>> we will hear argument first this morning in case 21-234, george versus mcdonough. ms. bostwick. >> mr. chief justice, and may it please the court. our nation's veterans benefits system is intended to be strongly and uniquely proclaim it. in this non-adversarial system veterans enjoy distinct procedural protections and review of otherwise final decisions for clear and unmistakable error, or cue, is one of those unique protections. it prevents the agencies 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 v.a. adjudicators misapply the terms of a plain statute but the government seeks to impose and a touch of conception to that general rule, the agency does not clearly there when when it enterits misapplication of law in a regulation. that cannot be correct. as this court has said over and over, and agency regulation has the force of law only if it is consistent with congresses command. the government cannot die the future of our separation of powers and its attempt to avoid are unsuccessful. ivh etiquette is directed to apply not only the agency regulation but also congresses statutes. when the regulation complex with the statute, the adjudicator cannot possibly follow those. but this dilemma created by the agencies own unlawful acts as not stop a later tribunal identifying and remedying the clear legal and that affected the decision nor is this legal air a mere change in interpretation.

v.a.'s regulations have distinguished between genuine legal changes that might work updating my benefits rulings and legal errors that entitle veterans to revision of the flawed ruling. furthermore, with the agency did could not even colloquially called an interpretation to v.a.'s presumption of sound is regulation track the statute most of the way and then simply lopped off the end of the sends a limiting the second half of v.a.'s two-part obligation. it's not difficult to call that an air and it is not difficult to say that denying mr. george's claim based on this regulation was clearly and unmistakably erroneous. i welcome the court's questions. >> we get to the substance of the merits of that, what is the posture of this case? would you consider this a direct review? >> no. i'm sorry, i'm not sure i am understanding your question. >> is this a direct appeal from the initial decision? >> this is not a direct appeal, no. this is a claim under the cue

statute section 7111. >> so do we then review this in the same way that you would normally review a direct appeal, or his or her different standard? >> the review for cue is that two different parts of the test, whether there's an air and whether its outcome deponent to do, reviewed under different standards. certainly whether there's been a legal air is reviewed innova. >> this term clear and unmistakable air, what does that come from? >> originally from the agencies regulations. it dates back to the 1920s and in this and other regulations when v.a. uses a term clear and unmistakable, what it needs is obvious or manifest. >> so how was it applied when is simply a regulation and before it is enacted as a statute? >> it is applied exactly as we suggest and i think that is most evident in the look decision that the veterans court issued

before congress codified cue. >> so it was applied to subsequent rulings that change the law as opposed to a mistake involving an extant rule, regulation, or law? >> it's not a decision the change the law. wagner didn't change the law. it announced with a live been at all times as this court has explained in cases such as rivers. >> how was trying to applied when it was regulatory? >> when there's a regulation that violates a statute? is at your question? >> guest. >> yes. so the look decision is an example of that. v.a.'s regulation imposed upon requirement that the statute did not. that's the very regulation this court held plainly invalid in brown versus gardner. in the look decision the veterans court said first there was a clear and unmistakable error my v.a. applying that unlawful regulation and also there was a further second clear and unmistakable error because

even under different clause in a regulation the veteran should a prevailed if that's an example but look to stop the only indication that that is how the cue senator before congress codified it. the government agrees with us that the russell decision from the veterans court is instructive. what russell said is that statutory or regulatory provisions, if those were incorrectly applied, that's a cue, exactly what we have here, the statutory provision extent at the time was incorrectly applied. >> thank you. >> you say that wagner didn't change the law, right? >> correct. >> but that's not the question. the question is whether there's been a change in the interpretation of the statute. there surely has come right? >> i don't think that is the question in part because the change in interpretation language from the agency regulation was not actually codified by congress. but more importantly get a look at why it wasn't codified.

that language appears -- >> i'm sorry. why does it matter whether it was codified by congress? >> because the court does had to get into. the statute does not have an exception for changes interpretation. what this court is doing is applying the cue statute. if the court is look at the statutory text, that exception is in interfere but even if the court wanted to look at how that language, what function that language was serving, is not the one that the government suggest. i want to first drop the courts attention to the entirety of section 3.105. that is the real v.a.'s regulation at the regional office level although now there's a corresponding provision for the board level cue we have here. you can see the 1997 version of that statute at page 16 of the appendix attached her opening

brief, the regulation as a whole covers many things other than cue. 3.105 is what deals with clear and unmistakable error. 3.105 be deals with difference of opinion for challenging and agencies decision. there are other provisions about severance or reduction of service connection. the preamble is not as a government suggests taking things that would have been cue and carving them out. it is first of all saying nothing and 3.1 05a or otherwise applies when you have a change in law or change in interpretation of law. what it's doing as we dimmest of this at pages 36 to 40 of her her opening brief and the government doesn't respond. what this has long done is it referred to a separate mechanism for changing or revising and otherwise final v.a. decision. there's long been this distinction between errors on the one hand, and changes on the

other. the government falls us and says your view of change in interpretation would include any errors. that's right. it's not meant to. these are two different things. if you look at the original, like the 1920 -- >> what sense does that make? usually you don't exclude things that are not covered in the first place. why would anybody have excluded something that wasn't an error at all? >> certainly, justice kagan. if you look at the original regulation, it had all the different mechanisms for challenging and otherwise final agency decision in it. it had cue. it at new and material evidence. a difference of opinion. it covered when there's discovered to have been fraud in a veteran seeking service conjection, and it told you what to do when -- service connection -- change in law or v.a. issue or interpretation thereof. what happened in the 1950s that change in law, change in

interpretation got separated out, put in its own regulation. it's now in 3.114 which tells you what to do when there's been a liberalizing law that cuts against the veterans favor. the reason that matters is you have to understand the words change in interpretation in that context and not in abstract as a guy wants to do. >> you think it's just like an unfortunate part of that, of something of -- >> i don't think it is -- >> i mean, nobody writes this provision in such a way to say change in interpretation is excluded from cue if that change in interpretation is not an error in the first place. i'm struggling a little bit to understand what your view of the history is that would produce that consequence. >> what i'm trying to highlight for the court, your honor, is that that's not what the regulation says. the preamble does not say this in an exception from cue.

