Bufkin v. Collins
Oral argument transcript · No. 23-713 · October Term 2024 · argued October 16, 2024 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Melanie L. Bostwick, Washington, D.C., for the petitioner
- Sopan Joshi, Assistant to the Solicitor General, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument first this morning in Case 23-713, Bufkin versus McDonough, Secretary of Veterans Affairs. Ms. Bostwick. ORAL ARGUMENT OF MELANIE L. BOSTWICK ON BEHALF OF THE PETITIONERS
Melanie L. Bostwick: Mr. Chief Justice, and may it please the Court: In Gilbert, one of its earliest decisions, the newly created Veterans Court recognized both the importance of the benefit-of-the-doubt principle and the difference between reviewing findings of fact for clear error and reviewing VA's application of the approximate balance standard of proof as a matter of law, but the Veterans Court soon strayed from that understanding, and by 2001, the court had declared that the agency's approximate balance assessment can be reviewed only under the deferential clear-error standard of 7261(a)(4). Congress responded by changing the Official 1 statute. It directed the Veterans Court to take due account of the Secretary's application of Section 5107(b), the benefit-of-the-doubt statute, and that new statutory command, unique in administrative review, directed to a specialized Article I tribunal reviewing a uniquely pro-claimant agency process, must be given effect. Petitioners have provided an account of Section 7261(b)(1)'s plain text that gives effect to all parts of the statute and allows for the meaningful and independent judicial scrutiny that Congress intended. Yet the government insists that the statute not only requires nothing that wasn't already required by Section (a) before 2002 but also requires the one thing we know Congress didn't want. Under its view, the Veterans Court does not even look at the agency's benefit-of-the-doubt rulings unless a -- so long as no factual finding specifically challenged by the veteran is infected with clear error. That is also what the Veterans Court and the Federal Circuit held in these cases. Their decisions render Congress's statutory Official 1 amendment entirely superfluous. They mean that a uniquely generous standard of proof is reviewed in a uniquely ungenerous way. And, if upheld, they will allow the agency's non-compliance with its statutory mandate to continue unchecked. I welcome the Court's questions.
Justice Thomas: Would you spend a minute or so explaining how your approach would work in comparison to the government's approach?
Melanie L. Bostwick: Certainly, Your Honor. So our view of the statute, it starts with the text. So the text is "in making the determinations under subsection (a)." What are the determinations that the Veterans Court makes under subsection (a)? It is looking at the particular aspects of the agency's order that are challenged on appeal, so deciding whether to affirm, reverse, or vacate those decisions. That's the determinations under subsection (a). In making those determinations, just like the Veterans Court, if it's otherwise inclined to reverse or vacate, under (b)(2), it has to do a -- a -- a check to make sure that the -- any error was, in fact, prejudicial. Official 1 Under (b)(1), if it's otherwise inclined to affirm, it nonetheless has to do a -- a check and make sure that the decisions that it is about to affirm complied with the -- with Section 5107(b). That is the benefit-of-the-doubt statute. And the benefit-of-the-doubt statute, in turn, has two mandatory requirements. It requires the VA to consider all medical and lay evidence and information relevant to the -- the issue, and then it requires, if there is an approximate balance of positive and negative evidence on any issue, that the veteran receives the benefit of the doubt.
Chief Justice Roberts: But -- but --
Melanie L. Bostwick: So our view is --
Chief Justice Roberts: Go ahead.
Melanie L. Bostwick: Thank you, Your Honor. Our view is that this is something the Veterans Court has to do in every case, that it is not bound by party presentation, and that it is a non-deferential review.
Chief Justice Roberts: But it's a pretty unusual law, right? It says that the administration shall take account of, take due Official 1 account of. It -- it doesn't seem that they're changing the legal standard at all. It just says sort of be more careful. And to take from that instruction some change in the legal standard of review, I think, is -- is quite a leap.
Melanie L. Bostwick: So we don't think that it was -- was changing what the standard of review should have been. That's clear, for example, as to -- to any aspect of the Secretary's application of Section 5107(b) that presents a legal question. The government agrees with us that there are at least some of those. As to this approximate balance piece, our view is that the Veterans Court, as it recognized in its -- its Gilbert decision, was supposed to be reviewing that as a matter of law all along. It wasn't doing that. It was doing this narrow clear-error review. And so Congress came back and, you know, it thought about, well, should we just change the -- the standard of review for factual issues? No. Why not? Because that wouldn't fix the problem. Instead, they -- they took this more direct approach. Official 1 It is unique, Your Honor. This is a -- this is a unique court reviewing, you know, one uniquely pro-claimant system. So it -- it makes sense that Congress would do something sort of sui generis here.
Justice Jackson: Can you be a little bit more specific when you say it was supposed to be -- the court, the Veterans Court --
Melanie L. Bostwick: That's right.
Justice Jackson: -- was supposed to be doing that all along? What exactly is the "that"?
Melanie L. Bostwick: So the -- the "that," I think it's most helpful if -- if we look at Section 5107, and that is at Pet. App. 93a. So -- so, again, Section 5107(b) has these two requirements. It obligates the agency to "consider all information and lay and medical evidence of record," and "when there is an approximate balance of positive and negative evidence [on any material issue] ..., the Secretary shall give the benefit of the doubt to the claimant." Our view is that before 2002, under subsection (a) of Section 7261, if a veteran Official 1 presented an argument that the Secretary had not complied with this statute, the Veterans Court was supposed to be doing that. It was. As to this particular category of Section 5107(b) errors that is about the -- the review of was the evidence actually in approximate balance, the Veterans Court was -- was only looking at whether there had been a clear error of fact and not whether -- having, you know, assessed the credibility of the evidence, the persuasiveness of any piece of evidence, and -- and sort of put those on the evidentiary scales, whether the Veterans Court had correctly judged if there was an approximate balance or if --
Justice Jackson: And you say no -- and you say no -- no deference should be given to the Veterans -- to the administration, to the agency, with making that determination?
Melanie L. Bostwick: That's correct. That is a -- a question about whether -- it's a legal conclusion about the state of the evidentiary record, was it sufficient to meet the applicable standard of proof. Here, you have this kind of unique Official 1 standard of proof, approximate balance, but like other standards of proof, the court should be reviewing it de novo.
Justice Kavanaugh: Wouldn't you expect that Congress, if they thought that the standard of review was wrong, instead of saying take due account, would have said review de novo?
Melanie L. Bostwick: That might have been a clearer way to indicate this, but I -- I think what is clear is that Congress put this in a -- an entirely new separate provision. They didn't simply adjust the -- the standard of review for facts. We think that's -- that's right because this isn't a factual question. And -- and what they did was they took a part of the statute that was already there. (b)(2) had already said take due account of the role of prejudicial error.
Justice Kagan: Well, how could this not be a factual question? I mean, I could understand it if you were looking at a decision by the Secretary or the Board where they completely ignored the benefit-of-the-doubt rule Official 1 or where -- or where they gave the benefit of the doubt to the wrong party. Then I can see your saying, well, look, they made a legal error and that's subject to de novo review. But assume that they do that. Assume that they just say, you know, we don't -- we don't see that this case is in equipoise, so we're not giving the benefit of the doubt to the claimant. And then the court takes another look at it. I would think that what the court is doing is to evaluate how the Board has evaluated evidence, weighed evidence, contrasted one party's evidence with another party's evidence, decided which is the more credible. All of that sounds like typical factual issues, factual determinations.
Melanie L. Bostwick: So there -- there are certainly factual determinations underlying it, and we agree that -- that the -- the Board's assessment of -- of credibility or -- or persuasive value or probative value to any given piece of evidence should be reviewed deferentially, just like it is in other sufficiency-of-the-evidence challenges. But the Official 1 ultimate question that contrasts between the party's evidence, that question is -- is traditionally reviewed as a question of law. And we think the same would apply here. And I -- I can give Your Honor an example of when there might be, for example, no clear error but, nonetheless, an -- a legal error in applying the approximate balance standard. If -- if the -- and this is a simplified example, but if the agency has before it two medical opinions. Let's say the -- the question is, is the veteran's disabling pain linked to a gunshot wound that he received in service. There is one medical opinion that says it is, one medical opinion that says it's not. The agency says: Both of these are credible and -- and probative, but, nonetheless, we're going to go with the opinion that says no nexus. That wouldn't meet the clear-error standard of review, right, because, under clear error, if there's two permissible views of the evidence, it can't be a clear error. But it would be, in our view, a violation of the approximate balance standard of Official 1 proof. You have two competing opinions that the agency has credited. You'd think that stands in approximate balance. And that's the kind of judgment that --
Justice Sotomayor: I'm sorry.
