George v. McDonough
Justia (with opinion) · Docket · oyez.org
Argued on Apr 19, 2022.Decided on Jun 15, 2022.
Petitioner: Kevin R. George.Respondent: Denis R. McDonough.
Advocates: Melanie L. Bostwick (for the Petitioner)
Anthony A. Yang (for the Respondent)
Facts of the case (from oyez.org)
Kevin R. George and Michael B. Martin are both military veterans who sought and were denied disability benefits several decades ago based on the straightforward application of a regulation. Since then, the regulation was overturned, so George and Martin sought revision of those denial decisions based on the “clear and unmistakable error” (CUE) by the VA.
The Board of Veterans’ Appeals denied the motions, holding that it was not clear and unmistakable error to faithfully apply a regulation that existed at the time. The U.S. Court of Appeals for the Federal Circuit affirmed.

Question
When the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, is that the kind of “clear and unmistakable error” that the veteran may invoke to challenge the VA’s decision?

Conclusion
The invalidation of a Department of Veterans Affairs regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief permitting revision of that decision based on “clear and unmistakable error.” Justice Amy Coney Barrett authored the majority opinion of the Court.
The “clean and unmistakable error” doctrine evolved over several decades. Its history reveals that this category of error does not encompass a subsequent change in law or in interpretation of law. Because the invalidation of a prior regulation constitutes a “change in interpretation of law,” this type of error does not encompass a claim like George’s.
Justice Sonia Sotomayor authored a dissenting opinion, arguing that the history of “clear and unmistakable error” is not so clear as the majority suggests.
Justice Neil Gorsuch authored a dissenting opinion, in which Justices Stephen Breyer and Sonia Sotomayor joined. Justice Gorsuch argued that the Court erroneously excuses an agency’s departure from its statutory commands.