what it says and again this is at 16 and eight appendix b to her opening brief, the provisions of this section apply except where an award was based on an active commission or omission by the veteran or there is a change in law or department of veterans affairs issue or change in interpretation of law, go see section 3.114, or the evidence establishes that service connection was clearly illegal. that's not carving those things out of cue. it's carving them out of section three .10 five as a whole. it's a cross reference. it's as if this is the situation you're in, here's where you go look. you still have to distinguish between what falls under cue and what falls under a change in law, change in interpretation but the latter one has consistently been understood throughout its history to mean a genuine change, a new act of congress, a switch from one permissible interpretation of the statute to another by the agency. when you have change, you go

back and update the decision and you say, okay, now that this is the law we are going to give the veteran, i just the veterans benefits going forward to comply with the law. >> what do you do with the general counsel opinion from 1994 which seemed to suggest or said decisions of the court of veterans appeals invalidating v.a. regulations or statutory interpretations do not have retroactive effect in relation to prior final adjudications of claims, which the government sites in the lower court cited as evidence of a common understanding, the russell case, as well as this and other understandings that they say are incorporated into the statute. so how do you respond to that? >> certainly. i don't think the government has actually relied on it, at least not very heavily in its merits briefing, , and there's good reason for that. first of all, it says that the

practice was an consistent, so it doesn't purport to identify a consistent practice. but moreover, inconsistency label is inaccurate. that general counsel opinion simply missed describes the holding of look and it doesn't otherwise .2, nor has the government pointed to, , any example of the v.a. or the veterans court pre-codification saying that when you have the situation we have here, a regulation that violates a statute, that that's not cue. there's no counterexample that they've identified. >> how about the broader context justice thomas was referring to, that what we talked about here is not direct review but collateral review, and the government says, therefore, the standard for relief should be higher because the implications are going to be dramatic. the veterans court to come for example, has said that doing this would impose tremendous hardship on the agency, and all of that's the reason for the high bar. how do you to all that?

>> i'll address the high bar issue first and then potentially the floodgates problem. it is a high bar. cue is much narrower than direct appeal. on direct appeal of veteran can raise all kinds of legal, procedural, factual errors that are not available for cue. >> can i just talk to there? i'm wondering how high bar you're saying it is. anytime a regulation determined to be an impermissible interpretation of the statute it seems to me you're saying that's clear and unmistakable air. and if it is not can you tell me what the delta is? >> i would agree with you. i clear and unmistakable error is one that is obvious or manifest. we do think any error of statutory interpretation so long as it affected the outcome falls within cue and that makes sense. that's . that's consistent with other high bar standards. >> how does that make sense? you could have as here 20 years later a regulation that abdullah has followed and that a court filing says that action is inconsistent with the statute.

you are saying you go back. you don't just do that going forward that you go back and retroactively give benefits all those years the agency relied on the regulation? >> yes, absolutely. that is what congress intended. the point is under the law, under the statute the bed was supposed to receive those benefits all along. we go back and we put him close to the position he would've been in. there isn't an interest payment. >> can i just follow up on what justice kavanaugh said? so at your position every single time the agency misinterprets a statute it's always clear and unmistakable? it seems to me like sometimes you have here, and here as justice kavanaugh said, you had 20 years of interpretation one way, angela the federal circuit point out that it made 1111 look illogical and awkward because it didn't have to do with the presumption of sound condition. all misinterpretations of a statute clear? >> we think they are but even if

the court thinks there are some statutory interpretation errors that wouldn't satisfy cue, this is that paradigmatic example. i want to address which you brought up about the supposed lack of clarity in the statute and that he is regulation. this is laid out most clearly in wagner itself. it's also laid out the pages 24 to 25 of the in the lsp amicus brief. before 1951 v.a.'s regulation track the statute. attack the statute word for word. it included -- it said agency had to have clear and let's unmistakable evidence indicating the injury or disease existed prior to acceptance and enrollment and wasn't aggravated by such service. that was section 3.63 of the code of federal regulations in 1956. congress codified the presumption of sound souno statute in 1958, again using that two-part formulation, existed before acceptance and enrollment and wasn't aggravated

by such service. three years later v.a. came back and what was supposed to be simply and administrative we promulgate and of its, no substantive change, no explanation certainly for any substantive change that might be in there and they simply deleted the end of the sentence. this is not an interpretation. this is not a considered interpretation. when wagner talks about it being somewhat difficult to parse it doesn't mean the language is difficult to parse. what the court in wagner was saying was this seems like a strange thing for congress to have done for exactly the reason you pointed out because you are presuming someone was in sound condition even though you are acknowledging they entered service with a pre-existing condition. wagner also identifies the reason for that, and it was because of this long struggle between the executive and the legislature with executive was playing games, was discharging veterans who had had no conditions noted on their entry to service and then saying that was a medical issue, and there's

also a long history of the v.a. telling congress don't include this aggravation keys, the burden and cargo say no, we want it in there. this was a very intentional act on the part of conquerors and no explanation for v.a.'s elimination of that. >> how did it happen? i mean look, do i have this correctly? please correct me if i'm wrong. you have a client. >> direct. >> if your client was sound at the time he enlisted, he's not sound now. >> correct. >> and so he gets money. >> correct. >> so let's see if he was sound when he enlisted. we have statute, and the statute says he is sound when he enlisted if a or, or be. or he will not be -- he is

sound, and less he is not sound. >> correct. he is not sound if a or b. >> correct. >> so we look at a period a was he had noted there not sound when you signed up. >> or the v.a. examiner had thought. >> noted it. that's not your client. >> correct. >> so is not sound under a period so now we look at b and b says as we really good evidence that he was really sick before he was excepted and the sickness was not not aggravated by his being in the service. >> i think i might have misunderstood your a and b. >> i probably -- i wanted to get this right in my mind, that if he is not sound when you sign up, no money. >> no. no, no, no.

