George v. McDonough ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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 exam-
ination 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. §1110for 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 bene-
fits 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 presump-
tion that he was in sound condition when he entered service.
The Board denied George’s claim for collateral relief, and the Veter-
ans 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 deci-
sion becomes final cannot support a claim for collateral relief based on
2 GEORGE v. MCDONOUGH
Syllabus
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.” 111 Stat. 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 struc-
ture suggest a narrow category. A robust regulatory backdrop fills in
the details. Where Congress employs a term of art “ ‘ “obviously trans-
planted 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 in-
terpretation 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 author-
ity. He alternatively argues that the VA is wrong to call a later deci-
sion 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 deci-
sions 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
Cite as: 596 U. S. ____ (2022) 3
Syllabus
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. SO-
TOMAYOR, 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.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
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, Wash-
ington, 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 re-
quirements. When the Department of Veterans Affairs
(VA) denies a benefits claim, that decision generally be-
comes final after the veteran exhausts the opportunity for
direct appeal. But a statutory exception permits the vet-
eran 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
2 GEORGE v. MCDONOUGH
Opinion of the Court
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 condi-
tion”: If a veteran’s disability was not noted at the time of
entry into service, then the veteran is presumptively enti-
tled to benefits unless the VA shows by a heightened bur-
den 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 require-
ments, 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 re-
view 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 ulti-
mately in this Court. §7292; 28 U. S. C. §1254(1).
After this direct appeal process, the benefits decision gen-
erally becomes “final and conclusive and may not be re-
viewed 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 circum-
stances. 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).
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
This case concerns one such exception to finality: At any
time, a veteran may ask the Board or regional office to re-
vise a final benefits decision on grounds of “clear and un-
mistakable 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 un-
mistakable 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 in-
terpret today. 111 Stat. 2271.
B
Kevin George joined the Marine Corps in 1975 after ex-
periencing multiple schizophrenic episodes. He did not ini-
tially 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 ep-
isode and was hospitalized. A few months later, the Navy’s
Central Physical Evaluation Board found that his schizo-
phrenia 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 pre-
dated 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.
4 GEORGE v. MCDONOUGH
Opinion of the Court
In 2014, George asked the Board to revise that final deci-
sion 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 condi-
tion. For more than 40 years, including George’s time in
service, a VA regulation provided that the agency could re-
but the presumption simply by showing, according to a
heightened burden of proof, that a disability predated ser-
vice. 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 re-
quire 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 “illogi-
cal” to require an additional showing with “no obvious bear-
ing 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 “com-
pel[led]” this reading. Ibid. Based on this about-face, the
VA confessed error in a pending case applying the regula-
tion, 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 af-
firmed, concluding that the application of a later invali-
dated regulation does not fall into the narrow category of
“clear and unmistakable error” permitting revision of a fi-
nal decision under 38 U. S. C. §§5109A and 7111. 991 F. 3d
1227 (2021). We granted certiorari. 595 U. S. ___ (2022).
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
II
A
This case turns on the meaning of the 1997 statute sub-
jecting a final veterans’ benefits decision to collateral re-
view on grounds of “clear and unmistakable error.” 111
Stat. 2271 (38 U. S. C. §§5109A, 7111). Neither this statute
nor any other defines this term—indeed, it appears no-
where 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 nar-
row category because this form of review functions as a lim-
ited 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 nar-
rower than garden-variety “error.”
Fortunately, a robust regulatory backdrop fills in the de-
tails. 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. Prin-
cipi, 318 F. 3d 1334, 1344 (2002) (en banc). That longstand-
ing 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
6 GEORGE v. MCDONOUGH
Opinion of the Court
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: Dur-
ing the many years when clear and unmistakable error was
purely a creature of regulation, the governing statutes gen-
erally 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 ren-
dered”). So, for example, the VA’s failure to apply an exist-
ing regulation to undisputed record evidence could consti-
tute clear and unmistakable error. E.g., Myler v.
