The Board Is Bound by Statute

The second case the Supreme Court hears when it returns to the bench on Monday was filed by a prisoner, without a lawyer, against a defendant that cannot be sued. Floyd D. Johnson named the United States Congress. What he wanted was a federal judge to rule that a law Congress passed is unconstitutional. The question the justices agreed to decide is not whether he is right about the law. It is where he has to go to say so.

Johnson served as an Army infantryman from 1983 to 1985, stationed for part of it in Germany during the Cold War. In 2013 he was convicted of felonies in Florida; the government’s brief says he was sentenced to 40 years. In prison he was diagnosed with post-traumatic stress disorder, and the Department of Veterans Affairs agreed it came from his service, rating him first at 70 percent disabled and then, after an appeal, at 80. Then it cut his payments under 38 U.S.C. 5313. From the 61st day of incarceration for a felony, that section caps compensation for a veteran rated 20 percent or more at the rate paid for a 10 percent disability.

Johnson sued in federal district court in Florida, arguing that section 5313 is a bill of attainder and denies him equal protection. A magistrate judge thought the court “may have jurisdiction” over a challenge to the statute on its face, and recommended dismissing it on the merits; the district judge agreed. The Eleventh Circuit appointed him a lawyer and then threw the case out on different grounds. Congress is immune from suit, it held, and there was no point letting Johnson substitute the Secretary of Veterans Affairs, because Congress had sent every constitutional challenge to a veterans’ benefits law to two other courts. The Supreme Court granted review on 6 April. The question presented is whether the Veterans’ Judicial Review Act stripped district courts of the jurisdiction recognised in a 1974 case to hear challenges to “the constitutionality of acts of Congress affecting veterans’ benefits.”

A case from 1974

For most of American history a veteran could not take the VA to court at all. A 1933 statute made the agency’s benefit decisions “final and conclusive on all questions of law and fact,” and the bar was later rewritten more broadly. In Johnson v. Robison, decided in 1974, the Supreme Court found its limit. A conscientious objector was refused education benefits because the statute excluded conscientious objectors, and he sued, arguing the statute itself was unconstitutional. The bar covered the agency’s decisions “on any question of law or fact under any law administered by” the VA. The Court held that it did not reach him. His claim, it said, arose “under the Constitution, not under the statute whose validity is challenged,” and was a challenge to a decision of Congress rather than of the agency. It added a line both briefs now quote: deciding whether an act of Congress is constitutional “has generally been thought beyond the jurisdiction of administrative agencies.”

In 1988 Congress built what veterans had never had, a general route to the courts for benefit decisions. The Veterans’ Judicial Review Act created what is now the Court of Appeals for Veterans Claims, with appeals from it to the Federal Circuit, and it rewrote the old bar. The provision, now codified as section 511(a), has two sentences. “The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.” And “the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court,” except through the new system. At the top of that system, section 7292 gives the Federal Circuit “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation” brought to it.

The two readings

The government’s brief, filed for Congress by the Solicitor General, reads the first sentence broadly. Section 5313 required the VA to cut Johnson’s payments, so whether section 5313 is valid is a question “necessary to a decision” about how much he is owed. The Secretary must decide it, the second sentence bars any court but the veterans’ courts from reviewing it, and section 7292 confirms that the system was built to handle challenges to statutes. Robison, on this account, read a different statute at a time when the alternative to a district court was no court at all. Now a veteran’s constitutional claim reaches a federal court of appeals either way; the dispute is only which road it takes.

Johnson’s brief reads the same sentence narrowly. A decision “under” a benefits law, he argues, is one that interprets or applies it, which is exactly the phrase Robison construed and Congress kept. He accepted in the Eleventh Circuit that a veteran who says a statute is unconstitutional as applied to his own claim must go through the veterans’ system. A veteran who disputes nothing the VA did, and attacks only the law, should not. His strongest point is not about the word “under”. It is about the word “necessary”, and about the body that would have to do the deciding.