>> well, wait. wait -- >> sorry. >> because not sound has a special definition. not sound, there are two situations in which he's not sound. the first says defects, infirmities, or disorder noted at the time of the examination. he's not sound if it wasn't that. was it that? no. >> no. >> okay. now there's a second way he's not sound, if he really was very sick when he was accepted but the sickness was aggravated during his service. >> correct. >> so let's see if he fits in b. and the answer is where not sure, but maybe we are, but regardless the regulation didn't copy the words and was not aggravated by service. >> correct. >> okay. and so how do somebody make that mistake? it's there in the statute. they don't put in the words and

was not aggravated by that service. >> exactly. >> because they're pretending that people were sound at the time they started but that really isn't true, what we have pretending and what it does by putin is it says if you were sick as as a dog at the timeu signed up, we're still going to count you as not sick as a dog if your disease was aggravated by service. so we're going to treat the aggravated people just as if they were really sick as a dog. >> and what's important -- >> wait, wait. see, i can get it mixed up very easy. >> i hear you. i hear your. >> but you have to explain so clearly that you produce the reaction when i read it the third time, which is how did it ever not copy those last six words? >> i really can't say, justice breyer. they did not pretty any sort of expiration when they change the regulation 1961. applicant said it correctly.

>> that's kind and not the issue. the issue is there was a regulation that said that and the question is what effect the regulation had. there's a statute that says the board is bound in its decision by the regulations. even without that statutory provision that seems like that's just what the board is supposed to do. now, here is a statute lays it out. you were bound by the regulations. you are bound regardless whether the regulations are right or wrong. so once you are bound by the regulation, how could it be possibly be a air let alone clear and unmistakable error for the board to do what they are commanded to? >> because the board was also commanded to follow the statute. you're not suggesting the board should have violated section 4004 at the time, now 7104. what we think is the board, sure, the board sitting there with both of those directives could not comply with both. the question is not was the

adjudicator somehow at fault take the question is can the court now look back and say -- >> but why isn't that the issue? you were trying to make this a lot simpler than it actually is. you have one interpretation of the concept of air, is it objectively erroneous. the government has another come was there and adjudicative air? we have to decide which one is a correct interpretation. how do we decide? >> i think you start with the text of the statute. i decision by the board is subject to revision on the grounds of clear and unmistakable error. that doesn't say the board has to have committed a clear and unmistakable error. >> there are two possible, grant me the are two possible interpretations. you think it's impossible to interpret the term error to me adjudicative air? it's impossible to use the term that way? >> in this context yes, i would say so. >> what is it about this context that is unique? >> the history of how it was understood before congress codified it. the program context in which we

understand congress intends to legislate for the benefit of veterans. >> is that a sound interpretive tool? >> i think it is but the court doesn't need to reach a because we think -- >> if we put that aside then i don't know much of left. >> we have russell. we have the decisions congress look to that says when statutory or regulatory provisions, not and, as the government would have, ask dan at the time were incorrectly applied, that's cue. we have the few go decision that's also cited in the legislative history say that you judge it is cue from the perspective of a later adjudicator looking at it. >> could you do this? there is a statute and assist any veteran who served in world war ii, it says $1000 bonus will go to any veteran who served in world war ii or in korea, okay? the reg says any veteran will

get the thousand dollars if he served in world war ii. they just left out korea. i don't know how but they did. and so someone who served in korea says read the statute. it says korea. i served in korea. don't i get the money? that's the issue so their point is, well, we had a reg that says world war ii. it is a anything about korea. they have to follow the reg. and you say? >> the fact that they had to follow the reg does not absolve them -- does not absolve the decision of being infected with clear and unmistakable error. if the jury is -- >> i'm not sure it is a nashua talking about things. supposes court issues a decision and it is completely wrong and it is later reversed but in the end room there are many lower

courts that follow are decision because that's what they're supposed to do. have they made a clear and unmistakable air? >> they had made an error that is correctable on collateral review. remember their sort of two questions. was there an air and water the consequences? so something may be in error under our view many different context of the question then is what result? >> can i pick up there on the question of remedy or consequences. let's posit for the moment that i agree with you the federal circuit read cue to nearly. unduly influenced by the regulation. i apologize, but this -- my time. count this against my time. and it unduly read it -- it didn't read the statute as it is now written. it read it influenced by the background regulation and to the point where it said even a

judicial opinion doesn't qualify in the circumstances. let's say we agree with you that, yes, that's a clear and unmistakable error. wagner was one. all right, fine. do we have to reach the question of remedy or could we remand it at that point back for the federal circuit to decide what the appropriate remedy would be? >> the remedy in this case? yes. we're not asking the court to reach the question. it certainly could and i'm happy to address it if the court is interested. but no, we think -- >> one thing we're sure about is the federal circuit analyze the question incorrectly. >> certainly. you could say when you have a regulation that contradicts a plane statute, that can be cue. i think it would also be natural for the court to go on to say, and that's what we have here. the question whether that was outcome to term it is a mr. george's case could be addressed on remand. >> are you aware of any supreme