Derwinski, 1 Vet. App. 571, 574–575 (1991). But a subse-
quent legal change could not, because “only the ‘law that
existed at the time’ of the prior adjudication . . . can be con-
sidered” 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 interpre-
tation of law . . . from a case decided in 1993 could not pos-
sibly 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 un-
mistakable error provides “no authority . . . for retroactive
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
payment of benefits when,” as in this case, a court later “in-
validates 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 de-
cision, the more limited category of “[c]lear and unmistaka-
ble 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 inter-
pretation of the statute or regulation.” 38 CFR
§20.1403(e). The applicability of this principle does not de-
1
pend 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
——————
1 As should be clear from our explanation, the principal dissent is
wrong to attribute to the Court the view that an agency decision in these
circumstances is “infected by no error of any kind.” Post, at 4 (opinion of
GORSUCH, J.). The issue in this case is the distinction between “errors”
cognizable on direct appeal and clear and unmistakable errors cognizable
on collateral review. Throughout his opinion, JUSTICE GORSUCH elides
that distinction.
8 GEORGE v. MCDONOUGH
Opinion of the Court
regulation based on a new interpretation of the “sound con-
dition” provision. We express no view on the merits of that
change in interpretation, which are not before us. But be-
cause 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 applica-
tion 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 er-
ror.” 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, in-
cluding a later invalidated regulation, without discussing
the change-in-interpretation principle). And even that case
is ambiguous, as portions of the opinion may instead “sug-
gest 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
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
close to moving the mountain of contrary regulatory author-
ity. 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 sub-
sequent change in interpretation.
George alternatively argues that the VA erred in apply-
ing 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 regula-
tions”); Wagner, 370 F. 3d, at 1092 (discussing that “change
in agency interpretation”). We have occasionally used sim-
ilar 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 stat-
ute 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 correc-
tion of that interpretation is a change. So the VA’s applica-
tion of the change-in-interpretation label to claims like
George’s hardly reflects an “atypical” use of language, de-
spite his arguments to the contrary. Brief for Petitioner 18.
10 GEORGE v. MCDONOUGH
Opinion of the Court
Ordinary language aside, George tries to bolster his posi-
tion 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 unau-
thorized regulation is a “ ‘nullity,’ ” Dixon v. United States,
381 U. S. 68, 74 (1965). True enough. Those general prin-
ciples, however, do not dispose of the issue before us. As-
sume 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 reg-
ulation conflicted with that requirement. We would still
have to decide whether the Board’s application of that bind-
ing 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 in-
congruous 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 longstand-
ing 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 retroac-
tively, do not apply to cases already closed’ ” (quoting Reyn-
oldsville Casket Co. v. Hyde, 514 U. S. 749, 758 (1995); al-
teration omitted)). That limitation serves important
interests in finality, preventing narrow avenues for collat-
eral 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
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
Funds, Inc. v. Espinosa, 559 U. S. 260, 270 (2010) (an “ex-
ception 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. Re-
ply Brief 2. As he puts it: “Looking at the 1977 Board’s de-
cision 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 faith-
fully 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 Veter-
ans 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
——————
2 The principal dissent claims that this conclusion conflicts with the
governing statute’s present-tense statement that a VA decision “ ‘is sub-
ject’ to later ‘revision’ ” on collateral review. Post, at 5 (opinion of
GORSUCH, J.). But it would make little sense for Congress to pass a stat-
ute stating that a decision “was” subject to revision. The statute’s use of
the present tense refers to the time at which relief may be sought. It
says nothing about the scope of the category of clear and unmistakable
errors meriting relief, as fixed by the regulatory history. So we think
there are good reasons why neither George nor any of his amici makes
this argument.
12 GEORGE v. MCDONOUGH
Opinion of the Court
“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 Con-
gress employs a term of art,” that usage itself suffices to
“ ‘adop[t] the cluster of ideas that were attached to each bor-
rowed word’ ” in the absence of indication to the contrary.
FAA v. Cooper, 566 U. S. 284, 292 (2012). Here, the govern-
ing 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 ben-
efits decision becomes final cannot support a claim for col-
lateral relief based on clear and unmistakable error. We
affirm the judgment of the Court of Appeals.
It is so ordered.
Cite as: 596 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
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 SOTOMAYOR, dissenting.
I join all but Part II–C of JUSTICE GORSUCH’s dissent.