Justice Alito: No, I don't understand that at -- at all because, if the administration said the evidence is completely in equipoise, then they would have to find in favor of whichever party did not have the burden of proof on that question. And it -- sure, it would be a legal error if one party has -- you know, one party has the obligation to prove a fact by that fact, you know, whether there's a linkage by a preponderance of the evidence. If the -- if the court or the administration doesn't heed where the burden of proof has been allocated, then, yes, that's legal error. But, if they find -- that they say that the -- the -- a particular burden of proof has been satisfied or has not been satisfied on a question of fact and then there's an appeal, the appellate court determines whether it was clear error to apply the applicable burden of Official 1 proof in the way that is necessary in that situation. So I don't see any incompatibility. If we view the burden -- the -- the benefit-of-the-doubt rule as equivalent to the allocation of the burden of -- of proof on -- on a certain issue, I don't see any incompatibility between that and ultimate clear-error review.
Melanie L. Bostwick: So I -- I think the example I gave is -- is an instance in which the -- the Veterans Court would find no clear error because there is a plausible basis for finding a lack of nexus if you have one, you know, credible medical opinion in the record that says that. But there's, nonetheless, a failure to apply the approximate balance standard of proof. I do want to be clear that we --
Justice Alito: No, I think it would be a -- it would be a mistake, it would be a legal error if they said, we're disregarding the fact that the claimant was entitled to the -- the benefit of the doubt in the proceeding before the administration. That would be a mistake in applying the applicable law. Official 1 But, if they apply the applicable law, then what is the problem with reviewing the finding under the clear-error standard? Do you agree that that would be appropriate?
Melanie L. Bostwick: I -- I think that the finding is reviewed for clear error, but the application of the standard of proof is reviewed de novo. This is how sufficiency of the evidence works. An example would be a -- a judge reviewing a -- a motion for judgment as a matter of law. There's a measure of deference in there to things like credibility and persuasion. In the JMOL context, it's -- it's built in through inferences. Here, it would be based on the explanation that the agency has given about its credibility judgments and persuasive judgments, which the agency is required to provide in its opinion under the reasons-and-bases requirement. But the ultimate question, just like in JMOL, was the evidence sufficient to meet that standard of proof -- whether it's preponderance or clear and convincing in the civil context; here, it's approximate balance -- Official 1 was the evidence sufficient -- you know, did the veteran present sufficient evidence to get into that approximate balance, or was the agency instead correct to find itself persuaded against the veteran?
Justice Sotomayor: Counsel, it -- it's very rare -- and I think Justice Alito is right. If the agency simply says both sides are credible, I'm going to pick B, and stops there, that's legal error because they have not -- the -- the rule says you have to give the benefit of the doubt to the plaintiff, and if they say everything's equal, they've committed legal error because it's in equipoise. What actually happens, however, is that the AIJ does a whole set of credibility determinations to support the conclusion of why they're going to believe one side or another. They're going to look at the expert they believe or -- and say: That expert had more information. That expert was more precise about A, B, and C. The other expert didn't know this fact. I think that's, in fact, what happened in one of these cases. And they give a whole Official 1 set of reasons as to why they're disbelieving one expert or not accepting one expert over the other. So let's get to that point. That, to me, is a mixed question of law and fact.
Melanie L. Bostwick: I think you could look at it as a mixed question of law and fact. We think that the -- the sufficiency-of-the- evidence standards are -- are -- are more of a helpful analog. But, if you look at it under the mixed question test, this is surely a predominantly legal question that would be reviewed non-deferentially. So it's -- if we look at --
Justice Sotomayor: So that's done in almost -- in so few areas of law, most of them constitutional. Like, is there probable cause? I -- I don't know of any other area of civil law where we view mixed questions of law and fact as predominantly legal.
Melanie L. Bostwick: And I would say this is a -- a unique area of law, right? It has a uniquely generous standard that is unlike anything else that applies in civil litigation. So having a unique standard of review -- Official
Justice Sotomayor: But we go back to Justice Kavanaugh's question, which is due account --
Melanie L. Bostwick: Yes.
Justice Sotomayor: -- seems to me not to include a standard of review. They knew how to say it's a matter of law or it's a matter of fact and what standard of review applied, and they didn't use those words.
Melanie L. Bostwick: But they didn't use "clear error" either. And they didn't put it under (a)(4), which is the standard of review for facts. I think that's a clear recognition that this is not a factual question or at least not purely a factual question. To take --
Justice Sotomayor: But there are components that are factual and components that are legal, and we -- they take due consideration of the standard of review that applies to each.
Melanie L. Bostwick: But just because something involves facts doesn't mean that the ultimate question is -- is a question of fact. There are many tests. I think, in the intellectual property context, we have something Official 1 like obviousness in patent law or fair use in copyright law. Those tests are both based on subsidiary factual findings that are reviewed deferentially. The ultimate conclusion is reviewed as a matter of law. So I don't think this is so unusual.
Justice Kagan: But I think --
Justice Jackson: What happens --
Justice Barrett: Ms. Bostwick, can I -- can I ask you just about the scope of your argument for a moment? You say that the Veterans Court must consider this sua sponte in every case. But both of your clients did raise the benefit-of-the-doubt argument, so why should we even reach that question?
Melanie L. Bostwick: For a couple reasons, Your Honor. First, because it -- it matters to address the "when presented" language in order to actually give effect to Congress's text and not make it duplicative of what's already required under subsection (a). But I would say also that it matters concretely to these Official 1 Petitioners. I think that's -- the clearest example is the fact that Mr. Thornton had two claims that the agency resolved against him. One was his rating for PTSD, as to which he did raise the benefit-of-the-doubt argument to the Veterans Court. The other was his rating for his undiagnosed illness, as to which he did not raise a -- specifically raise a benefit-of-the-doubt error to the Veterans Court. Under our view, because he raised other challenges to that rating denial, the Veterans Court would have to look at -- have to perform its -- its (b)(1) review as to that claim as well.
Justice Barrett: Well, I do have one quick question about Mr. Thornton. Since he did receive benefits, I just don't understand exactly what he stands to gain because, because of his unemployability, wasn't he given complete disability? So what further relief could he get if he wins before us?
Melanie L. Bostwick: Yes, Your Honor. So the -- his total disability based on individual Official 1 unemployability, because of his age, it's not a permanent benefit. The -- he is subject to continual review on that. So, even though he is receiving a hundred -- benefits at the hundred percent level right now, that could change in the future. So the rating for his individual conditions is important. He also may be in a situation where he would be entitled to special monthly compensation, which goes above the hundred percent level.
Justice Barrett: Thank you.
Justice Gorsuch: I -- I'd like to follow up on -- on -- on Justice Barrett's question, Ms. Bostwick. The party presentation question wasn't really squarely addressed in either of the lower court opinions, and I wonder whether we should, as a court of review rather than first view, give them the chance to tackle that first and just address the question of, when it is presented, must -- must it be interpreted the way you -- you -- you propose. What do you think of that?
Melanie L. Bostwick: So, respectfully, Your Official 1 Honor, I -- I disagree. I do think the Federal Circuit --
Justice Gorsuch: I know you disagree.
Melanie L. Bostwick: -- resolved this question. But -- I -- I --
Justice Gorsuch: I -- I -- I know that, but would you object to a partial win rather than a complete one, counsel?
Melanie L. Bostwick: I'm certainly not going to object, Your Honor, but I would point the Court to Pet. App. 9a in the Bufkin opinion, where it relies on the "when presented" language to say that -- that arguments that are -- are benefit-of-the-doubt errors that are not raised to the Veterans Court don't have to be addressed, so --
Justice Gorsuch: And I understand there's language in -- in some of the Federal Circuit opinions -- suggests that they do (a) review, the -- sorry, (b)(2) review, that is, the prejudicial error review, even when it isn't presented, which is a little odd, but -- and I understand that you want your -- your provision interpreted in pari materia with that, but I just wonder whether, as a first bite, we should Official 1 just tackle the narrow question that is squarely presented.
