Kimmel v. Secretary of Veterans Affairs

Case: 22-1754 Document: 51 Page: 1 Filed: 10/25/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSHUA KIMMEL, AMANDA WOLFE,
Petitioners
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2022-1754
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
ON MOTION
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Petitioners Joshua Kimmel and Amanda Wolfe move,
inter alia, for summary disposition of their petition for re-
view. The Secretary of Veterans Affairs opposes that mo-
tion and moves to dismiss the petition as moot or stay it
until the Department of Veterans Affairs (VA) publishes a
revised rule.
Case: 22-1754 Document: 51 Page: 2 Filed: 10/25/2022
2 KIMMEL v. SECRETARY OF VETERANS AFFAIRS
This petition concerns 38 U.S.C. § 1725, which requires
the VA to reimburse veterans for the cost of emergency care
received at non-VA facilities but prohibits reimbursement
for “any copayment or similar payment that the veteran
owes the third party or for which the veteran is responsible
under a health-plan contract,” 38 U.S.C. § 1725(c)(4)(D).
Relying on that prohibition, the VA promulgated the regu-
lation that is the subject of this petition, 38 C.F.R.
§ 17.1005(a)(5), to exclude reimbursements “for any copay-
ment, deductible, coinsurance, or similar payment.”
In a prior proceeding, Ms. Wolfe (and another claim-
ant) petitioned the Court of Appeals for Veterans Claims
for a writ of mandamus to enjoin the VA from denying re-
imbursement for coinsurance payments incurred during
emergency medical visits to non-VA facilities. The Veter-
ans Court held § 17.1005(a)(5) was inconsistent with
§ 1725. On appeal, this court similarly held that Ms. Wolfe
had a clear legal right to relief with regard to coinsurance
but that she had alternative avenues for relief, including
review pursuant to 38 U.S.C. § 502. Wolfe v. McDonough,
28 F.4th 1348, 1354–60 (Fed. Cir. 2022). This petition un-
der section 502 then followed.
Under section 502, this court will hold unlawful and set
aside a rulemaking action of the Secretary that is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); Mortg. Invs.
Corp. v. Gober, 220 F.3d 1375, 1377–78 (Fed. Cir. 2000).
And we may grant summary disposition where “the posi-
tion of one party is so clearly correct as a matter of law that
no substantial question regarding the outcome . . . exists.”
Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994).
Here, petitioners argue that there is no question that
§ 17.1005(a)(5) as written is unlawful, given our prior ex-
planation in Wolfe that “coinsurance is the very type of par-
tial coverage that Congress did not wish to exclude from
reimbursement” under § 1725. 28 F.4th at 1356.
Case: 22-1754 Document: 51 Page: 3 Filed: 10/25/2022
KIMMEL v. SECRETARY OF VETERANS AFFAIRS 3
The Secretary does not challenge that decision. In fact,
he states that the VA has “recently decided to revise section
17.1005(a)(5) to remove the bar on reimbursing coinsur-
ance,” and that the Department “recently began processing
claims for reimbursement of coinsurance.” ECF No. 25
at 2. The Secretary argues that, in light of these actions
taken after the petition was filed, see Appx 2, the petition
has become moot. We disagree. It is undisputed that the
regulation at-issue has not been repealed or amended, and
it is well established that voluntary cessation of allegedly
unlawful conduct ordinarily will not moot a controversy
and prevent its adjudication by a federal court, see City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10
(1982) unless “it is impossible for a court to grant any ef-
fectual relief whatever to the prevailing party,” Knox v.
Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)
(internal quotation marks and citations omitted). Relief is
available here, because as even the Secretary notes, we
may still “set aside the coinsurance provision in 38 C.F.R.
§ 17.1005(a)(5),” ECF No. 25 at 14.
For the reasons explained in Wolfe, we hold that 38
C.F.R. § 17.1005(a)(5)’s exclusion of coinsurance reim-
bursement is invalid and direct the VA to undertake expe-
dited rulemaking, in which it shall rescind § 17.1005(a)(5)’s
exclusion for coinsurance and revise the regulation con-
sistent with Wolfe. This expedited rulemaking is to be con-
cluded within 120 days from the date of this order. If the
VA cannot conclude rulemaking within 120 days of this or-
der, it may move for a reasonable extension of time. While
the VA promulgates a revised regulation, the VA is di-
rected to process claims for reimbursement consistent with
§ 1725, including reimbursement for eligible coinsurance
claims.
Accordingly,
Case: 22-1754 Document: 51 Page: 4 Filed: 10/25/2022
4 KIMMEL v. SECRETARY OF VETERANS AFFAIRS
IT IS ORDERED THAT:
(1) ECF Nos. 5 and 6 are granted, and the petition for
review is granted-in-part such that 38 C.F.R.
§ 17.1005(a)(5) is vacated to the extent that it operates to
allow the Department to deny reimbursement for coinsur-
ance payments incurred during emergency medical visits
to non-VA facilities. The case is remanded for proceedings
consistent with this order.
(2) Within 60 days from the date of filing of this order,
the Secretary is directed to submit to this court a status
report under this docket number, briefly stating the status
of efforts taken to date to rescind 38 C.F.R. § 17.1005(a)(5)
to the extent provided above and to revise the regulation.
(3) The remaining motions are denied.
(4) Each side shall bear its own costs.
FOR THE COURT
October 25, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court