The Board

The VA’s final decisions in contested claims are made by the Board of Veterans’ Appeals, which has more than a hundred judges. Its own regulation, 38 C.F.R. 20.105, says that “in the consideration of appeals and in its decisions, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs and precedent opinions of the General Counsel.” Johnson’s briefs cite a run of Board decisions holding that it has no jurisdiction to consider constitutional challenges to statutes, including one issued, his reply brief notes, on 6 March this year, the day the government filed its brief at the certiorari stage. A question the Board is forbidden to decide, he argues, cannot be “necessary” to its decisions. And if section 511(a) did cover it, the statute’s command that the Secretary “shall decide” it would mean the VA had been defying Congress since 1988.

The government’s answer is the most consequential passage in the briefs. It says the Board has not uniformly disclaimed the power, and cites decisions from 2001, 2011 and 2012 in which Board judges rejected constitutional challenges on the merits, including to section 5313 itself. It then says something larger. Section 511(a) does not mean “that each individual Board member may make benefits decisions based on her own perception of the applicable constitutional rules.” It means “the agency writ large must decide any constitutional issues” necessary to a claim. The regulation binding the Board to statutes, the brief says, “would not preclude the Board from treating a federal statutory provision as unconstitutional if that treatment were consistent with relevant directives issued by higher-level VA officials,” such as a precedent opinion from the VA’s General Counsel. If the Board ruled in a way the Secretary disliked, the Secretary could order reconsideration through the Board’s chairman. The brief backs this with the executive branch’s own duty to uphold the Constitution and a Justice Department legal opinion of 26 September 2025 concluding that the Merit Systems Protection Board must consider certain constitutional issues.

Johnson’s reply calls these two positions contradictory. The latest of the government’s four Board decisions is 15 years old, it says, and two of them describe the Board as free only to express an opinion. Only the Board’s chairman, not the Secretary, can order reconsideration, by a panel the Secretary cannot direct, and the chairman can be removed only for cause. The reply also says the government argued the opposite about the veterans’ court’s powers in the Federal Circuit last year, and points to the government’s own concession that Board members “are not typically experts in constitutional law.”

What is being decided

Section 5313 itself is not before the Court, and on the record so far it would be a hard statute to beat. The government notes that the veterans’ court, the Federal Circuit and the Board have all rejected constitutional challenges to it. A win for Johnson would send him back to a district court to make an argument that has failed elsewhere.

The ruling will matter more for the route than for the destination. If the government prevails, the first forum for a constitutional attack on an act of Congress affecting veterans is an executive-branch tribunal that says it is bound by the act, and whether it may set the act aside depends, on the government’s own account, on what officials above it have directed. If Johnson prevails, a veteran who challenges only a statute can go straight to an Article III judge, as Robison allowed for fourteen years before 1988 and, he argues, ever since. The docket shows nine friend-of-the-court briefs, all filed on 8 June, a week after Johnson’s, from groups including the National Treasury Employees Union, the Washington Legal Foundation, the Institute for Justice and the New Civil Liberties Alliance. None was filed in the window for briefs supporting the government.

The case is listed on the October calendar as Johnson v. United States Congress, No. 25-735, after a climate case brought by Boulder County against Suncor Energy. The caption will survive whatever the Court decides. The defendant has already been held immune.

Sources

The question presented, the docket of No. 25-735 and the October argument calendar were read on the Supreme Court’s website, as were Johnson’s opening brief, the government’s merits brief and Johnson’s reply. The facts of Johnson’s service, conviction and benefits are as the two sides’ briefs state them; his sentence and the 70 and 80 percent ratings are from the government’s brief. The Eleventh Circuit’s reasoning and the magistrate judge’s report are described as both briefs quote them; this publication has not read the lower-court opinions in full. Robison and the 1933 statute are quoted as the briefs quote them. Sections 511, 5313 and 7292 of Title 38 and 38 C.F.R. 20.105 are quoted from the Legal Information Institute at Cornell. The Board decisions and the 2025 Office of Legal Counsel opinion are described as the briefs describe them and were not read.