Melanie L. Bostwick: It would certainly be -- be helpful for the Court to -- to address any -- any of these questions. We do think the -- the "when presented" piece is an important part of giving the statute effect, but if it -- if the Court wanted to leave that for the Federal Circuit to consider with the benefit of the Court's other guidance, that would be fine. I do -- again, I think that this language at Pet. App. 9a --
Justice Gorsuch: a. I've got that. I've got that note.
Melanie L. Bostwick: In the --
Justice Gorsuch: And then, separately, there's been some discussion about the "take due account of" language, and I -- I'm certainly sympathetic to that point. But (b)(2), the "take due account of the rule of prejudicial error," courts -- it seems to be a given between the courts and both sides here that that means that the reviewing court will conduct a harmless error review. Official
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: And it looks at the record given -- given what's not clearly erroneous. It takes those facts as given and then does a de novo legal analysis and decides whether the -- the -- the error which is found would have been -- made a difference in the outcome of the case.
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: And you're asking (b)(1) to be interpreted in the same manner?
Melanie L. Bostwick: Yes, for -- for two reasons. They're -- they're subject to the same language, and -- and two pieces of language are important. One is that subsection (b), unlike subsection (a), the Veterans Court is directed to make these determinations on -- based on a review of the record of proceedings before the Secretary and the Board. That's a comprehensive review, as this Court recognized in Sanders when addressing (b)(2). And also, the -- the words "take due account," right? What -- to take due account of something is -- what -- what account is due will depend on the thing being taken account of. In Official 1 the prejudicial-error context, it was, okay, let's do it the same way we do in the APA. Here, what are we dealing with? We're dealing with the Secretary's application of Section 510(c), a mandatory statute that binds the agency with not one but two "shall" commands. A reviewing court takes due account of that by looking at whether the agency complied with its obligations, and the piece of that, the approximate balance piece of that that sets out the standard of proof, reviewing courts look at the -- the standard of proof as a matter of law.
Chief Justice Roberts: Are you -- are you just asking for another line in the opinion saying our conclusions take due account of what it's supposed to, and then that's -- because, I mean, your friend on the other side says that this really doesn't add anything. And you seem to be saying no, they have to look at this and this. So what -- I mean, I know you want a different result in this case, but in terms of the analysis, what are you looking for?
Melanie L. Bostwick: Yeah, I -- I don't Official 1 think going from one rubber stamp to another system would -- would be helpful here. We think that this is a meaningful analysis that the Veterans Court must perform. I'll give you an example of what the Veterans Court shouldn't be doing, which is at Pet. App. 43a in Mr. Thornton's case. Mr. Thornton, again, yes, he raised a benefit-of-the-doubt challenge, but, nonetheless, the Veterans Court said that the -- the agency's conclusion -- the outcome of the agency's approximate balance analysis is a factual finding. And because Mr. Thornton had said, I'm not challenging factual findings, I'm making a legal argument, the Veterans Court said we don't have to do anything. Thus, he has not shown error in the Board's application of Section 5107(b). That certainly can't be right. What -- whatever precise level of deference or scrutiny the -- that is appropriate to take due account of the Secretary's application of this statute, it has to be some meaningful review. And that's the -- the purpose of the Veterans Court, right, is to -- to superintend Official 1 this one agency. If the Veterans Court is meaningfully looking at this benefit-of-the-doubt rule, then we will get a developed law on what does approximate balance mean, how does it apply in different cases. We will get uniformity, which we don't have now. I would point the Court to page 9 of the DAV amicus brief, where it talks about examples of veterans from -- who served on Eglin Air Force Base, where the government concedes it used toxic herbicides. You have veterans with identical records, some of them being given the benefit of the doubt and others not. That -- that is the kind of legal error that the Veterans Court should be supervising and should be preventing by -- by doing an actual meaningful review of this statute.
Justice Jackson: And should be because, you say, Congress intended that. I mean, I -- I understood from your argument that Congress came back and put (b)(1) into the statute, which suggests that it intended that it do some work, I would think.
Melanie L. Bostwick: Yes, Your Honor, that it do some work. And we think the -- you know, Official 1 Congress putting it in subsection (b), where it's something that applies in every case and -- and isn't bound to the specific arguments that the parties raise and is based on a review of the record, is indicative of the importance of this issue. I think it also is important for the Court to bear in mind the number of veterans who appear pro se even at the Veterans Court. There were more than 1100 of them last year alone. And, certainly, those veterans, you know, they may not know to raise a specific articulation of a -- a 5107(b) error, but they know something went wrong. And what Congress is telling the Veterans Court is you have to look. It's -- it's the Veterans Court's obligation to take due account of the agency's compliance.
Justice Jackson: And going back to Justice Gorsuch's point, we do see parallel language between (b)(1) and (b)(2), so I just want to be clear that (b)(2) does have this sort of separate obligation, is that right, by the court? In other words, (b) -- sorry, Chief. May I? Official
Chief Justice Roberts: No, no, you can finish.
Justice Jackson: (b)(2) doesn't require sort of a threshold analysis of legal error versus factual error or whatnot. Everyone agrees that when the statute says "take due account," the court operates, as Justice Gorsuch suggests, to just determine whether there is a harmless error under these circumstances.
Melanie L. Bostwick: Yes. And under the Federal Circuit's Tadlock ruling and others, that is a mandatory obligation on the court.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Let me just pursue for a second the example that you gave earlier in your argument about a hypothetical case in which there are two experts who testify on the question of the linkage between the disability and service. And let's say, in that situation, the -- the Veterans Administration finds that Official 1 even taking into -- even giving the claimant the benefit of the doubt, the expert who says that there is no linkage is more persuasive, okay? Now that finding would be dispositive of the claim for benefits, would it not?
Melanie L. Bostwick: I -- I -- I don't mean to -- to be difficult, but I would say it depends on the circumstances because the test is not -- again, the test isn't equipoise and the test isn't, you know, has one person persuaded more than the other. It is an approximate balance assessment.
Justice Alito: Right. They say: Taking into account the approximate balance, the approximate balance is not in favor of the claimant, it is against the claimant, all right? So that is a finding. And let's assume it's dispositive of the -- of the claim for benefits. And then there is -- then there is a review in the Veterans Court. Is it your argument that the finding of fact as to which expert is more credible is subject to de novo review or clear-error review?
Melanie L. Bostwick: No, that aspect is subject to clear-error review. Official
Justice Alito: And then what is subject to de novo review?
Melanie L. Bostwick: The judgment of taking all of the evidence, right? It's -- it's rare that there's going to be just these two pieces of evidence and it's so clear how they balance out. Taking all -- into account all of the lay and medical evidence relevant to the issue, was the evidence in approximate balance, or did it persuasively favor one side or the other?
Justice Alito: Well, let's say that there is a finding of fact on every piece of evidence, and on all of these pieces of evidence, the finding of fact is that even giving the claimant the benefit of the doubt, the fact has not been proved. Then what is the standard of review before the Veterans Court? Do you say that -- that that is -- although each of them is subject to clear error -- each of these findings is subject to clear-error review, when you put it all together, that is a question of law that is subject to de novo review? Is that your argument?
Melanie L. Bostwick: Yes, Your Honor. Official
Justice Alito: Why wouldn't that apply in -- in every civil bench trial? The question of whether the -- the -- the -- the judge erred in rejecting a particular civil claim, that would be a -- in your view, that's a -- that's a question of -- of law?
Melanie L. Bostwick: If -- if there's a motion that the -- if -- if there's -- if the challenge is not to any factual finding but just to the sufficiency of the evidence, that is a -- a question of law, as -- as this Court --
Justice Alito: But it takes into account the -- the findings on all the subsidiary facts?
Melanie L. Bostwick: Yes. And that's our view of how this works as well, Your Honor.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: What is the difference between (b)(1) and (b)(2)? (b)(2) says, "take due account of the rule of prejudicial error," and that's because the Secretary doesn't do that, correct?
Melanie L. Bostwick: Correct, Your Honor.
Justice Sotomayor: So it's only Official 1 the -- it -- it's the Veterans Court that has to do that because it's the only one charged with doing it?
Melanie L. Bostwick: Yes, Your Honor.
Justice Sotomayor: All right. So it has to apply it. But (1) says: "Take due account of the Secretary's [obligation --] application of section 5107(b)." That's substantially different. It's asking a -- it's asking them to review what someone else has done, correct?