The Board of Veterans’ Appeals (Board) clearly and unmis-
takably violated a statutory command in its decision deny-
ing petitioner Kevin George’s application for service-related
benefits. As JUSTICE GORSUCH explains, in the context of
this specific statutory framework, the mere fact that the
Board relied on a plainly invalid regulation does not shield
its final decision from review based on clear and unmistak-
able error.1
The Court thinks otherwise. In support of its holding, the
Court notes that Congress, when it enacted the clear-and-
unmistakable-error statutes in 1997, codified a pre-existing
regulatory doctrine under which clear and unmistakable er-
ror did not encompass a subsequent “change in interpreta-
tion of law.” 38 CFR §3.105 (Cum. Supp. 1963); see ante, at
5–6. I agree that Congress incorporated this pre-existing
——————
1 In my view, some invalid Department of Veterans Affairs (VA) regu-
lations might not be erroneous enough for reliance on them to constitute
clear and unmistakable error. After all, by definition, not every error is
clear and unmistakable. The Board’s 1977 decision in George’s case,
however, meets this demanding standard. The presumption-of-sound-
ness regulation the Board applied was clearly and unmistakably con-
trary to the unambiguous terms of 38 U. S. C. §1111, as even the VA
eventually conceded. See post, at 2–3 (GORSUCH, J., dissenting).
2 GEORGE v. MCDONOUGH
SOTOMAYOR, J., dissenting
regulatory doctrine based on its use of “clear and unmistak-
able error,” a longstanding term of art. See ante, at 5, 12.2
I diverge from JUSTICE GORSUCH on this point. The ques-
tion remains, however: What constitutes a “change in inter-
pretation of law” excluded from clear and unmistakable er-
ror? In George’s view, a change in interpretation of law
occurs where “an agency . . . choos[es] another permissible
alternative construction” of a statute, but not where, as
here, a court invalidates a regulation that had egregiously
violated the governing statute all along. Brief for Petitioner
18; see also post, at 4–5 (GORSUCH, J., dissenting).
The Court disagrees. It holds that under the pre-existing
doctrine, judicial invalidation of an unmistakably errone-
ous regulation was understood to constitute a “change in
interpretation of law” for purposes of clear and unmistaka-
ble error. See ante, at 5–9. The Court’s citations offer little
support for this conclusion, however. In Berger v. Brown,
10 Vet. App. 166, 170 (1997), for example, the Court of Vet-
erans Appeals (Veterans Court) stated that opinions from
that body “that formulate new interpretations of the law . . .
cannot be the basis of a valid [clear-and-unmistakable-er-
ror] claim.” But the Veterans Court emphasized that the
decision under attack, unlike the Board’s decision in
George’s case, had followed “a plausible interpretation of
the law,” precluded by “nothing in the plain language of the
statute,” and added that “[t]he statute was, and still is for
that matter, susceptible of differing interpretations.” Ibid.Similarly, in Damrel v. Brown, 6 Vet. App. 242, 246 (1994),
the relevant change in interpretation of law was a Veterans
——————
2 Were there any doubt, legislative history would render the conclusion
unavoidable. See H. R. Rep. No. 105–52, pp. 1–2 (1997) (“H. R. 1090
would . . . codify existing regulations which make [VA] decisions . . . sub-
ject to revision on the grounds of clear and unmistakable error”); S. Rep.
No. 105–57, p. 4 (1997) (“The Committee bill . . . would codify, in statute,
the allowance currently specified by regulation” for review based on clear
and unmistakable error).
Cite as: 596 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
Court-created rule, not the invalidation of a regulation as
clearly contrary to the governing statute. And although it
was well established by 1997 that clear and unmistakable
error “must be based on . . . the law that existed at the time
of the prior . . . decision,” Russell v. Principi, 3 Vet. App.
310, 314 (1992) (en banc), this is not inconsistent with
George’s request for review based on the plain terms of a
statute as it existed in 1977, when the Board ruled against
him.
Other authorities relied upon by the Court are equivocal.
The VA opined in 1994 that invalidation of a regulation by
the Veterans Court constituted a “ ‘change in interpretation
of law,’ ” but it also admitted “that VA’s historical approach
has not been entirely consistent.” Op. Gen. Counsel Prece-
dent 9–94, ¶¶6, 8, pp. 4–5 (Mar. 25). Meanwhile, the Vet-
erans Court’s 1992 decision in Look v. Derwinski, 2 Vet.
App. 157, while not a model of clarity, undeniably “ap-
prov[ed of] collateral relief ” based on “a later invalidated
regulation,” as the Court recognizes. Ante, at 8.
