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Supreme Court turns away pair of veteran disability cases

Two conservative justices disagreed with the majority’s decision not to hear cases involving compensation for veterans who developed health problems while on active duty.

WASHINGTON (CN) — Spurring dissent from two of its conservative members, the Supreme Court rejected a pair of petitions Monday involving the government's failure to pay for injuries veterans suffered during their service.

One of the cases was brought by the widow of Gary Clendening, who says his exposure to radioactive and hazardous waste while stationed at the Marine Corps Base Camp Lejeune in the 1970s caused his wrongful death from leukemia.

By 1980, the government became aware that fuel products and other chemicals were leaking into the North Carolina base's water supply and the troops stationed there were reported to have a 68% higher risk of developing multiple myeloma cancer.

Despite the Department of Veterans Affairs stating that exposure at Camp Lejeune is presumed to be associated with eight diseases including leukemia, Carol Clendening's suit was continuously dismissed as it moved up the courts.

The district court and Fourth Circuit both ruled that although the Federal Tort Claims Act waives the United States’ sovereign immunity and allows for recovery, there is an exception under the so-called Feres doctrine which prohibits military personnel from suing the federal government for any injury “incident to military service."

After the Supreme Court decided Monday not to review Clendening's case, Justice Clarence Thomas wrote in a dissenting opinion that the Feres doctrine should be overruled.

The George H.W. Bush appointee warned of the consequences behind what he called an incoherent exception, noting one lower court granted benefits to a serviceman who was exposed to excessive carbon monoxide at Fort Benning while others have denied similar claims such as Clendening's.

"It would be one thing if Congress itself were responsible for this incoherence. But Congress set out a comprehensive scheme waiving sovereign immunity that we have disregarded in the military context for nearly 75 years. Because we caused this chaos, it is our job to fix it," Thomas wrote.

The other case the justices turned away Monday was brought by Thomas Buffington, who suffered injuries during his time in the service and was denied nearly three years of disability payments by the VA.

After serving eight years in the Air Force during the '90s, Buffington was assessed as 10% disabled and awarded compensation for the injuries he suffered while on duty. He resumed service in 2003 when the government called in his guard unit, but after he left active duty again in 2005, the VA never resumed his disability benefits until he realized it about it three years later.

The VA informed Buffington that it will not provide a veteran with benefits again unless they ask for them, nor will the agency pay benefits retroactively beyond one year prior to the date of a veteran’s reinstatement request.

Buffington’s petition asking the courts to set aside the agency’s regulations and apply Congress’s statutory instructions as written was ultimately denied after the VA invoked so-called Chevron deference, a doctrine that says courts should defer to agency interpretations of ambiguous laws it is charged with administering so long as that interpretation is "reasonable."

Justice Neil Gorsuch wrote in a dissenting opinion in Buffington’s case that Congress only intended to suspend disability benefits when a veteran is receiving active service pay. He said there is nothing in the law about requiring a veteran to ask the VA to pay what they are already legally entitled to or anything that allows the agency to withhold overdue benefits.

"Even more troubling than the answer the lower courts reached in this case, however, is how they got there. Neither the Court of Appeals for Veterans Claims nor the Federal Circuit offered a definitive and independent interpretation of the law Congress wrote," Gorsuch wrote. "Instead, both courts simply deferred to the agency’s (current) regulations as 'reasonable' ones and said this Court’s decision in Chevron required them to do so. That kind of judicial abdication disserves both our veterans and the law." (Parentheses in original.)

The Donald Trump appointee further explained that leaving the interpretation of statues to administrative officials poses serious threats to the commitments of judges and courts, because that interpretation can change at any time and people can never be certain of their legal rights and duties.

"Rather than say what the law is, we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial proceedings a “systematic bias toward one of the parties,'" he wrote.

Gorsuch also warned of the consequences that overreading Chevron can have on government operations, by encouraging executive officials to write more rules regarding statutory terms so that courts will find them "marginally reasonable."

"And often it is ordinary individuals who are unexpectedly caught in the whipsaw of all the rule changes a broad reading of Chevron invites," the dissenting opinion states.

Gorsuch said Buffington’s case "illustrates the impact on disabled veterans."

"Those who left active service before the VA changed its rule received all their promised benefits; those who served later do not. Not because of any change in law, only a change in an agency’s view," he wrote. "So many other individuals who interact with the federal government have found themselves facing similar fates—including retirees who depend on federal social security benefits, immigrants hoping to win lawful admission to this country, and those who seek federal health care benefits promised by law."

Gorsuch wrote another dissent Monday in which he contested the practice in six states of using smaller juries for criminal trials. The Supreme Court did not take up any new cases in Monday's order list,

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