Melanie L. Bostwick: Yes, Your Honor. It's --
Justice Sotomayor: And so that comes -- may come to a different standard of review, correct?
Melanie L. Bostwick: It could, and -- and so we have to look further at what is the -- the Secretary's application of 5107(b).
Justice Sotomayor: I'm -- my point is only that (b) doesn't really tell us much.
Melanie L. Bostwick: I don't think it -- it answers the -- the question, no, Your Honor.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I just want to make Official 1 sure I understand. Do you agree with the -- the description of the benefit-of-the-doubt rule, that it's essentially just a change in the burden of proof, right? Usually, a claimant comes in and he has to meet a 51 percent burden. And what the benefit-of-the-doubt rule does is to say: No, if you meet 50 percent, you win, and maybe even a little bit more because it's an approximate balance. So maybe, if you go 49 percent, you win. But that's what this rule is. It's just a shift in the burden of proof?
Melanie L. Bostwick: Yes. I'd say it's -- it's a different burden of proof. And I do want to be clear it is not a 50 percent rule. It is not a preponderance rule. The Federal Circuit has rejected that. It is broader than that.
Justice Kagan: Okay. So it's in -- right, that, like, even if you don't get up to 50 percent, maybe because we find that there is an approximate balance, you still win. But that's just a -- a -- a -- that's just another Official 1 way of shifting the burden of proof. That's what this rule is?
Melanie L. Bostwick: Yeah. It's -- it's also -- the burden remains on the claimant, but the level of the burden they have to -- the threshold they have to meet is different. It sort of creates three zones: persuasively favoring the veteran, veteran wins; persuasively against the veteran, veteran loses on that issue; and then this middle zone of approximate balance. It would chase the veteran --
Justice Kagan: Yeah. So why isn't the way we usually do this -- it's like usually, in, like, a totally factual case, where you have all these subsidiary factual findings and then you have a question of whose facts weigh more heavily, whose facts are more credible, and we usually think about that as, like, was it clear error to find that the claimant didn't meet his 51 percent burden of proof. Now we just say: Is it clear error to find that the plaintiff didn't meet his slightly less stringent burden of proof? But it's still clear error.
Melanie L. Bostwick: I -- I don't think so, Official 1 Your Honor. Again, I think, when you're judging the sufficiency of the evidence to meet whatever the applicable standard of proof is, I mean, this case -- this Court's case in -- in Reeves, in Weisgram, talks about that. And then, of course, in the criminal context with probable cause, it -- it -- it talks about that as an ultimate question of law.
Justice Kagan: Okay. Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: Let me see if I've got it, and I may not, Ms. Bostwick. So, in -- in a normal civil case, for example, we -- we look at all -- on a reviewing court will look at all of the facts in the light most favorable to the prevailing party below.
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: We take those facts and then we do a legal analysis to see if they're sufficient as a matter of law to support the verdict rendered, and we do that de novo.
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: That -- that -- that's just what it is. Now that standard is: Official 1 Could any reasonable juror come to this conclusion? But that's the legal standard we ask based on the evidence that's given.
Melanie L. Bostwick: Yes.
Justice Gorsuch: And you're here asking us essentially to say, take all the non-clearly erroneous facts and ask: Was the Secretary's approximate -- instead of a sufficiency line, whether the -- whether the Secretary's determination that they were not in approximate balance is correct?
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: And what's an approximate balance? Nobody knows. But that's -- that's what -- what you were talking with Justice Kagan about. It's something less than 50 percent.
Melanie L. Bostwick: It's -- the -- the way the Federal Circuit has described it in the -- the governing Lynch opinion is whether the evidence persuasively favors one side or the other or whether it's instead an approximate balance. And they have rejected the idea that -- that proof by a preponderance for the government is enough to get you out of Official 1 approximate balance.
Justice Gorsuch: Okay. So, to take your example of the two experts, let's say they're both super well qualified and they both do a really good job. And one says: Service-related. The other says: Not. The agency favors the one that's not because, hmm, he -- he interviewed the claimant more recently in time or ran one more test. And -- and that's not clearly erroneous because a clearly erroneous standard is very hard to meet.
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: Right? It's -- it's basically: Were they crazy in -- in choosing this one fact over the other fact? And they were not crazy. So there's no clear error. But, as a matter of law, you would say, as I understand your argument, that, hey, those are really pretty similar, and the Secretary's decision that it wasn't decisively in favor, I think is the language you used, or something like that, in favor of -- of -- of the government means that -- that this standard has teeth and should be applied? Official
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: Okay. And in the same way that -- that -- that the prejudicial error language works, we take all the non-clearly erroneous facts and say: Okay, would this error have made any difference?
Melanie L. Bostwick: Yes, Your Honor.
Justice Gorsuch: All right. I think I got it. Thank you.
Melanie L. Bostwick: Yeah.
Justice Gorsuch: All right.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: Two things. I assume you don't want us to accept the premise that clearly erroneous is the same as crazy as a general proposition. (Laughter.)
Melanie L. Bostwick: The -- correct, Your Honor. The way the Veterans Court has articulated it is: Is there a plausible basis?
Justice Kavanaugh: And, second, can you quantify or try to quantify what approximate balance is?
Melanie L. Bostwick: I think we're -- we're, Official 1 in this case, not challenging the -- the -- the Lynch decision, and so it is just: Have you persuasively favored one side or the other? Trying to put numbers on that --
Justice Kavanaugh: Is -- is that 35, 40, 45, 49? What do you think?
Melanie L. Bostwick: I think that's a question that -- that this Court doesn't have to resolve in this case. What we do know is that it's -- it's more than, you know, 51/49. It's -- it's broader than that difference.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: No.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So just a final point on this. You've said a couple of times that this area is involving a unique standard, and what I took you to mean is that the approximate balance standard itself, the 5017(b) standard, is unique, but what you're asking of the courts, the rule that you would like to have applied Official 1 here is very similar to what courts do when they evaluate sufficiency of the evidence, as you had in the dialogue with Justice Gorsuch. Is that what you're saying? So we're not -- you're not asking for something new and different by the Court with respect to the assessment here?
Melanie L. Bostwick: We don't view it as new and different. Correct, Your Honor. It's just that the -- the -- you know, whereas, in a Rule 50 context, for example, you might be looking at the sufficiency of the evidence through a preponderance standard --
Justice Jackson: Right.
Melanie L. Bostwick: -- this is a -- a different test, this approximate balance.
Justice Jackson: But we're still doing the same -- qualitatively, same kind of review as a sufficiency-of-the-evidence review?
Melanie L. Bostwick: Analytically, we think it is the same, yes, Your Honor.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Joshi. Official 1 ORAL ARGUMENT OF SOPAN JOSHI ON BEHALF OF THE RESPONDENT
Sopan Joshi: Mr. Chief Justice, and may it please the Court: The Veterans Court does not apply 5107(b) itself. It takes due account of the Secretary's application of it, and it does so in making the determinations under subsection (a). Those textual clues point to standard principles of judicial review of agency action. That is, the Veterans Court reviews legal aspects of the Secretary's application of 5107(b) de novo and factual aspects deferentially, here, for clear error. The Secretary's determination that all the evidence in the record on a particular issue is or is not an approximate balance is itself factual or predominantly factual and so should be reviewed for clear error. Now what I heard my friend say this morning and the reason Petitioners resist that fairly obvious conclusion, I think, is because they observe that everything I just said could have been inferred from subsection (a) itself. And so that leaves subsection (b)(1) with no Official 1 additional work to do. But, when Congress enacted (b)(1) in 2002, it took what was implicit or just generally covered in (a) and made it explicit and specific. It put an exclamation point on it. That's not nothing. Think of the Tenth Amendment, for example. But, even if you think that our interpretation renders (b)(1) largely redundant, it's still better than the alternative that Petitioners offer you. Petitioners say that the approximate balance finding should be reviewed de novo. But that creates needless contradictions in the text. It conflicts with the express standard of review Congress supplied in (a)(4). It's in serious tension with the prohibition on trial de novo in subsection (c). It's a real divergence from standard principles of judicial review generally and judicial review of agency decisions more specifically. And it's even inconsistent with the way other factual issues under (b)(1) are reviewed, as my friend mentioned this morning, like the in-service connection or existence of a Official 1 disability. If Congress intended that highly irregular result, I think the language in (b)(1) is an awfully cryptic way of going about it. So, as between two interpretations, one that's sort of consistent, coherent, with a little bit of redundancy, and one that eliminates the redundancy at the cost of a statute at war with itself, I think you should pick the former over the latter. I'm sorry, I welcome the Court's questions.
