Gorsuch Closes Out for Summer Hiatus With Pair of Dissents

WASHINGTON (CN) – A property-rights dispute denied Monday by the Supreme Court led Justice Neil Gorsuch to note in a brief dissent that the issue is one worth exploring with a stronger case.

In the case at hand, Bay Point Properties Inc., aka BP Properties, had petitioned for a writ of certiorari in its dispute with the Mississippi Transportation Commission.

The petitioner sought review of a finding by the Mississippi Supreme Court that states can limit the compensation they pay if they negotiate an easement limited to one purpose, only to use the land for an entirely different purpose.

“This decision seems difficult to square with the teachings of this court’s cases holding that legislatures generally cannot limit the compensation due under the Takings Clause of the Constitution,” Gorsuch wrote, joined by Justice Clarence Thomas. “Tension appears to exist, too, between the decision here and decisions of the Federal Circuit. And the matter is one of general importance as well, for many states have adopted statutes like Mississippi’s and the question presented implicates a fundamental feature of the compact between citizen and state. Given all this, these are questions the court ought take up at its next opportunity.”

Gorsuch dissented as well Monday to the Supreme Court’s denial of a case against the Department of Veterans Affairs.

“Lower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities they have suffered during military service,” he wrote. “The VA appears to apply the same presumption in its own administrative proceedings.

“But where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirmative duty to assist — not impair — veterans seeking evidence for their disability claims. And consider how the presumption works in practice. The VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals. And that Board often won’t issue an order unless the veteran can first supply a specific reason for thinking the examiner incompetent. No doubt this arrangement makes the VA’s job easier. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?

“Now, you might wonder if our intervention is needed to remedy the problem. After all, a number of thoughtful colleagues on the Federal Circuit have begun to question the presumption’s propriety. And this may well mean the presumption’s days are numbered. But I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this court’s attention.”

Justice Sonia Sotomayor explained the court’s certiorari denial to veteran Freddie Mathis in a brief statement.

“As Justice Gorsuch explains, the board’s presumption is questionable,” Sotomayor wrote. “But the presumption is not the only problem. A decision by the VA to deny benefits in reliance on an examiner’s opinion, while denying the veteran access to that examiner’s credentials, ensures that the presumption will work to the veteran’s disadvantage. The petitioner here did not ask the VA to provide the examiner’s credentials, and so this petition does not allow review of both the VA’s practice and the board’s presumption. Full review would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials. Until such a petition presents itself, staying our hand allows the Federal Circuit and the VA to continue their dialogue over whether the current system for adjudicating veterans’ disability claims can be squared with the VA’s statutory obligations to assist veterans in the development of their disability claims.”

%d bloggers like this: