The Supreme Court continues its hearings on Tuesday with two cases that grew out of legal mistakes, requiring the Justices to consider how to remedy those missteps. One involves an error by a federal agency on veterans’ benefits, the other by a federal court in a criminal case.
Correction of legal errors, although generally desirable, often runs counter to one of the most deeply-set traditions in law: the importance of finality, so that what the law requires is knowable instead of constantly changing. For people to be law-abiding, they must have fair notice of what the law requires. That is one of the rights guaranteed by the Constitution’s promise of “due process.”
Supreme Court Justice Louis Brandeis suggested the virtue of finality in a remark in a 1932 opinion that is often quoted in court opinions and legal tomes: “In most matters, it is more important that the applicable rule of law be settled than that it be settled right.”
That does not mean, of course, that legal errors must always be left as is, but it does suggest that setting them right must be pondered with care, even caution.
Tomorrow’s two hearings exploring that topic will be broadcast (“live” audio, but no video) at Quick Links on the Supreme Court’s homepage – supremecourt.gov. The cases can also be heard at c-span.org/supremecourt and C-Span Now App.
First case: George v. McDonough Starting at 10 a.m., the hearing is set for one hour.
Background: Since 1959, the federal Veterans Administration (since renamed the Department of Veterans Affairs) has used as its motto a stirring vow made by President Lincoln in his second inaugural address in 1865: “To care for him who shall have borne the battle and for his widow, and his orphan.” Leaving aside that, at the time, women did not go to battle but now they do, the motto expresses the nation’s abiding commitment to care for its military veterans, of all genders.
One clear sign of the depth of that commitment is that veterans have their own legal system for determining their rights to federal benefits, especially to medical care that they need for the wounds that are traced to their service.
That system is deliberately tilted toward veterans: Congress, Supreme Court Justice David H. Souter wrote in 2009, had decided “to place a thumb on the scale in the veteran’s favor.”
There is no time limit for a veteran to claim benefits; the claim process is not an adversary system with the veteran on one side and the government on the other; the VA, in fact, has a duty to help veterans work their way through the system, and the process is filled with presumptions in favor of benefits – such as one that deems any health problem to have been caused or worsened by military service, requiring very strong evidence to disprove it.
If a veteran is denied benefits, that has no binding effect until completion of multiple layers of appeals – including an appeal to the Supreme Court. But, even years after appeals have run their course, a veteran can seek to reopen a case if it turns out that there was a serious error in the process. As a veterans’ advocacy organization, the Disabled American Veterans, has commented: “VA decisions are never truly final.”
In fact, the new case before the Court on Tuesday actually began 47 years ago, although it has had lengthy interruptions over that period as laws and government regulations changed. The case started in 1975 when ex-Marine Kevin R. George from Kansas filed a claim for disability benefits for schizophrenia that he claimed had been aggravated by his military service.
George had some mental health problems before enlisting at age 17, but none of that showed up when he was examined on entering the Marine Corps in June 1975. But once in uniform, those problems resurfaced and grew worse over the four months he served before being discharged that September as unable to serve. He soon began his claim for disability benefits.
The issue throughout his case has been whether, in fact and legally, his schizophrenia was aggravated while he was in uniform. His lawyers have always argued that he was entitled to a presumption, spelled out in federal law, that a recruit is sound physically and mentally upon entering service, so any problem that shows up later must have resulted from service.
The law, though, does allow the VA to counter that presumption of soundness only with “clear and unmistakable evidence” of two factors, first, that the condition actually existed before military service began, and, second, that the condition was not aggravated while in uniform.
In George’s case, his claim failed at the initial level in the VA in 1976, and on an appeal within that system in 1977. Those rulings were based on a VA regulation, written in 1974 and thus operating then, which required that the VA only prove that the condition had pre-existed his enlistment. The regulation did not require separate proof that the condition was not made worse by his service, and the VA in George’s case drew that conclusion without conclusive proof.
That might have been the end of George’s claim, since he had no right to appeal under the benefits law that was then in effect (appeal rights were added later). Even so, the VA system has long allowed a veteran to seek to have a case reopened if there was a serious error in the process leading to denial of benefits. For George, that was not apparent for some 26 years.
In 2003, the top legal officer of the VA issued a formal ruling that the VA regulation that worked against George was invalid, because it lacked the full requirements of proof spelled out in the basic federal benefits law. That conclusion became controlling policy within the VA in 2005.
When George’s lawyers became aware of that change, they asked that his case be reopened, and his disability benefits allowed. That plea failed in a VA board, in an appeal to a new Veterans Court, and in a civilian federal appeals court that handles VA matters. They all ruled that the 2005 change in VA’s view did not apply retroactively, so George’s claim was governed by the requirements in effect at the time of the denial – that is, the requirements of the VA regulation no longer in effect. That led George to take the dispute on to the Supreme Court, and the Court agreed to settle the issue.
The question before the Court: If a government agency makes a decision based upon a regulation that later is struck down as invalid, may the agency still rely on that later and refuse to correct the error and to reopen earlier cases?
Significance: The outcome of this case is vitally important to military veterans, because that will go to the heart of the special benefits system – its veteran-centered focus. But it will have a wider meaning, because it confronts the Court with this fundamental question: if a law was wrongly applied by a federal agency, why aren’t decisions made under it flawed and subject to being reopened? That goes to the basic separation of powers mandated by the Constitution.
It is well understood within the legal world that, when a law is formally interpreted by a court in a way different from what had been understood, that does not actually give it a new meaning, but gives it the meaning it should have had all along. It is something of a legal fiction, but it derives from the Constitution.
A court decision giving a federal law a new meaning would amount to rewriting it – a legislative task, assigned only to Congress. Moreover, a decision seen as new would make the decision apply only to future disputes under it. Prior actions based on the flawed, earlier view would become final and unalterable.
But, at least in the realm of veterans’ benefits law, there is actually no genuine finality, since prior errors usually can be challenged.
In George’s case, however, the VA decision-makers and the appeals tribunals all ruled that the meaning given at the time of the denial of his benefits is what controls, making the denial final. The interpretation given in 2003 by the VA to the law was a new meaning, applying only to claims arising thereafter, according to those decisions.
This controversy reaches the Court amidst a strong move among its new conservative majority toward increasing skepticism of how the federal government agencies handle their assignments from Congress, going off on their own policy preferences. The Justices will have to decide whether that is what happened in Kevin George’s case, with the denial of benefits under a 1974 regulation as if it were binding even though the VA now officially treats it as a legal nullity.
Second case: Kemp v. United States. This hearing will start after the veterans’ case concludes, and is scheduled for one hour.
Background: To a lay person, mostly unfamiliar with the intricacies (and idiosyncracies) of the law, it can make sense to treat an error as a mistake, at least when a misstep was unintended; it just happened, so to speak. But that may not make legal sense, at all, if the consequences are different for an error from those resulting from a mistake.
That’s the situation the Supreme Court faces Tuesday, when it hears the second case of the day on the general topic of correcting legal errors. This time it is a test of a 1937 federal law available to those who claim that their court case came out wrong, because of a flaw in the proceedings, giving them a chance to reopen the case in hopes of changing the outcome.
That hearing involves the criminal prosecution of a south Florida drug dealer who has been blocked from reopening his conviction and the 35-year prison sentence he is now serving. Lower courts ruled that he missed a deadline for filing his plea to reopen the case, but he insists that they relied on the wrong deadline, and that he filed in time under the correct deadline.
The law on reopening closed cases has six sections specifying when that relief may be pursued. Only two of those sections – 1 and 6 – are at issue here, but those two set different deadlines that a challenger must meet.
Section 1 allows a motion to reopen based on “mistake, inadvertence, surprise, or excusable neglect.” Such a motion must be filed within one year after the court decision that is being challenged. Section 6 is a catchall provision, allowing a motion to reopen based on “any other reason that justifies relief.” The deadline for filing such a motion is “within a reasonable time.”
In this case, Dexter Earl Kemp of Miami Gardens, Florida, was convicted of dealing in cocaine, marijuana and the drug known as “ecstasy” and of possessing a gun for use in those crimes. He was sentenced to 420 months (35 years) in prison.
He unsuccessfully attempted two rounds of appeals of his conviction, based on a complaint that his lawyer had not provided him with a professionally adequate defense. Because those cases are now closed, his conviction and sentence stand. He returned to court with a plea to reopen his case. The ruling against a new challenge was issued by a federal trial judge on September 30, 2016. His motion was filed on June 22, 2018 – one year and nine months later.
His motion argued that his failure with the prior appeals was due to a misinterpretation by lower federal courts of when he should have filed those appeals. The federal government conceded that the lower courts had been wrong, but it contended that his new motion had been filed too late. Since he was claiming a “legal error,” the government said, that would fall under Section 1 regarding mistakes, and thus he had missed the one-year filing deadline.
Kemp is now appealing to the Supreme Court, arguing that a “legal error” is not covered by Section 1, because that was meant to refer to “carelessness by litigants, not legal errors by courts.” Such legal errors, he asserted, should be covered by the catchall provision, Section 6, so his challenge was filed in a “reasonable time” – one year and nine months.
His appeal said that the lower courts have been split on this issue for a half-century – since 1971 – so it is time the point is clarified, to restore “the balance between finality and equity.”
The question before the Court: Which section of the 1937 law, allowing reopening of federal cases, governs an error of law made by a court, thus determining the deadline for filing such a challenge?
Significance: Although the issue before the Court seems quite simple, answering it will require the Justices to probe deeply into what the judicial system had in mind 85 years ago in fashioning the reopening process. (The rules of procedure in federal courts are crafted by the judicial system, subject to approval by Congress.)
It seems obvious, after a half-century of disagreement among lower courts, that the actual words in the 1937 law do not make clear what they mean, so the answer can only lie in the purpose to be served.
For those convicted of crime, this dispute could mean – if Kemp’s arguments win – that they will have more time to seek to reopen their cases, if they can spot errors in the process. That would not necessarily mean that Kemp’s conviction and sentence will ultimately be overturned but it would provide new hope.
On Wednesday, the Court will hold a single hearing on the important question of whether a state or local police officer may be sued for money damages for failing to give a suspect “Miranda warnings” before questioning about a crime.