Justice Thomas: Well, in order for you -- us to accept your argument, don't we have to accept that Congress passed a meaningless provision?
Sopan Joshi: I don't think so, Justice Thomas. I think --
Justice Thomas: So what work is it doing?
Sopan Joshi: So I -- I just want to be clear I -- I'm willing to accept that it's redundant but not that it does no work. It does work. It just does work that subsection (a) generally, you could infer, also does. So it's doing duplicate work. It's not a nullity. Official 1 So I know, you know, when there are statutory nullities, you should avoid those at all costs, but redundancy --
Justice Gorsuch: What -- what's the difference between a duplicative work and a redundancy?
Sopan Joshi: Oh, no, there's no difference there. I'm drawing a distinction between that and a nullity, where a statute says do X, but we say it actually has no effect, you don't have to do X.
Justice Gorsuch: Well, no, that's very different.
Sopan Joshi: Yeah.
Justice Gorsuch: But I -- I think Justice Thomas's question is, if (a) does all the work, what does (b) do?
Sopan Joshi: Yeah -- yeah. So I think --
Justice Gorsuch: You say it's an exclamation point like the Tenth Amendment. I -- I hope you don't think the Tenth Amendment's a redundancy and a nullity.
Sopan Joshi: So --
Justice Gorsuch: But put that aside. Official
Sopan Joshi: Well, so, Justice Gorsuch, this Court in New York against United States said that the Tenth Amendment simply makes clear -- and this is quoting Justice Story -- simply makes clear what you would already do to address --
Justice Gorsuch: It makes very clear what you do --
Sopan Joshi: Yeah.
Justice Gorsuch: -- already. And the question is, is that what this does?
Sopan Joshi: I --
Justice Gorsuch: Are you suggesting this only --
Sopan Joshi: I think so. And let me give you just a little bit of history that is recounted in -- I think even in Petitioners' tale in the -- the -- the -- the history they cite of the enactment. Veterans groups came to Congress and they said, look, you have given us -- they didn't -- they weren't identifying some gap in the statute. They were saying, you gave us this lower standard of proof, whether it's 49, 50, 48, whatever it is, a lower standard of proof, Official 1 but we're not getting the benefit of it and the Veterans Court isn't holding the Board to giving us the benefit of this thing. And so Congress, I think, reacted in a way you might expect when faced --
Justice Gorsuch: So -- no. Right -- right --
Sopan Joshi: -- with that problem, not --
Justice Gorsuch: Right. But you just said that they came to Congress saying that the Veterans Court isn't giving the benefit of the rule. And -- and I'm -- and I'm just wondering, after the law passed, I think you're still saying that the court doesn't have to do that.
Sopan Joshi: No.
Justice Gorsuch: It just does clear -- clear-error analysis.
Sopan Joshi: Well, so there are a couple things there. Let -- let me first say I think what the statute did was remind the Veterans Court of its preexisting obligation. And you see that in the case law. So --
Justice Gorsuch: What -- what obligation does it have? Official
Sopan Joshi: So the obligation is to -- so let me give you an example, and I'm going to cite a couple cases in the Senate report, but I -- Congress was thinking about these cases. So Congress identified two cases as exemplary of what the Veterans Court was doing that it didn't like, that it thought was not honoring the statute it had already passed. They're called -- the two cases are called Ammons, I think, A-m-m-o-n-s, and Presley. And if you look at these cases, they rejected factual challenges by the claimants, and they rejected it for having no plausible basis in the record. And there's just no citation or mention of the benefit --
Justice Gorsuch: So that's clear error?
Sopan Joshi: They don't even mention --
Justice Gorsuch: But that would be -- that would fail --
Sopan Joshi: Yeah.
Justice Gorsuch: -- on clear-error standard, right?
Sopan Joshi: I'm sorry?
Justice Gorsuch: Those examples would Official 1 fail for lack -- they would be clearly erroneous --
Sopan Joshi: No.
Justice Gorsuch: -- factual findings, right?
Sopan Joshi: No. What -- what I'm saying is that those cases found no clear error without any recognition that it's a clear-error review against a standard of proof that is lower than a preponderance, right? Standards of proof and standards of review are two different things, and you can mix and match. There's no -- you could have a high standard of proof, like clear and convincing, or a low one, like -- like this one here, but you can mix and match with de novo or deferential review. There -- there's no reason one compels the other. But --
Chief Justice Roberts: Counsel --
Justice Jackson: Mister --
Chief Justice Roberts: -- I -- I want to go back before you get off it. What other examples do you have of Congress passing a law that doesn't do anything?
Sopan Joshi: As I -- so we cite a Official 1 couple of cases in our brief involving statutes, O'Gilvie and Kawashima. You know, in O'Gilvie, there, the -- you know, if -- if you -- I don't want to delve too deep into it, but there was a statute that said damages in litigation about personal injuries are not taxable, you can exclude them from your income, and the question was, well, what about punitive damages because those aren't on account of your physical injury; they're on account of, you know, punishing the defendant or something. And the Court said, no, punitive damages are excluded. You have to count those as income. And the argument was made on the other side, well, wait a minute, Congress had passed a subsequent amendment saying that punitive damages are excluded in personal injury cases for non-physical injuries, so like mental injuries. And they said, well, that statute would be completely superfluous if punitive damages were not already included. And you said, well, it doesn't matter. We go with the reasonable test.
Justice Kavanaugh: What --
Chief Justice Roberts: Well, but that Official 1 seems to me that there's a legal determination and that the law that you're talking about sort of pointed the Court in the right direction. I mean, here, I -- it was an eye-catching sentence in your brief for me when you said "the amendment would serve a useful purpose even if it simply confirmed and emphasized a preexisting legal duty." Now this is not part of a complicated law where they wanted to say and we want you to do this. This was freestanding, right? It said this is what you get in -- in the veterans groups making a -- a fairly significant push to get this fixed from their point of view. And you say what they got was something that didn't do anything.
Sopan Joshi: I -- I -- I think it did have a good effect. So, to finish my answer to Justice Gorsuch, I mentioned the Ammons and Presley cases, which applied a clear-error standard with no recognition that the standard of proof against which it was measuring the clear error was lower than a preponderance. But then, shortly after the law was passed, there was a case, it's not discussed Official 1 here, but it was discussed extensively in the Federal Circuit below in these cases, a case called Mariano from the Veterans Court, where it just looks completely different. It's still applying clear-error review, but it is actually reversing the --
Justice Kavanaugh: That's why -- why -- yeah. Why are you accepting the premise that it didn't do anything? It seems to me the way you're describing it, it did something important, which was describing the practice at least in some cases by the Veterans Court where they weren't separately analyzing it in light of the benefit-of-the-doubt rule and telling the Veterans Court you need to take due account of the benefit-of-the-doubt rule. That is accomplishing something. And, in fact, as you say, the proof's in the pudding, then the Veterans Court and the -- they're doing that, right?
Sopan Joshi: That's exactly right, Justice Kavanaugh.
Justice Jackson: Doesn't it depend on what the complaint --
Justice Kavanaugh: Well -- well -- Official
Justice Jackson: Oh, sorry. Go ahead.
Justice Kavanaugh: -- just -- so I guess I'm not sure why you so easily accept the premise. I mean, it seems to me it accomplished something important.
Sopan Joshi: I -- I agree completely. There are times I -- I think Congress is free to pass a statute that reminds a court of its obligation if it feels that the court is not currently fulfilling the obligation that already exists --
Justice Kavanaugh: I -- I mean, it didn't just --
Sopan Joshi: -- but doesn't want to change the obligation.
Justice Kavanaugh: Congress didn't just pass the same words.
Sopan Joshi: Correct.
Justice Kavanaugh: Right, right.