My takeaway from these conflicting authorities is that
the pre-existing doctrine Congress incorporated in 1997
was unsettled as to whether judicial invalidation of a regu-
lation that squarely contravened an unambiguous statute
constituted a “change in interpretation of law.” In other
words, where the Court perceives certainty, I see at most
confusion. Confronted with an ambiguity in the scheme
Congress codified into statute, I would apply the venerable
“ ‘canon that provisions for benefits to members of the
Armed Services are to be construed in the beneficiaries’ fa-
vor.’ ” Henderson v. Shinseki, 562 U. S. 428, 441 (2011)
(quoting King v. St. Vincent’s Hospital, 502 U. S. 215, 220–
221, n. 9 (1991)). Accordingly, I would hold that George
may seek review based on clear and unmistakable error.
For these reasons, as well as others set forth by JUSTICE
GORSUCH, I respectfully dissent.
Cite as: 596 U. S. ____ (2022) 1
GORSUCH, J., dissenting
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 GORSUCH, with whom JUSTICE BREYER joins,
and with whom JUSTICE SOTOMAYOR joins as to all but Part
II–C, dissenting.
A young recruit to the United States Marines left the
ranks after military doctors found his service aggravated a
preexisting mental illness. Eventually, he applied for ser-
vice-related benefits. The Veterans Administration refused
his application. It turns out the agency did so based on a
badly mistaken reading of the law. On discovering the error
years later, the Marine petitioned the agency to revisit its
decision. Congress has expressly allowed veterans to do ex-
actly that, providing that they may “at any time” petition
the agency to cure “clear and unmistakable error[s]” in its
past administrative decisions. 38 U. S. C. §§ 5109A, 7111.
Despite this statutory command, the agency refused to reo-
pen the case. Today, the Court upholds the agency’s deci-
sion. Respectfully, I would not.
I
When Kevin George enlisted in the Marines in 1975, doc-
tors conducted an entrance exam and found him fit to serve.
But shortly after training began, he was hospitalized and
diagnosed with an “Acute Schizophrenic Reaction” that oc-
curred “[i]n line of duty.” Record in No. 16–2174
2 GEORGE v. MCDONOUGH
GORSUCH, J., dissenting
(Ct. Vet. App.), p. 1275. Later, after a period of resumed
training, Mr. George again required medical attention and
a military psychiatrist diagnosed him with “Paranoid
Schizophrenia” that was “Aggravated by Service.” App. to
Brief for Petitioner 3a. A military medical board agreed,
concluding that Mr. George’s condition predated his service
but was “aggrav[a]ted by a period of active duty.” Id., at 8a.
Ultimately, at the medical board’s recommendation, Mr.
George was discharged.
When Mr. George filed a claim for veteran benefits a few
months later, he had cause for optimism. Congress has pro-
vided that veterans are entitled to “compensation” for any
“disability resulting from [the] aggravation of a preexisting
injury suffered or disease contracted in [the] line of duty.”
38 U. S. C. § 1110. Congress has bolstered that right with
a presumption that individuals are in “sound condition”
when they enter service and are entitled to benefits later
unless the government demonstrates by “clear and unmis-
takable evidence . . . that [their] injury or disease existed
before acceptance and enrollment and was not aggravated
by such service.” § 1111 (emphasis added). Relying on those
provisions, Mr. George claimed that his military service ag-
gravated his schizophrenia, meaning the government had
the burden to disprove his claim.
The Veterans Administration, the precursor to today’s
Department of Veterans Affairs (together, the Department
or VA), denied Mr. George’s application. In the process, the
agency neglected to apply § 1111’s statutory presumption of
soundness that attached to his entry into military service.
It also failed to follow § 1111’s command requiring the
agency to prove that Mr. George’s condition “was not aggra-
vated by such service.” Instead, the VA relied on a very
different set of rules of its own creation. Under them, the
agency said, all it had to show was that Mr. George suffered
“an injury or disease [that] existed prior [to service].”
38 CFR § 3.304(b) (1976). And after determining that Mr.
Cite as: 596 U. S. ____ (2022) 3
GORSUCH, J., dissenting
George indeed suffered from schizophrenia before he joined
the military, the agency denied his claim. To make matters
worse, the agency even faulted Mr. George for failing to
carry his supposed burden of “support[ing] a claim for ag-
gravation.” App. to Pet. for Cert. 86a.