court case or any case, because i can't think of one, but there must be one somewhere was a legal air at issue was there's a statute and it says you get money or something good if a or b, and in the air that was made was the reg writer left out b? i can't think of a case like that but there may be one in which case how the supreme court would behave would be quite relevant because usually there is sort of two sides to the argument. i don't know of an era that clear that i can think of. >> i'm not aware of one that fits that exact scenario. >> the other side might be. >> certainly it is clear in this court's cases going back to manhattan general equipment, to dixon, that when the agencies regulation contradicts the statute, that clearly it is a legal nullity. >> council, can we go back to your point that the statute is not about adjudicator air, it's

about error in the decision, that's the language of the statute? >> yes. >> an error in a decision, not who was at fault for, correct? >> direct. >> am i correct that the regulations say that if there is a material new fact that was in before the adjudicator, that that could be grounds for hq mvlsp -- -- that could be grounds for a cue? >> no, your honor. that is a separate type of revision. that's not clear and unmistakable error precise because the board didn't have those facts before at the time. it can we open -- >> so if a new materials that can reopen a decision, what you're saying is a new, not interpretation of the statute, but a new decision that a statute says what it says was no different than a new material

fact, correct? >> it's different in the consequences. when you have a new and material fact, you bring a supplemental claim. that's not available when you have what we have here. mr. george can't file a supplemental claim and say oh, there's this other provision. >> let's go back to the question of clarity. your position is very easy at chevron step two. if there's a change in interpretation or a new law, then you agree there's no cue, correct? >> i change from one legitimate interpretation to another? yes. >> or permissible. >> permissible, i'm sorry. >> but even in step one chevron there are some clear and unmistakable air is, i'm using the language year of the statute, okay, but it do think that there are some step one situations where it's not so clear and unmistakable, , meani,

in one case this court decided not so long ago, sas institute, i was at the center, on step one the court said one interpretation and four dissenters said another. so what do we do with that? this goes back to what justice gorsuch raised, which is i can genuinely see some situations where the error is not clear unmistakable even under step one. >> so i would say the relevant time is after that decision issue. certainly notwithstanding the reasonableness of your view of how the case should've been decided, once it was decided, if a lower court said i don't like that, i'm going to follow the dissent instead, that would be a clear and unmistakable air and that's what we have here. moreover, even if some of those

errors would not be sufficiently clear or unmistakable, the case that's -- that's not the case that is before the court. we had the agency, the government confessing their and say please and finally a regulation, it's wrong. >> so this goes back to justice gorsuch's point which is if we say some situations can be clear and unmistakable, you decide why this was in, or tell us why it wasn't. that would be enough for you? >> that would certainly be a helpful decision. we are asking the court to go further, but no, that would be favorable. >> thank you. >> thank you, counsel. justice thomas, anything further? justice breyer, anything? justice kavanaugh? >> i have a couple. back to the structure of how this works out, the government relies on the regulatory text before 1997 and says that was

incorporated into the statutory text and say the long-standing regulatory text to describe the scope of clear and unmistakable error reviewed by reference to the legal understandings that existed when the prior decision was rendered. i assume your response to that is the regulatory text is not lifted word for word into the statutory text, or am i misunderstanding? >> that's part one of my answer, is that it wasn't lifted into the statutory text. part two of my aunt is even if it had been it did not function as an exclusion of things that otherwise would of been cue and say these are no longer cue. it instead .2 different remedy. >> and on the office of general counsel opinion we covered that but you think it is wrong? >> in 19941, yes. and also congress did not initiate any awareness of it. >> on the congress awareness point, is are evident in the 115th congress thought any clear and unmistakable heirs would trigger retroactive award

of benefits back to the original time? >> yes, it's in both cue statutes that that's the remedy. >> and then on the floodgates issue, , you got cut off before you issued the question, you answered the question about the veterans court saying this would impose a pretty substantial strain on a system that is already extraordinarily strained. your response to that? >> yes. another two-part answer, , juste kavanaugh. .. these are benefits congress wanted these people to have

all the time from the outset. these are payments congress accounted for and said this is what we want these veterans to have so the fact that if it creates an administrative difficulty for them to come back to the agency and write the wrong that was done to them we don't think that's a problem under congresses statute >> to follow up on justice kavanaughs question, let's assume it wasn't quite a quantified and then let's change from one interpretation to another and even putting aside my prior question of why would that be excluded, just the language. the understanding of change and interpretation.doesn't that encompass both kinds of changes? in other words there is a change from non- error to a non-error. there's also a change from something that turns out to be an error to a non-error.

it's still a change and if you assume that standard is what was basically understood when they codified this language why wouldn't discount? >> it is a change in the abstract but that's not the relevant question. it talks about changes in law or changes ininterpretation . certainly when there's a change in law that's not something ... >> you have a rule that interprets the law, it was wrong but they changed it so that's a change in interpretation. that goes back to the chief justice's original question. >> i think the pairing matters because the government's reading of this full preamble, both parts of it is it functions to identify some less serious errors that we're not going to call. that's not what it's doing and one of the ways we know that's not what it's doing is when there's a change in law nobody would say the original decision is erroneous.

it's identifying things that were never there to begin with. how language was used dating back to the 1920s and when congress codified this concept, i believe it's at page 7 of our opening brief. when congress put this into the statute for 3010, it referred to a change in and ask for a change in va issue so it's making clear when it's talking about changes in interpretation it's at the regulatory level. >> justice barrett. >> thank you council. mister yang. >> mister chief justice and may it please the court. clear and unmistakable error is not a mere error. congress provided for direct judicial review under appropriately planned appeal to correct errors like that. this is different, clear and unmistakable error serves the function of allowing for collection on collateral review and it's a very

specific type of error on a legal context that existed at the time of the decision. an error no one from that framework could dispute. the board's application of regulation that congress itself and require the board to apply does not qualify . the phrase clear and unmistakable error suggests a highly unusual error, more egregious than clear error and an adjudicator has not said to create: clear error by doing something it's required to do. when congress enacted 711 it was already a term of art with an established regulatory meaning so 60 years now regulation governing clear and unmistakable error cannot be based on a change in interpretation of the law. that's exactly what we have here. the interpretation of section 111 in the a regulation changed when the va and federal circuit reinterpreted that provision to require more than the regulation did.