Sopan Joshi: Correct. And -- and --
Justice Jackson: But doesn't -- doesn't it depend on the complaint that's being made, though? I mean, that's why I think it's really important that we understand what the Official 1 veterans were complaining about to begin with. If the sum total of the complaint was that the Veterans Court was completely ignoring the benefit-of-the-doubt rule, it never raised it, it didn't say anything about it, et cetera, then I suppose you could have an argument that a subsequent amendment that was designed to remind the Veterans Court that this obligation existed makes sense. But, if the complaint was maybe there are times when a court is completely ignoring it, but what we really are worried about is that we're not actually getting it, that they're saying benefit of the doubt or whatever, but then, when they're applying it, they are not actually giving us -- they're not evaluating whether the evidence is in equipoise properly; when it is in equipoise, they're not giving it to us. In that circumstance, if that was the complaint, it seems odd that Congress would just come back and point to the benefit-of-the-doubt rule as opposed to saying we need a court that's actually policing the extent to which the Veteran -- the administration is giving people Official 1 what we said in 5017.
Sopan Joshi: Right, Justice Jackson. So, as I -- as I read it and as I read it as Petitioners' account of it, it was that it was not -- they were not complaining that there was some gap in the statute.
Justice Jackson: No, not gap, meaning the gap in the statute would be we don't have the ability to bring this to the court's attention. We all agree that before, under the existing statute, under the existing circumstances, they could make a claim about the benefit-of-the-doubt rule. The question is, when Congress amended the statute to say something to the Veterans Court, weren't they -- this is the other side's argument -- weren't they saying what we need you to do is to make sure that the agency is actually applying this consistent with the law? And that's why it becomes, as Justice Gorsuch suggested, a legal question, because just like the sufficiency of the evidence is a standard in the law and we want to make sure that the evidence is sufficient, here, Congress is saying you need to make sure, court, that Official 1 when this comes to you, it's not just a deference to the agency, whatever they did with respect to benefit of the doubt, but you're actually making clear that they met the legal standard of giving the veteran what they're entitled to under this statute.
Sopan Joshi: Okay. So there was a lot there. I would like --
Justice Jackson: Yes, I'm sorry.
Sopan Joshi: -- to address all of the pieces of it. Let me just start with sufficiency of the evidence because that's come up a lot in this morning's discussion. That is a deferential standard of review. Remember, a sufficience-of-the- evidence challenge has a reviewing court looking at the fact finder's application of a legal standard to the facts. Fact finder in sufficiency challenges would be the jury, right? But the reviewing court, in reviewing a sufficiency motion, doesn't ask did the jury err in finding --
Justice Jackson: No, I understand.
Sopan Joshi: -- every element met Official 1 beyond a reasonable doubt.
Justice Jackson: But isn't it a question of law? It is a -- we -- we evaluate it as --
Sopan Joshi: No, no. That --
Justice Jackson: -- a question of law, don't we?
Sopan Joshi: No. That's my point. It's -- it's a deferential standard. It doesn't ask if the jury erred. It doesn't even ask if the jury clearly erred. It asks, did the -- was the jury so out to lunch in finding each element met beyond a reasonable doubt because, in fact, there is no reasonable juror on the face of the earth who could have found every element beyond a reasonable doubt.
Justice Gorsuch: Right. Right. Right. But, counsel, I -- I --
Sopan Joshi: It's the most deferential --
Justice Gorsuch: Sure. But it is a --
Sopan Joshi: -- standard of review I know.
Justice Gorsuch: -- it is a -- it is Official 1 a legal standard, though, isn't it? Because we --
Sopan Joshi: No --
Justice Gorsuch: Just a second. Don't we take, when we do sufficient -- I mean, maybe I'm just wrong, out to lunch, and I'm -- I welcome being corrected. But I -- I -- I thought, when I used to do this a lot on the court of appeals, that I'd take all the facts in the light most favorable to the victor, those are the facts I've got to use, and then ask the legal question whether any reasonable juror could come to the conclusion this jury did. That's a legal question.
Sopan Joshi: It's a legal standard. Of course, it is.
Justice Gorsuch: Okay. That's all. That -- that -- that --
Sopan Joshi: But it's a deferential standard.
Justice Gorsuch: Oh, of -- sure it is. Yeah.
Sopan Joshi: Yeah.
Justice Gorsuch: And the question -- Official
Sopan Joshi: So that's all we're saying here, is --
Justice Gorsuch: I --
Sopan Joshi: -- the deferential standard is clear error.
Justice Gorsuch: On -- on the fact --
Justice Jackson: No, but the clear error goes to the facts.
Justice Gorsuch: -- facts.
Sopan Joshi: Yes.
Justice Jackson: Right. So the deference is baked into the -- the acceptance of the facts. But then, once you have that bucket of non-clear-error facts, you're making a legal determination as to whether or not it satisfies the standard.
Sopan Joshi: So -- so there are multiple things going on here, but -- but I agree that the -- that the -- that the approximate balance standard is a legal standard. Of course, it is. And you apply it to all of these historical facts that have been found: the expert evidence, the lay evidence, the medical evidence. That's the application of a legal Official 1 standard to the facts in the record. That is a classic mixed question of law. And so then the question is: How do you review -- how does a reviewing court review the fact finder's mixed question resolution? And the answer there, which has been given in case after case -- Village of Lakeridge is probably a great example from a few terms ago -- you ask: Does answering that mixed question entail primarily factual work or primarily legal work? And, here, it is clearly, I think, primarily factual. I mean, it says "balance." That means assigning weights to different evidence and then putting them on the scales and seeing how heavy they are.
Justice Kagan: So --
Justice Barrett: So, Mister --
Justice Kagan: -- can I ask, Mr. Joshi, how would you describe what the reviewing court -- how the reviewing court is supposed to take into account the benefit-of-the-doubt rule in conducting its review?
Sopan Joshi: Sure. So, for example, a Official 1 claimant raises an injury or says: I suffer from PTSD. And the Board rules against him and says: You don't actually suffer from PTSD. What the Veterans Court will do on appeal is say: All right, the standard of proof was little -- was lower than preponderance, and so we're going to ask: Did the Board clearly err in finding -- well, the first step -- I should back up. It's the Secretary's application of 5107(b). The first part of 5107(b) says: The Secretary has to take into account all the lay and medical evidence in the record. So the first thing the Court should do is say: Did the Board actually take into account all the evidence? If not, that's a legal error. You can reverse. Then you say: Okay, it did take into account. Is the Board -- based on all of the evidence in the record, is the Board's conclusion that the claimant did not reach 48 or 49 --
Justice Kagan: Clear error.
Sopan Joshi: -- is that clearly erroneous or not? Official
Justice Kagan: So -- so, in the -- in the usual case where a claimant has a 51 percent standard, you would say, did the Board clearly err in -- in deciding that the plaintiff did not meet his 51 percent standard?
Sopan Joshi: Exactly.
Justice Kagan: And, in this case, you would ask the same question, except you would substitute for the 51 percent standard some lower standard, whatever it is --
Sopan Joshi: Exactly.
Justice Kagan: -- 45, 35, whatever it is?
Sopan Joshi: Exactly right.
Justice Kagan: But you would ask the same question?
Sopan Joshi: Exactly right.
Justice Gorsuch: But --
Justice Kagan: And your -- if I understand the difference between you and Ms. Bostwick, Ms. Bostwick says, look -- she accepts that all the individual facts should be reviewed only for clear error, right, so that, like, any particular factual matter is -- gets clear-error review, any particular factual Official 1 determination. But this ultimate balance and the ultimate determination of whether the weight of the evidence indicates that the plaintiff did or did not meet the standard is an entirely legal question. And the difference is you're saying it's not a legal question, that last bit, that that last bit is at -- is at most -- it's either a pure factual question or it's the kind of mixed question that U.S. Bank was talking about when it talked about mixed questions that immerse courts in case-specific factual issues, compelling them to marshal and weigh evidence and make credibility judgments. Is that correct?
Sopan Joshi: It's exactly right. That's our position, and that's what we view as the critical difference between the two sides in this case.
Justice Gorsuch: If that's the case, then what do we do about the fact that courts all the time do sufficiency-of-the-evidence review de novo based on the record, again, in the light most favorable? And the -- the next section of (b) -- Official 1 (b)(2) is the same -- works the same way, I think, on your -- on your understanding as well, that the court, in deciding whether there's harmless error, takes all the non-clearly erroneous facts and asks de novo whether, as a matter of law, it would have made any difference, the -- the -- the error, that is.
Sopan Joshi: So let me answer both pieces of that question, Justice Gorsuch.
Justice Gorsuch: Yeah.