Eventually, virtually everyone came to agree that the ad-
ministrative regulations on which the VA relied in deciding
Mr. George’s case defied the statutory terms Congress pre-
scribed in § 1111. In 2003, the agency’s General Counsel
admitted as much. See VA Op. Gen. Counsel Precedent 3–
2003, ¶¶ 3, 9. The following year, the Federal Circuit held
that the statute “clear[ly]” forbade the VA’s rules. Wagner
v. Principi, 370 F. 3d 1089, 1094 (2004).
After the Federal Circuit’s decision in Wagner, Mr.
George asked the agency to reconsider his case under the
correct standard set forth in § 1111. Understandably so.
Congress has directed the VA to revise any prior adminis-
trative benefits decision infected with “clear and unmistak-
able error.” 38 U. S. C. §§ 5109A (regional office), 7111 (vet-
erans board). Congress has further instructed that
veterans may petition for review under this standard “at
any time.” §§ 5109A(d), 7111(d). Yet, despite these direc-
tions, the agency in 2016 refused to reopen Mr. George’s
case. To justify its decision, the agency reasoned that “ju-
dicial decisions that offer new interpretations of the law
subsequent to a VA decision cannot be the basis of a” claim
for clear and unmistakable error under the terms of
§§ 5109A and 7111. App. to Pet. for Cert. 71a. A divided
panel of the Veterans Court, a non-Article III tribunal, af-
firmed. See George v. Wilkie, 30 Vet. App. 364 (2019). So
did the Federal Circuit. 991 F. 3d 1227 (2021).
II
A
I would reverse. In § 1111, Congress provided veterans
4 GEORGE v. MCDONOUGH
GORSUCH, J., dissenting
with a presumption of soundness and required the govern-
ment to prove by clear and convincing evidence that any
condition a veteran suffered was not aggravated by service.
Today, however, everyone accepts that the regulations the
agency relied on to reject Mr. George’s initial claim imper-
missibly failed to implement these statutory commands.
On any reasonable account, that amounts to a clear and un-
mistakable agency error entitling Mr. George to a new hear-
ing. Regardless whether he can prevail under the test Con-
gress actually prescribed in § 1111, 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.
Of course, just how badly the agency’s regulations de-
parted from Congress’s commands in § 1111 may not have
been widely appreciated until the Federal Circuit high-
lighted the problem in Wagner. But a “judicial construction
of a statute is an authoritative statement of what the stat-
ute meant before as well as after the decision.” Rivers v.
Roadway Express, Inc., 511 U. S. 298, 311–313 (1994). And
an agency’s “ ‘regulation which . . . operates to create a rule
out of harmony with the statute, is a mere nullity.’ ” Dixon
v. United States, 381 U. S. 68, 74 (1965). From these prem-
ises, it follows that the agency’s ruling in this case, depend-
ing as it did on a statutorily impermissible regulation, was
infected by “clear and unmistakable error” that Mr. George
is entitled to have corrected “at any time.” §§ 5109A, 7111.
B
What is the Court’s reply? It highlights the fact that the
agency’s regulations bound its own internal administrative
decisionmakers when they ruled on Mr. George’s initial
claim. Given that, the Court says, the agency’s ruling was
perfectly sound at the time, infected by no error of any kind,
let alone clear and unmistakable error. Of course, the Fed-
Cite as: 596 U. S. ____ (2022) 5
GORSUCH, J., dissenting
eral Circuit in Wagner later held that the agency’s regula-
tions “clear[ly]” defied its statutory charge from Congress.
370 F. 3d, at 1094. But, on the Court’s view today, that de-
cision represented a change in governing law. See ante, at
7, 9.
A clear and unmistakable agency error cannot be made
to vanish so easily. Even if an agency’s unlawful regula-
tions may bind its own employees until a court says other-
wise, that does not mean its decisions applying those regu-
lations to others are error-free. The regulations on which
the VA relied in this case always defied Congress’s express
command in § 1111. In that sense, they were always a
“ ‘nullity.’ ” Dixon, 381 U. S., at 74. Nor does it make a dif-
ference that Wagner recognized as much only some time
later. Once more, when a court interprets a statute and
declares contrary regulations invalid, it cannot and does not
change the law; it can only explain what the law has “al-
ways meant.” Rivers, 511 U. S., at 313, n. 12. The Court
today errs badly by excusing an obvious error simply be-
cause it was once enshrined by the agency in a statutorily
defiant regulation.