general counsel process opinion 94 held the invalidation of a regulation as a change in interpretation that cannot constitute clear and unmistakable error.was applied also thousand times before congress codified it in 97 and in what petitioner is suggesting is a radical change here, notwithstanding the text eliminated changes in interpretation. they think changes in interpretation is fair game even though the board was required to apply . we believe that's incorrect and a tradition going back 60 years supports our position . >> mister yang, you seem to suggest or argue that congress codified the prior understanding of the cue and there seems to be disagreement on the other

side about that but how can we be clear that congress codified yourunderstanding , whatever that is of c.u.e.? >> you could have two principles. i guess two or three principles. one, this is a highly usable term, not a term that exists elsewhere, clear and unmistakable error that it had existed in the regulations for 35 years before 1997 and when congress adopts such a very unusual for this is a term of art from a regulatory context. this court has recognized intends to take up with that term of art. the term had been understood as opinion 94 suggests as well as the berger decision which site set precedents of the says a new rule of law and later statutory keys could be the basis basis for c.u.e. and c.u.e.'s only

concern with the law as it existed at the time. russell or instance which is cited in the legislative history was also the on march decision that on the subject. said that c.u.e. is where reasonable minds can only conclude the original decision was really flawed at the time it was made and must be an error in the prior adjudication and the relevance error is a statutory provision access at the time or incorrectly applied. all that points. slowly in one direction. and i think precedents as opinion is a nice way to highlight that. that precedented opinion addressed this issue here and it arose in a high-profile context . this court in brown versus gardner invalidated a va regulation concerning liability when an injury at is incurred through treatment at a va facility. it did so just as a federal

circuit had done soas a veterans court had done so. while search was pending , the va issued its opinion. how do we deal with and validations of regulation and it concluded this is a change in interpretation law. the veteran in gardner, in their brief cited precedents opinion 94 as a reason why their opinion was right saying the va says this will apply retrospectively don't worry about it. berger, the board applied precedented opinion 994 about a dozen times in various contexts. half of it involved invalidation of regulations. this is well entrenched in the system. >> if i might cancel the premise of your argument is a two-step. first we have to assume congress adopted words of regulation it didn't choose to. it took some but not all and we have to take your presumption that was to

shorthand, all the rest came with it and secondly we have to i think understand the regulation not changes in interpretation of law to encompass judicial interpretations. and what do we do with professor mascots i make this brief in which he quite rightly points out we don't normally think of judicial interpretations as changes in the law? in fact in rivers we said it's not accurate to say a change in the law. the judicial interpretation of congresses statute amounts to a change in the law that previously prevailed . >> i think that misunderstands the question. >> the reframing of it is incorrect. we're not saying the law has changed. the law has meant what it's always meant. whatwe're saying is there was an earlier interpretation . >> there hadn't yet been by any court in the law.

and i guess that takes me to my second question. okay, if an agency interpretation and i assume that would mean not just a regulation but a litigation position . maybe you couldclarify that . but for purposes of my question it doesn't matter. we have a regulation. it's clearly wrong. you think this one may or may not qualify, maybe the federal circuit court will, we may never get there.but let's say the regulations says that if certain standards for disability applies in a segregated army differently based on race, that couldn't qualify as a clear and unmistakable error? >> know that there are other ways to correct that error . >> congress couldn't later authorized and didn't later authorize the court of law to correct that clear

unmistakable error. two different standards of disability based on race. >> if you're talking about what existed in 1997 when congress enacted see you, petitioners argue and this is case 43 that congress did so knowing there's direct judicial review. >> i understand that. that's not my question and you know it's not my question . put a later course correct that or not and under your interpretation the answer is no. >> it could do that a perspective way. the difference for collateral review as opposed to filing a supplemental plan ... >> i'm talking about collateral review. >> but there's multiple pathways for this to be done. >> last question then is so we agree that error could not be corrected. that would not qualify as a clear and unmistakable error. okay.

last question is do you agree we should apply to veterans? >> we don't think veterans can apply here. >> you think it's a sound cannon? >> i would talk about the origin, i have this experience at my last argument. i prepared to talk about the origin of the veterans cannon . we're not challenging the veterans cannon but just accepting it as is doesn't apply for three general reasons. >> the government doesn't contest that it's a sound cannon. >> we're not going to view that in the case. we don't have to dispute it because i think there's three reasons it wouldn't apply. one congress used pre-existing term with a meaning and the fact that term in the abstract might be capable of some different meaning really doesn't what congress intends was here which was to take up the body of existing regulatory law.

second,clear and unmistakable error can cut against veterans sometimes . it's not just errors that always correct or favor the veteran, they can cut against the veteran and if you look at the regulation that existed and this is petitioner's brief and we produced it back at 17 a, severance of service connection applies to clear and unmistakable error. now it's different and there's more protection but the basic standard cuts both ways so there is some context where veterans might be on the other end of a clear and unmistakable error case and when you have that kind of one set and doesn't make sense to apply the veterans cannon. this is a reticulated scheme where there's a balance of policy and different avenues congress provided. congress provided for direct review. that's a generous 180 day period but if you don't appeal there's finality inthe position . >> except counsel it created a whole lot of exceptions to finality andthis is one of them . so please let me finish my question.

