codifying it, the Board
is instead simply “performing its assigned task when it applies a
regulation as promulgated by the [VA],” because that regulation
legally binds agency adjudicators. VA Op. 25–95, ¶4, p. 2 (Dec. 6,
1995); see 38 U. S. C. §7104(c) (“The Board shall be
bound in its decisions by the regulations of the Department”). To
be sure, when a previously applied regulation is later invalidated,
relief may be warranted for “error” in a case still on direct
appeal.
E.g., Wagner, 370 F. 3d, at 1092, 1097.
But on collateral review of a final decision, the more limited
category of “[c]lear and unmistakable error does not include the
otherwise correct application of a statute or regulation where,
subsequent to the Board decision challenged, there has been a
change in the interpretation of the statute or regulation.” 38 CFR
§20.1403(e).[
1] The
applicability of this principle does not depend on the reason why
the agency changed course: A change based on the conclusion that a
prior interpretation was wrong is still a changed
interpretation.
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 regulation, as it was
statutorily obligated to do. See 38 U. S. C. §7104(c).
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.
B
1
George offers several responses. He generally
concedes the premise that the 1997 statute codified the
longstanding regulatory practice defining “clear and unmistakable
error.” 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 close to moving the mountain of contrary regulatory
authority. See
supra, at 5–7. When we say that a statute
adopts a term of art, we mean that it captures “the state of [a]
body of law,” not every errant decision of arguable relevance.
Federal Republic of Germany v.
Philipp, 592
U. S. ___, ___ (2021) (slip op., at 9). Even if George could
pluck from the crowd a few stray decisions pointing his way, that
would not show a “ ‘settled’ meaning” that we can infer
“Congress had . . . in mind when it enacted” this
statute.
Return Mail, Inc. v.
Postal Service, 587
U. S. ___, ___ (2019) (slip op., at 15). Instead, the
mainstream of agency practice settles that a
clear-and-unmistakable-error claim cannot rest on a subsequent
change in interpretation.
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.
Ordinary language aside, George tries to bolster
his position with analogies to precedent from other contexts. He
invokes an array of 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 (1965). True enough. Those general principles, however,
do not dispose of the issue before us. Assume George is right that
the “sound condition” provision always required the VA to show that
the veteran’s condition was not later aggravated by service and
that the 1961 regulation conflicted with that requirement. We would
still have to decide whether the Board’s application of that
binding regulation is the kind of “clear and unmistakable error”
for which collateral relief is available under 38
U. S. C. §§5109A and 7111. For the reasons we have
explained, it is not.
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 Funds,
Inc. v.
Espinosa,
559 U.S.
260, 270 (2010) (an “exception to finality” should not be read
to “swallow the rule”). So the VA’s approach to collateral relief
is not unusual. Here as elsewhere, litigants must overcome a
“stron[g]” “presumption of validity” when “otherwise final
decisions . . . are collaterally attacked.”
Fugo
v.
Brown, 6 Vet. App. 40, 44 (1993).[
2]
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 that “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 was
the “prevailing understanding” of this term of art “under the law
that Congress looked to when codifying” it. Reply Brief 2, 4; see
West Virginia Univ. Hospitals, Inc. v.
Casey,
499 U.S.
83, 92, n. 5 (1991) (terms of art “
depart from
ordinary meaning”). To the extent they diverge, the historical
meaning controls.
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, too, 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 38 U. S. C. §7111). And
we take the statutory “silence” on the details of prior regulatory
practice to “l[eave] the matter where it was pre-[codification].”
Kucana v.
Holder,
558 U.S.
233, 250 (2010). We decline George’s invitation to gerrymander
out this one feature of the prior practice.
* * *
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. We
affirm the judgment of the Court of Appeals.
It is so ordered.
Comments
Be the first to comment
Leave a Comment