What is more, the Court’s reading is at odds with the
plain terms of §§ 5109A and 7111. Under those statutes,
an initial administrative ruling denying benefits “is sub-
ject” to later “revision . . . [i]f evidence establishes the [clear
and unmistakable] error.” §§ 5109A(a), 7111(a) (emphasis
added). 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 estab-
lished. 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. §§ 5109A(c),
7111(c) (emphasis added). More present tense. Congress
easily could have said that a decision is reviewable only
6 GEORGE v. MCDONOUGH
GORSUCH, J., dissenting
where an error was “clear and unmistakable” from the out-
set. It did not. Instead, Congress instructed the agency to
assess whether—from its present vantage—one of its prior
administrative rulings suffers from a “clear and unmistak-
able error.”
C
Perhaps sensing these problems with its primary theory,
the Court offers a second and slightly different one. Now it
insists that the phrase “clear and unmistakable error” is a
term of art that originated in (still other) agency regula-
tions. Ante, at 5. Under those regulations, the Court ob-
serves, an error did not qualify as “clear and unmistakable”
if it was based on a “change in law or . . . a change in inter-
pretation of law.” 38 CFR § 3.105 (Cum. Supp. 1963); see
ante, at 6. On the Court’s telling, Congress meant to incor-
porate this same standard when it adopted §§ 5109A and
7111. And, the Court continues, that standard precludes
relief in this case because the error here is apparent only
thanks to the Federal Circuit’s intervening Wagner deci-
sion, which represented a “change in interpretation of law.”
See ante, at 6–8.
This argument is no more persuasive than the last.
When Congress “transform[s] . . . a regulatory procedure
[in]to a statutory form of relief,” we enforce only those com-
ponents Congress actually “codif[ied]” in the statutory text.
Kucana v. Holder, 558 U. S. 233, 249–250 (2010) (internal
quotation marks omitted). And here Congress did not cod-
ify the part of the old agency regulation on which the Court
relies. Nothing in the text of § 5109A or § 7111 says that
errors resulting from “changes in law” or “changes in inter-
pretation” are immune from correction. To the contrary,
Congress omitted this language from the agency’s prior reg-
ulations when it adopted §§ 5109A and 7111. Under the
law Congress actually wrote, prior agency decisions are
Cite as: 596 U. S. ____ (2022) 7
GORSUCH, J., dissenting
“subject to revision on the grounds of clear and unmistaka-
ble error.” Full stop. This Court should not be in the busi-
ness of adding words to the law, let alone to insulate badly
mistaken agency decisions from any chance of correction.
III
In the end, it is hard to avoid the impression that the
Court thinks an old agency ruling in Mr. George’s case just
isn’t worth revisiting. See ante, at 10. Maybe, too, that
might seem an understandable impulse on first encounter.
After all, in civil and criminal litigation new judicial inter-
pretations about a law’s meaning normally do not apply to
old cases after they have reached final judgment. See, e.g.,
Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 94–97
(1993).
But it turns out that impulse is doubly misguided here.
For one thing, it is a mistake to equate veteran benefits
cases with ordinary civil and criminal litigation. Recogniz-
ing 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.” §§ 5109A(d),
7111(d). Congress’s “whole purpose” in setting up this
scheme was “to make an exception to [the usual rule of] fi-
nality” for our veterans in recognition of their service to the
Nation. Gonzalez v. Crosby, 545 U. S. 524, 529 (2005).
For another thing, this case doesn’t just affect Mr.
George. It risks insulating countless other decisions in
which the Department has wrongly denied veteran benefits
based on self-serving regulations inconsistent with Con-
gress’s instructions. See, e.g., Brief for National Veterans
Legal Services Program et al. as Amici Curiae 15–27; Brief
for Swords to Plowshares et al. as Amici Curiae 19–20. Vet-
erans already face challenges enough in dealing with the
Department. On average, the agency takes seven years to
8 GEORGE v. MCDONOUGH
GORSUCH, J., dissenting
process their administrative appeals. See Brief for Na-
tional Law School Veterans Clinic Consortium as Amicus
Curiae 18. Over the past five years, it seems that the Vet-
erans Court has affirmed less than 10 percent of the
agency’s decisions. See ibid. Internal audits have revealed
massive numbers of improperly denied claims. See id.,
at 19. I would not add to these problems by shielding the
Department from the inconvenience of having to answer for
its own clear and unmistakable errors. Respectfully, I dis-
sent.