Sopan Joshi: First, I want to push back on the premise that sufficiency is a -- a -- it -- it is a legal standard, but it is a deferential standard of review.
Justice Gorsuch: No, I understand. But it's a legal standard. And -- and harmless error is --
Sopan Joshi: Yeah, but ---
Justice Gorsuch: -- also a legal standard, isn't it?
Sopan Joshi: Correct, it is a legal standard. But the point is the legal standard is applied to evaluate whether the fact finder erred in coming to some conclusion or not.
Justice Gorsuch: Mm-hmm. Official
Sopan Joshi: Here, the fact finder is the Board. Sufficiency would be the jury. But -- and then, as you go up further levels of appellate review, there's not cascading deference up the appellate chain. It's each reviewing court is reviewing the fact finder. And so I think, colloquially, we might say, oh, the Supreme Court reviews the court of appeals' sufficiency determinations de novo. Sure, we can say that colloquially.
Justice Gorsuch: No, no, no. I'm talking --
Sopan Joshi: But, really, you're applying a deferential standard to the fact finder.
Justice Gorsuch: Again, I'm just, you know --
Sopan Joshi: Yeah. The second -- the second piece was on (b)(2). I think I have two answers to that. Number one, what Justice Sotomayor said, which is that the court is applying prejudicial error. That's something only a court applies. And that's different from the Secretary's application of (b)(1), which invokes Official 1 principles of review of agency action. And so that's a difference. But I do think that -- so we disagree with Petitioners that the Federal Circuit thinks that the prejudicial error has to apply in every case. They cite this Tadlock case.
Justice Gorsuch: No, I know --
Sopan Joshi: I've read the Tadlock case. It wasn't presented there at all.
Justice Gorsuch: Put that -- put that -- put -- put that aside.
Sopan Joshi: Yeah.
Justice Gorsuch: We normally read statutes in pari materia. And (b)(2) you agree is a -- is a de novo legal standard the Court has to apply when raised?
Sopan Joshi: Yes.
Justice Gorsuch: Okay.
Sopan Joshi: Yeah, that's right.
Justice Kavanaugh: Does the approximate balance determination go only to the final conclusion, or does it go as well to subsidiary factual conclusions, just to make sure we're clear on that?
Sopan Joshi: I think it would do both. Official
Justice Kavanaugh: That's what I thought. Okay.
Sopan Joshi: I think it would go to subsidiary as well. I -- I think the -- the statute says on any material issue. And one can imagine there are subsidiary material issues and ultimate ones. And I think that's the most consistent with cases like Anderson against Bessemer City, where this Court said clear-error review, for example, applies to both subsidiary and ultimate facts.
Justice Kavanaugh: Okay. Thank you.
Justice Jackson: How big a deal is this? I mean, I can imagine there are not that many situations in which the evidence is truly an approximate balance. So even if the government's position is -- you know, if we agreed with the Petitioner here, is this going to be a big deal?
Sopan Joshi: I think it is going to be a big deal. I think the vast majority of cases that get appealed to the Veterans Court are raising essentially factual challenges to findings that there's no present disability or Official 1 no in-service connection or no causation between the two.
Justice Jackson: Right. But the question --
Sopan Joshi: And -- but --
Justice Jackson: Yeah. Mm-hmm.
Sopan Joshi: Oh, sorry. So just to -- just to continue on that --
Justice Jackson: Yeah. Yeah.
Sopan Joshi: -- so, because of that, I think, as these cases illustrate, the Veterans Court is going to be reviewing the factual findings and, thus, has to take due account of the Secretary's application. But, if it's a de novo review, that means that in every case, this appellate court, which is not well situated to do it -- the appellate court is going to have to, in every case -- almost every case, review the entire record, assign weight, balance things, figure out if it's an approximate balance. Appellate courts are not well suited to doing this, as Anderson against Bessemer City made clear. That's why there's a really strong norm in our system that -- Official
Justice Jackson: I know. But then why -- why did Congress clearly require the court to do it? I -- this is the thing that's a little unfortunate in a way in the way that I think you're arguing it because, even if we say Congress went back and underscored this obligation, the approximate balance obligation runs to the Secretary, right, and the underscoring is now to the court. So it's obvious that Congress wanted the court to have some assessment of whether or not the Secretary is doing it correctly. So I think you -- you don't get out of that by just saying, oh, the court is not in well positioned. Congress thought the court was going to do something, right?
Sopan Joshi: Yes. But Congress expressly had before it a proposal to change the standard of review and then rejected it and said we're sticking with the clear error review. So I think Congress was pretty --
Justice Jackson: Yeah, but Congress also had before it a proposal to put that into -- this new "take due account" into (a), which would have made clear that clear-error Official 1 review was supposed to be happening in this context, and it rejected it.
Sopan Joshi: So I -- I -- I disagree with that. I mean, look, it said "in making the determinations under ... (a)," which put it in there. And just to spin -- spin that out a little bit more, Justice Jackson, if they had put it in (a)(4), I think it would have been an awkward fit there because, as we say, the benefit-of-the-doubt rule does have some legal aspects to it. You know, for example, if you don't review all the evidence in the record, that's legal error. If the Secretary says it's not an approximate balance unless it's in absolute perfect equipoise, I think that would be a legal error. So they -- so Congress couldn't stick it just in (a)(4) because there are legal aspects to it. But nor could it put it as an (a)(5) because it's not something that happens after you go through (a)(1), (2), (3), (4), you know, compel agency action, unlawfully withheld, et cetera. It's not like a separate thing you do. You do it in the course of reviewing statutory Official 1 legal challenges, agency action withheld, factual findings. And so the natural place to put it is somewhere else. You see this in 706 of the APA. It's the -- the prejudicial error rule is not stuck in 7062.
Justice Jackson: And so you don't think --
Sopan Joshi: It's put outside.
Justice Jackson: -- that the deference that you say Congress wanted to retain was in the assessment of what evidence is positive and negative? In other words, the -- the -- the approximate balance rule says when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter. And I could see a world in which the Secretary's assessment of whether this evidence is material to this issue, is it, you know, credible and, therefore, I'm going to count it as positive? Is it credible on the negative side? All of those individual determinations the court cannot review for anything other than clear error. But I thought you said earlier in this Official 1 conversation -- and maybe I misheard you -- that you did think that approximate balance itself, once we know what the positive -- bucket of positive evidence and bucket of negative evidence is, is a question of law. I thought I heard you say it was a question of law.
Sopan Joshi: Oh, approximate balance is a legal standard.
Justice Jackson: Okay.
Sopan Joshi: And what it means is, of course, a legal question as to what it means, but when --
Justice Jackson: And whether or not it's satisfied?
Sopan Joshi: Whether it's satisfied is a classic mixed question, right? It's a standard of proof that you apply to facts in a case. And the application of a statutory standard of proof to the facts and record evidence is a classic mixed question. And how you review a mixed question, this Court has said time and again, depends on the nature of the mixed question. Does it involve primarily factual work or primarily legal work? And our submission here today is that Official 1 applying an approximate balance -- and the word "balance" itself implies weights and weighing things against each other as facts --
Justice Jackson: Yeah, but you've already got -- you've already taken care of the factual assessments. I have my bucket. I understand it involves facts because we're balancing facts, but we already have the bucket of positive and bucket of negative that the Secretary has determined and we're stuck with that. The question of whether or not they are roughly equal, I don't understand -- I don't know why that isn't a -- a factual question.
Sopan Joshi: Well, I mean, look, I think because there aren't -- we don't put actual weights with numbers on pieces of evidence and add it up. If we did, it would be a trivial exercise, right? It's always qualitative. And so, at the end of the day, the Board is just going to look at expert opinions like here, for example, in Mr. Bufkin's case, right? The -- the Board look at the medical opinions in the record, and Mr. Bufkin had Official 1 presented a medical opinion saying he suffered from PTSD, and then there were other medical evaluations that said he did not suffer. And the Board looked at them and said: Well, the regulations require any diagnosis of PTSD to conform with DSM V. The one doctor who said he suffers from PTSD didn't apply DSM V at all. And, indeed, the next doctor who did apply DSM V and said he doesn't suffer from PTSD, said the first --
Justice Jackson: Right. So -- so -- so those would not be credible. They wouldn't be in the bucket. And when the court did its assessment of whether there's approximate balance, it would say there's not, right?
