George v. McDonough (21-234)
argument 21-234George v. McDonough
Supreme Court of the United States
1h 15m
8 speakers
8 chapters
transcribed 5 days ago
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What is the legal standard of “clear and unmistakable error” in veterans’ benefits cases?
We will hear argument first this morning in case twenty one two hundred thirty four, George versus McDonough. Ms. Bostwick.
Mr Chief Justice, and may it please the court. Our nation's veterans benefit system is intended to be strongly and uniquely proclaimant. In this non adversarial system, veterans enjoy distinct procedural protections, and review of otherwise final decisions for clear and unmistakable error or Q is one of those unique protections. It prevents the agency's obvious errors from depriving veterans of the benefits to which their service entitles them. There is no dispute that a clear and unmistakable error has occurred when VA adjudicators misapply the terms of a plain statute, but the government seeks to impose an a textual exception to that general rule. That the agency does not clearly err when it enshrines its misapplication of law in a regulation.
That cannot be correct. As this Court has said over and over, an agency regulation has the force of law only if it is consistent with Congress's command. And the government cannot deny this feature of our separation of powers, and its attempts to avoid it are unsuccessful. A VA adjudicator is directed to apply not only the agency's regulations, but also Congress's statutes. When the regulation conflicts with the statute, the adjudicator cannot possibly follow both. But this dilemma created by the agency's own unlawful acts does not stop a later tribunal from identifying and remedying the clear legal errors. that infected the decision. Nor is this legal error a mere change in interpretation. VA's regulations have long distinguished between genuine legal changes that might warrant updating prior benefits rulings and legal errors that entitle veterans to revision of a flawed ruling.
Furthermore, what the agency did here could not even colloquially be called an interpretation. VA's presumption of soundness regulation tracked the statute most of the way, and then simply lopped off the end of the sentence, eliminating the second half of VA's two part obligation. It is not difficult to call that an error, and it is not difficult to say that denying Mr. George's claim based on this plainly invalid regulation was clearly and unmistakably erroneous. I welcome the court's questions.
Uh before we get to uh the substance or the merits of that. What is the posture of this case? Is this uh would you consider this a direct review?
No, this is a uh I I am sorry, I'm not sure I'm I'm understanding your question. Is
this a direct appeal from the initial decision?
This is not a direct appeal, no. This is uh a claim under the Q statute, Section seventy one eleven.
So So do we then review um this in the same way that you would normally review a direct appeal, or is there a different standard?
Uh the review for Q is uh uh i i the the two different parts of the test, whether there's error and whether it's outcome determinative are reviewed under different standards. Certainly whether there it has been uh a legal error, a clear and unmistakable error, is reviewed de novo.
Okay, this term clear clear and unmistakable error, where does that come from?
It comes originally from uh the agency's regulations. I i it dates back to the nineteen twenties. And in this and other regulations, when VA uses the term clear and unmistakable, what it means is obvious or manifest.
So how was it applied when it was simply a regulation and before it was uh in uh enacted as a statute?
It was applied exactly as as we suggest, and I think that is most evident in the look decision that the Veterans Court issued before Congress codified Q into the So it
was applied to subsequent rulings that changed the law as opposed to a mistake uh involving an extant uh uh rule regulation or law?
So it w it's not a decision that changed the law, right? Wagner didn't change the law. It announced what the law had been a at all times, as as this court has explained in case it was. So how was
how was Q applied when it was uh regulatory?
Uh the the look uh uh uh when there's a regulation that that violates a statute, is that your your question, Your Honor?
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Chapters
8 chapters
1
What is the legal standard of “clear and unmistakable error” in veterans’ benefits cases?
0:00–12:32
2
How does the Court determine whether a VA regulation conflicts with statutory law?
12:32–20:37
3
Why does the government argue that a regulation’s error is not subject to Q review?
20:37–29:02
4
What historical cases (e.g., Look, Wagner, Russell) illustrate the application of Q review?
29:02–38:01
5
How do the Justices differentiate between direct appeal and collateral (Q) review?
38:01–47:42
6
What are the arguments about the retroactive effect of invalidating a VA regulation?
47:42–55:36
7
How might Congress’s intent affect the scope of “clear and unmistakable error” claims?
55:36–1:05:02
8
What potential impact could a broad Q‑review have on the VA claims system?
1:05:02–1:15:18