this is one of them. we know that congress rights statutes giving exemptions that it doesn't give in other barriers because it does a for veterans. and whether you believe the veterans cannon applies or not, the one thing it one can say is you read the way congress wrote it. and if it rooted in favor of veterans you don't look for reasons to exempt veterans from the coverage itgets . going back to justice thomas's question, i've read all the cases that you have given me whether it's berger, wagner, i do know that it's a little bit unclear but it favors petitioners side more than it favors yours. the veterans court there said there were 2 cues. it ended up deciding the

second was more the ground for its decision but it read it contrary to what you're saying it said. none of those other cases you cited dealt with this situation identical to this one. they dealt with situations in which there were changes in law orchanges in permissible regulatory interpretation . the only thing that favors you is what justice kavanaugh pointed to which was that the council decision but there is no evidence that congress knew that when it adopted this standard. and that veterans council's decision admits that there are some disputes about what this means. so i don't take it as much. telling us what it thinks it means buti'm not sure that tells mewhat congress thought it meant because it never referenced it .

having said all of that . i don't understand how you can claim that clear and unmistakable error in the decision made in the statute in the interpretation of the statute even if it was compelled by regulation top is discounted. error in the statute or error in the regulation. this isan error in applying statutes . so why isn't that clear and unmistakable? or potentially clear and unmistakable? >> there's a lot of baked into that question. i can, let me just try tackling some parts of it. i think you're referring to look which had you think may favor the other side. that was in 1992 decision that was specifically

addressed in precedents of opinion 994. it's never been cited ever in 30 years by a court for its clear and unmistakable error analysis, not because it wasn't presented. we precedents of being cited in berger basically follow the same kind of principle about new interpretation of law bycourts . that was what existed. it existed in board decisions explicitly following the precedent opinion and there's no indication that congress worked any cases except for russell. it didn't site all these veterans court opinions. the precedent opinion is not only did it exist, it's published in the federal register. register 27309 expressing that holding. there's no reason to think congress given the high

profile context in which precedent opinion 94 of rows including a case in this court, the ones who invalidated aba regulations for the first time on judicial review that congress would have thought there was anything but this would apply specifically , there's no reason to think it was a better case . >> maybe i'm the only one thinking but to address this quickly you make two assumptions. assumption one, the words are clear, unmistakable. it doesn't say evil. itdoesn't say the worst error ever made . it is clear, unmistakable. assume the second thing and the second thing is what i say to groups which you you're lucky if you haven't heard it but i sayi'm not one that pays a lot of attention to the words . i do a paid attention to them more than you think and if it says carrot you cannot say that means a rabbit. a carrot does not mean a rabbit and you have to follow the statute. that's background. now why can't i write this opinion? it says clear, unmistakable.

everybody wants this court to define clear and unmistakable. i don't want to define it. this is the most clear and unmistakable error i've seen in 40 years . i can't think of another one. what is it like? i've already given you two examples. if i give you a statute that says i give you $1000 if you serve in the philippines or korea and they leave out korea. or to put it in these terms it says you count as sound. i'm not saying you are sound but you count as sound. unless a or b. a happens to be that they know you weren't sound and they didn't do that here so let's look at be and be says you weren't sound, you are sick at the time but the government has to prove that the service didn't aggravate it. that sounds like the korea part because they left that out just like they left out korea and why i say this is

clear,unmistakable . the person who ever did this just didn't write that into the regulation. very simple.he had no reason for not writing it in. even the government with its tremendous resources has not been able to find the reason why they would have let that out. it was an accident. but it's sure clear andit's sure unmistakable. what's wrong with that opinion ? >> i got four things to discuss.you talk about the standards. >> talk about it as you wish and as briefly as you wish. >> the application here we addressed in our brief and i'll leave it there but i don't think this is at all a clear resolution of the question. there are twostatutes that involve aggravation . this statute was internally

self-contradictory. you don't look to whether you are in sound condition at the time of entry by weather assuming that you weren't there was aggravation after so there's a second statute involving aggravation. they construe the two at the same time. we now conclude the better interpretation is the one we currently have but i don't think it's anywhere clear because often times when you find statutes. >> just assumed with justice breyer, just assume the regulation was clearly and unmistakably wrong. the regulation was clearly andunmistakably wrong . now the question is is the decision based on that regulation clearly and unmistakably wrong? the premise of the question is that once you answer the first us and the second as well. the premise of your argument is there's a leak from the first to the second but you have to justify that we so how would you justify it ? >> we look at the text. we look at the way it had been interpreted in russell which focuses on adjudicatory

error . let me start with that. 7111 talks about a decision by the board. it's the decision that's the focus. the next sentence says there's such an error, exactly. it's an adjudicatory. the prior decision, that is the adjudicatory decision shall be reversed or revised. it's not the regulation. that's a separate thing done by aseparate entity . secondly russell explained the review. >> why is it important it's done by a separate entity? you're suggesting the board did nothing wrong here and that's right. but the va as a whole west assume what justice prior to do something right. what is the focus on the boards decision rather than the va decisionmaking as a whole ? >> i think why congress would have ones that, the focus has always been on the board.

