George v. McDonough

(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. §1110

for 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.