Sopan Joshi: Right. I -- I think --
Justice Jackson: All I'm saying is approximate balance sounds to me like sufficient -- sufficiency of the evidence, and sufficiency, approximate, seems like a legal question, not a factual one. So you keep saying this is factual, intensely fact -- the only factual part is deciding what facts go in to be weighed, but whether or not they're in balance seems to me to be a question of law. Official
Sopan Joshi: I disagree. I think what constitutes --
Justice Jackson: Yeah.
Sopan Joshi: -- an approximate balance, how far away the scales should be --
Justice Jackson: Yeah.
Sopan Joshi: -- that's a legal question. But I think where are the scales in this particular case I think is predominantly factual.
Justice Jackson: Thank you.
Sopan Joshi: And -- and, as I mentioned to Justice Kagan, I think that is the fundamental disagreement between the parties in -- in this case.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Justice Alito?
Justice Sotomayor: I have a question. The Chief started with whether this was a redundant, duplicate, unimportant provision or not. It's pretty absolute. The language of the BOPDR review provision says: "The Court shall review" that issue. Yet you say, no, they don't Official 1 really have to unless the party presents it. If I say no, you're wrong, that doesn't make this provision superfluous, does it?
Sopan Joshi: That's correct, although --
Justice Sotomayor: You don't want that outcome, but that's how to avoid the superfluous -- how -- making this provision superfluous, correct?
Sopan Joshi: That -- that would avoid the redundancy, yes, right.
Justice Sotomayor: And wouldn't that also take care of everything you said was wrong with the old system, which was -- and -- and I remember that veterans are generally not represented. They're laypeople. And recognizing that they may not be schooled enough to raise an issue on appeal, wouldn't this provision require the -- the Veterans Court to ensure that the court below has actually done everything it needed to do, that it looked at all of the relevant facts and didn't commit the legal error of avoiding one, whether raised to it or not, and whether or not it committed clear Official 1 error in its balance or not, et cetera? It would do a lot of work to ensure the system was actually taking care of the problem Congress saw, wouldn't it?
Sopan Joshi: It would do work. I don't think -- if I could just --
Justice Sotomayor: Mm-hmm.
Sopan Joshi: -- now push back a little bit, I think it's -- it wasn't the problem that Congress was facing, first of all. And I think it can't be supported by --
Justice Sotomayor: Well, it was. The court --
Sopan Joshi: Well --
Justice Sotomayor: -- the court -- the two cases you mentioned were the Secretary not looking at things and the Veterans Court not looking at what they did.
Sopan Joshi: No, I disagree, and I -- I apologize if that was the impression I gave you. I think the two cases that were mentioned were really the Veterans Court saying we find no clear error in the Board's finding of facts, without mentioning or even recognizing that the standard of proof against which clear error was Official 1 to be measured was lower than a preponderance. It was represented by the approximate balance, so --
Justice Sotomayor: It wasn't looking at what went on below and figuring out if it was done right.
Sopan Joshi: No, we don't -- we don't know. You could indulge the presumption of regularity and think the Veterans Court was cognizant of it, but to -- to say -- you know, you could -- for example, with a given set of facts, it could always be possible to say that if the standard of proof were a preponderance, the fact finder would not have clearly erred in finding that the party --
Justice Sotomayor: All right. One last question.
Sopan Joshi: -- with the burden didn't meet but did clearly err --
Justice Sotomayor: Should we reach this issue?
Sopan Joshi: No, you shouldn't because both of the Petitioners here didn't raise it.
Justice Sotomayor: But your colleague on the other side, in -- in her presentation, Official 1 pointed out to one issue that Mr. Thornton allegedly did not raise. What do I do about that?
Sopan Joshi: I mean, I -- I -- again, I think the right standard, if you do want to reach it, would just be to say that the "when presented" language, which is a condition precedent on making determinations under (a), and making determinations under (a) is a condition precedent --
Justice Sotomayor: I think that might be better for us --
Sopan Joshi: -- but it's just --
Justice Sotomayor: -- than saying that Congress acts -- that it's okay for Congress to act in duplicate and make a provision wholly useless.
Sopan Joshi: Not useless, just emphasizing something that already exists. And, as a practical matter, it did have an effect.
Justice Sotomayor: Thank you, counsel.
Sopan Joshi: So I think it worked.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Official
Justice Gorsuch: Do you think Congress adopted this language about the benefit-of-the-doubt rule, in both instances where it did, in recognition of the high esteem in which our nation holds those who have served in the armed services?
Sopan Joshi: Probably, yes.
Chief Justice Roberts: Justice Kavanaugh? Justice Barrett? Justice Jackson? Okay. Thank you, counsel. Rebuttal, Ms. Bostwick? REBUTTAL ARGUMENT OF MELANIE L. BOSTWICK ON BEHALF OF THE PETITIONERS
Melanie L. Bostwick: Section 7261(b)(1) is not an exclamation point. It is an entirely new sentence placed in an entirely new statutory sub-provision. It was not responding to the problem that my colleague on the other side has identified. As we've explained in our briefs, the Veterans Court very much was reviewing benefit-of-the-doubt errors when presented. This is not a -- a -- a case like O'Gilvie, Official 1 where there was genuine uncertainty in the law. The problem was that the Veterans Court was being overly deferential when it reviewed. So I would point the Court to the Wensch case, which is also discussed in the legislative history, as an example of what Congress didn't like. There, the court recognized that 5107(b) was the applicable standard. It said: We can review for clear error. We can review reasons and bases. And we can't do anything else. That is the problem that Congress was addressing. And, unfortunately, what the Veterans Court did is, a year after the statute was past, in a case called Roberson in 2003, it looked at it and said: We don't think Congress made any change here. We don't think it altered the judicial landscape. And so this statute has never been given the effect that it was intended. Instead -- so the idea that it -- that what -- what Congress did worked, absolutely not, Your Honor. You see that in the Mariano case that Official 1 the government mentioned. There too, the -- the Veterans Court says: This outcome is a factual determination. We review for clear error. The same thing it had said in the Wensch case that Congress rejected. And that's what's happening today. That's what happened in these cases. In Mr. Bufkin's case, they reviewed only the relative credibility judgments for clear error, did not look at approximate balance, even though, again, he raised the -- the argument. And in Mr. Thornton's case, they said: We're not even going to look at this. You say you're not challenging any facts. And so, even though you've said there was a benefit-of-the-doubt problem, we're not going to look at it. Everyone agrees that at least some aspect of this review, this approximate balance review, is legal. That is reason enough why the Federal Circuit's decision is wrong, because the Federal Circuit held that the (b)(1) review is limited to clear error review under (a)(4). But we think that even the -- the approximate balance test should be reviewed Official 1 non-deferentially, exactly as Justice Jackson articulated it. I would point out that if you, instead, try to review the approximate balance judgment for clear error, the two things are just incompatible. Under Anderson, if there are two permissible views of the evidence, it cannot be clear error. That is exactly the opposite of what the benefit-of-the-doubt rule is supposed to achieve. If there are two permissible views of the error, the veteran gets the benefit of the doubt there. If -- if the Court is inclined to view this as a mixed question, we think it is the kind that should be treated as a question of law. Among other reasons, we have an expert tribunal reviewing the full record and being -- being competent to make these decisions. And we would be able to provide uniformity in the law here. If the Court thinks it's -- it's too factual to call this de novo, at a minimum, I would say this -- this statute, again, unique in the administrative review, at least requires the Official 1 Veterans Court to take a hard look at what the agency has done with the benefit-of-the-doubt rule and not be the kind of rubber stamp that was happening pre-2002 and that continues to happen today in these cases. The question was asked: How -- how big of a deal is this? I -- I'd say it's a big deal that the agency is still today not complying with its statutory obligation under Section 5107(b) and that the Veterans Court is still, after multiple statutory attempts by Congress, not looking at and enforcing that -- this important standard of review. As to, you know, an example of -- of how this is failing, counsel said that Mr. Bufkin had one positive opinion on the PTSD diagnosis. That's incorrect. He had two. And that's part of the problem with the Board's decision and the kind of error that the Veterans Court should be looking at, is whether the agency actually considered all of the evidence relevant to that question. We would ask the Court to reverse the Federal Circuit.
Chief Justice Roberts: Thank you, Official 1 counsel. The case is submitted. (Whereupon at 11:19 a.m., the case was submitted.)