if you look at russell russell talks about c.u.e. being a reasonable mind could only conclude the original decision was flawed. look to the regulations and statutes at the time to decide that an error must be in the prior adjudication such that the prior decision is revised. >> the statute speaks about the secretary making that clear and unmistakable error. >> i mean, the statute. >> there's two provisions at issue here. 50 1:09 am i believe is what you're talking about. assess the decision by the secretary under this chapter . even the other side if you look at their pages 5 to 6, they explained that is the regional office because that is a delegated decision to the regional office . but the second sentence of that is if the evidence established the error of prior decision shall be reversed. >> this is the decision of the secretary. >> the only decision that

we've seen ... >> given by the secretary, section 8. >> yes, although that's true for. >> but is all the from the secretary. board exercises delegated authority. >> yes. >> i guess i'm still stuck with justice kagan. i'm not sure why it makes a difference. and maybe the board's decision was justified in some sense. it wasn't legal. try to comply with the regulation. it had two competing statutory demands of which it disobeyed however. i.e., it clearly and unmistakably air on the application of that benefit but that sought to abide rule has to follow its regulations . it did its best job, i don't

doubt it and is in some sense justified this decision you could say as we do with lower courts for trying and struggling to interpret the statute can wrong states clearly and unmistakably wrong . >> that's the conclusion. the question is what is clear and unmistakable error and clear and unmistakable error. >> agree for purposes of this line of question we were taking the interpretation regulation was clearly and unmistakably wrong. >> i didn't understand. there is a distinction between the regulation and the education. and the decision that's relevant is the adjudicatory decision. >> i understand that. my question was counsel, did adjudicatory body has two options. one follow law that's pretty clear on itsface , consistent with the regulation. another law that says follow the regulations.

it has to choose. i don'tfall it. it shows one rather than the other . it may in some sense the understandable, justified maybe even but why can't that be fairly described as clear and unmistakable error to the extent it rests on his analysis depends upon a clear misinterpretation of statute as justice breyer outline. we would for example say with respect to lower courts this came to the judicial system say we are friends on the10th circuit court try their best . we noted in their last but we interpret the statute to plainly mean something very different. there was clear and unstable. >> don't think that be a natural way to say. you would say that was error. >> we say all the time that the plain language ofthe statute for baseball or courts opinion . >> clearly and unmistakable i'm sure i can find those. >> i think talking about

chevron step one , let me give you an example. a court recently decided a case called babcock. in fall dualstatus military technicians .you weren't alone the center on the statutory construction case. >> i must have been wrong. >> i don't think you were clearly and unmistakably wrong. you found persuasive the surface decision in a step one decision came before all the other courts that have decided against it in the context the social security administration had to decide what do we do with peterson before the court reversed or abrogated pearson . a half, there's a case called mitchell versus: 809. where the eighth circuit said no, you have a provision about changing interpretation of law . you didn't have to apply our decision in peterson retroactively with respect to close ssa prospectively you do but not retroactively .

there are remedies, the remedies are multitude of this. you can appeal. if you don't appeal and if you feel you can get back to the date of your application. if you don't do that there's a low bar forsupplemental application you just have to be new and relevant evidence . you get a new adjudication under the new understanding. you can seek secretarial relief for administrative error but what we're talking about issomething very different. collateral use going back. here is 1977 . where the provision had existed for 25 years before anyone had any problems because the provision is an unusual provision . if congress into to add an entirely new claim to dig up decades work? the va estimates there are 16 million denied claims. each veteran could have more

than one claim. they could have a backup for ptsd but there's about 16 million of these claims. if you start saying we're going to go back and there's been a number of regulations that have been invalidated, were going to go back indefinitely where the va is adjudicating 1.4 million claims a year, you're going to add a new claim. maybe they can bring prospective claims but congress had reason to be cautious here because whenyou add to the system you add new claims that didn't exist before in the regulatory scheme . it threatens the timing of everything else so we think our interpretation. first of all, if there's not a binding interpretation you need tohave an agency change or decisions aren't anything, they're not unprecedented, they're not binding . you can't appeal them but if you have a regulation, if you

have a regulation that congress required the board to be applied in its adjudication so the decision of the board, the same decision we're talking about on review is bound by the regulation . and that context it may well be error.you can correct it on review. we don't think it's clear and unmistakable error with an unlimited timeline. >> and your argument about what congress thought as opposed to the structure and i understand your structural argument aboutcollateral view and that's different . i just want to make sure i ask this question in precisely but was there any congressional suggestion that this situation and in other words a regulation that had been in existence before his or declared invalid itself be the trigger for retroactive benefits, are you aware of anything one way orthe other . >> neither way. i'll recently inferring from the state of play that existed in november 97 when congress enacted thestatute . >> and don't you think that's odd? we can't figure that out now

but would this have been a big issue. boy this is going to be a big hit for the reasons you say. >> seems like it would have been. we can't point to something áand some members of the court don't even look to legislative history but what i can say is the context in which this issue arose an opinion 984 was a significant one. it was while surface pending in the brown versus gardner which is the first court decision of this court i believe on direct review to invalidate a regulation of the va as consistent with the statute. >> missed spotswood said you didn't plan it up so muchin your brief. >> we started it as being followed by berger . and we made a certainly the court of appeals relied on it and we rely on it earlier. we had to make some judgments about what to argue to fit in the free. >> just to summarize what you're saying i think is if congress had wanted the retroactive benefits for this

kind of situation we would expect some indication somewhere, is that wrong? >> i'm not sure you need a clear statement. i think what the presumption is is when congress takes this novel turn, clear and unmistakable error that doesn't exist elsewhere and exists in the context that congress is codifying it is presumed to take the old soil with it and it doesn't require congress as we like this grass and we like this soil. you take the whole thing written large. >> ms. bostwick says the soil is not all in your favor i guess and therefore you go back to trying to parse the terms rather than just taking that phrase as a whole and pickingup what comes with it . >> the only thing they have for that is the lucky decision which which justice sotomayor was discussing. >> to use a general counsel opinion. >> general counsel was after

look. look has never been cited ever since it was issued 30 years ago for clear and unmistakable error on principle. if you thought there's some tension between the president opinion andlook , someone would have brought it up never had occasion to decide if it would be clear and unmistakable error if the agency was found by regulation because in that case the agency can apply the regulation properly and the court said the board is not free to ignore the regulation and therefore the error exists in application of law that previously existed at the time. doesn't result i think the answer for petitioners and when you look more broadly look at 994, look at theboard decision , i think congress can be assumed to have brought that soil up with the term. >> thank you mister yang.

>>. >> you mentioned a third path. there's direct review which gives you prospective benefits, on collateral review that if it applies can get you attractive benefits you say it doesn't apply here and you said secretary review . >> there's actually four types of things. direct appeal gets you. >> i'm in the supplemental claim. >> supplemental claim which low bar of new relevant evidence. sometimes it's retrospective of the year if there's new below a new law but it's limited and its retrospectively. >> is that the real thing? >> it doesn't, a lot. it's left in discretion. so the secretary would simply decide not to act on it. >> then on the hardship question is stuff for us to figure out this and this happened yesterday too.

how much of a hardship will this really be in the veterans administration, veterans system so to the extent you can document this in 30 seconds i would appreciate hearing what you think would happen. >> it's hard for us to document it but i'll give you a few hints of what we think the issues might be. there is no timelimit on this. veterans or survivors are alive goes back indefinitely . you're looking also to pass now decisions. this is a2003 2004 that was only raising 2014 . past decisions, we have a comprehensive search but we've identified 14 or 16 decisions that invalidate relations in various contexts . that can have a cascading effect when were talking about 16 million adjudicated claims. we don't know what subset that is but it could be substantial. >> and you're looking prospectively what might happen in the future with

respect to future. and of what is congress when it looked at this in 1997, it already had before it direct review. you would expect if there are errors like this that like a systemic error, someone's going to bring it up on review. congress provided for that and if you forfeit your rights congress provided for finality, in va board decisions, what a very narrow exception that feedback on top of a very narrow applicationduring the regulations . >> justice barrett. >> thank you council. >> of those 14 cases counsel, of those 14 revelations invalidated how many were on step one and howmany on step two . >> i just don't know what i will tell you that i don't think there is a much of a

distinction here because the theory that they have for chevron step one is ambiguous therefore you cannot reasonably conclude otherwise that the theory onchevron step two is that the agency and not reasonably construe the ambiguity so if you lose on step two , it's also because you've acted unreasonably. under their theory so i don't think there's any real distinction.their theory as my friend suggested coversall errors . all in validations and that is a seachange from a statute that has existed in its present form for almost 60 years or sorry, regulation and statute for almost 60 years. >> thank you council. remodel, ms. bostwick. >> i have a few brief points out that they can remodel but first i want to correct a handful of mischaracterizations from the government. first my friend on the other side spoke a great deal about the availability of direct review. that was not available to

mister george or to any veteran until 19 the . there are many veterans received clearly erroneous decisions and did not have the ability to challenge those at the time. second, in speaking about supplemental claims there was a suggestion that one could bring such a claim with cumulative evidence or with a legalerror. neither of those is correct . it's available only for new and relevant evidence formally known as new material evidence. i think that's just a mischaracterization of that form of relief and third in the mitchell case that my friend on the other side referred to, primary holding there was that mandamus was unavailable. because reopening in the social security context is discretionary remedy and of course mandamus is not available to order relief that is not mandatory. the reference in that decision to the changing interpretation language is extremely obscure and sheds no light on what the court was thinking let alone what

congress in 1997 when it looked to the social security context as an analog. there was a reference to clear and unmistakable error as a highly unusual term. i don't think that's correct. it's a term that use as you may have noticed in multiple contexts in veterans regulations. for example in the other regulation that's at issue which talks about clear and unmistakable evidence and va in that clear and unmistakable evidence regulation in section 3.6 3b had an explicit definition, clear and unmistakable means obvious or manifest. that's exactly what we argue it means in clear and unmistakable error context as well and obvious or manifest error that's consistent with all the free codification case law including russell which talk about errors of statute or regulatory application is also consistent with how the standard is understood in

other contexts and other demanding standards. for example the clear error standard. when you have an error of statutory interpretation that is a clear error. that suffices likewise in the mandamus context, a petitioner must have a clear and unmistakable right to the rent and an error of interpretation counts. among other places you can see that in pc heartland. abuse of discretion review, violating a statute is an error of law account as an abuse of discretion and law of the case uses the clearly erroneous formulation and includes statutory error as we see in the christiansen case so even though this as an established meaning in the veterans context it's a meeting consistent with other demanding standards of review . on reference to change in interpretation even if we think that it's relevant here and that it was somehow

brought into the statute , they haven't identified any instance of calling what we have here, mainly a judicial ruling saying this regulation was plainly invalid or even anything that came before was invalid . calling that change in interpretation. the fact that this court in lundell when it overruled munro and found stare decisis met referred to the prior decision as an error. there was a quote to the earlier decision which likewise involves overruling three of this court's prior precedents and themes those precedents not a correct statement of the law so we think it is actually quite natural to understand this kind of change as identification and correction of an error and not merely a change in interpretation. i want to address also binding arguments. this idea that there's something special about a regulation because the

regulation binds the board. that's not accurate either. if you look at section 71 04c which is the provision they rely on, the board is not just found by regulations and by statutes. is also bound by for example presidential general counsel opinions so the effect of the government's argument is that if the general counsel issues of presidential opinion that is contrary to a statute and the board relies on presidential opinion denying benefits, that can't be too. it can't ever be cute and i think that's also an important thing to understand. the government's position excludes all decisions that are based on regulations no matter how wrong they were from q and there's no reason for this categorical

election. this is about 25 minutes. >> good morning everyone and thank you for joining us. i'm the chair of the iowa democratic party and i'm joined by scott brennan who is our member on the bylaws committee. we are going to make three statements and then open up for questions. this morning