Amanda Jane Wolfe and Peter E. Boerschinger v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-6091
AMANDA JANE WOLFE AND PETER E. BOERSCHINGER, PETITIONERS,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, ALLEN, and FALVEY, Judges.
ORDER
GREENBERG, Judge, filed the opinion of the Court. FALVEY, Judge, filed a dissenting
opinion.
We consider today a petition for extraordinary relief filed by Amanda Jane Wolfe and Peter
E. Boerschinger. The petition raises two claims related to Congress's command through 38 U.S.C.
§ 1725 that in certain circumstances the Department of Veterans Affairs (VA), reimburse veterans
for the costs of their emergency medical care at non-VA facilities.1 When petitioners Wolfe and
Boerschinger each required non-VA emergency medical care and respectively sought
reimbursement for a $2,354.41 coinsurance charge and a $1,340 deductible charge, respectively,
VA refused to reimburse them. Those denials began the journey leading to today's decision.
Petitioner Wolfe's claim concerns the validity of a regulation VA adopted in part to
implement section 1725: 38 C.F.R. § 17.1005(a)(5). In her petition she asserts the regulation is
invalid and requests that the Court strike it down as inconsistent with Congress's directive.
Petitioner Boerschinger's claim focuses on VA's provision misinforming veterans about this
Court's interpretation of section 1725 in Staab v. McDonald.2 The petition requests that the Court
order VA to correct its error by, among other actions, notifying affected claimants and
readjudicating affected claims. What's more, for each claim, the petition requests that the Court
certify a class. Just on what we have said thus far, it should be clear that we face a complex situation
procedurally, substantively, and remedially.
Because the situation is so complex, this order is necessarily lengthy and, at times, likely
dense. So, to guide the journey through this order, before we consider the trees, we'll take a look
at the forest—the map, the big picture. In plain English, the case boils down to this: Before Staab,
VA wrongly interpreted and administered section 1725 by categorically denying claims for
reimbursement for non-VA emergency medical care whenever a veteran had any insurance
covering the service at issue. Then, in Staab, we authoritatively corrected VA's misunderstanding
1
See generally Jan. 1, 2018, Amended (Am.) Petition (Pet.) for Class Relief in the Nature of a Writ of
Mandamus.
2
28 Vet. App. 50 (2016).
of section 1725, definitively and unambiguously holding that under the statute Congress did not
exclude veterans with any insurance covering a given medical service from potential
reimbursement for the expense of the medical service. So far, so good. We have a court correcting
an incorrect agency interpretation of a statute. This happens all the time in our system of
government. But as it turns out, things took a decidedly unexpected turn.
After Staab, VA adopted a new regulation, purportedly to implement Staab. We'll assume
such regulatory action was appropriate, meaning that VA had a statutory gap to fill with a
regulation. As we will explain, when it adopted 38 C.F.R. § 17.1005(a)(5) in Staab's wake, VA
excluded from reimbursement nearly every type of expense a veteran could have incurred if he or
she had insurance covering the non-emergency VA medical service at issue. So, after Staab, VA
adopted a regulation that functionally creates a world indistinguishable from the world Staab
authoritatively held impermissible under the statute. As the petitioners put it, "post-Staab, insured
veterans are in exactly the same monetary position with respect to insured claims as they were pre-
Staab."3 Throughout multiple rounds of briefing and at oral argument, no one (including the Court)
was able to come up with a single example of something that would not have been reimbursable
pre-Staab that is reimbursable post-Staab. The Secretary failed to provide an example in his initial
response to the amended writ petition; at oral argument; in his response to the Court's May 14,
2019, order; in his supplemental response to the May 14, 2019, order; and in his response to the
Court's May 31, 2019, order. At the eleventh hour, the Secretary asserts balance billing as an
example,4 but as we'll explain later, this flimsy example can't save his thoroughly unpersuasive
position. The Agency has effectively rolled back the clock and, with no transparency, essentially
readopted a position we have authoritatively held inconsistent with Congress's command.
Recognizing this is what has happened is—quite frankly—startling enough. It's difficult to
conceive how an agency could believe that adopting a regulation that mimics the result a Federal
court held to be unlawful is somehow appropriate when the statute at issue has not changed. But
there is more. Even after we decided Staab, and after VA dropped its appeal of Staab, VA was
affirmatively informing veterans that they were not entitled to reimbursement for non-VA
emergency medical care if they had any insurance covering the service at issue. In other words,
the Agency was telling veterans that the law was exactly opposite to what a Federal court had held
the law to be. Who knows how many veterans relied on such a misrepresentation—for that is what
it was—in deciding not to appeal VA decisions that denied reimbursement for non-VA emergency
medical care
All of this is unacceptable. And as we explain below, such an extraordinary situation
demands extraordinary relief. For the reasons that follow, the Court will certify the class proposed
by petitioner Wolfe concerning the invalidity of 38 C.F.R. § 17.1005(a)(5), hold the regulation
unlawful, and provide relief.5 We will also dismiss as moot petitioner Boerschinger's motion to
3
Petitioners' (Pet'rs') Reply to Respondent's (Resp't's) Response (Resp.) to the Court's May 31, 2019, Order
at 4.
4
Resp't's Sur-Response to the Court's May 31, 2019, Order at 2-3.
5
To be clear, by deciding class certification and the merits of the underlying petition in a single order, the
Court is not adopting a general policy or framework for deciding such matters concurrently in future cases. However,
given the unique circumstances surrounding this case, particularly the nature of the alleged injury and the need for
2
certify a class, though, as we will explain, as part of our order in the Wolfe class we will effectively
provide the substance of the relief he seeks.
We take one last look at the map. On our journey, we will first discuss statutes, regulations,
and caselaw, as well as the facts of the petitioners' claims. Next, we will consider our jurisdiction.
On that question, we'll conclude we lack jurisdiction over petitioner Boerschinger's claim because
his claim no longer involves a live case or controversy. But, we will explain why we have
jurisdiction over petitioner Wolfe's claim. After we dispense with these critical jurisdictional
issues, we will consider whether we should certify a class concerning petitioner Wolfe's claim. We
will conclude that a class is appropriate under the circumstances we face. Then, we will consider
whether the class prevails under the demanding standard governing issuing extraordinary writs.
We will conclude the class is entitled to a writ here. And finally, we will turn to the remedy called
for by the facts.
prompt remedial action, the Court has concluded that resolving both matters in a single order is appropriate here. See
Godsey v. Wilkie, 31 Vet. App. 207, 214 ( 2019) (citing Quinault Allottee Ass'n & Individual Allottees v. United States,
453 F.2d 1272, 1276 (Fed. Cl. 1972) (deciding requests for class certification on a case-by-case basis, "gaining and
evaluating experience" on an ad hoc basis before adopting general class certification rules)).
3
TABLE OF CONTENTS
I. BACKGROUND........................................................................................................................ 5
A. The Statutory and Regulatory Framework and Staab ............................................................ 5
B. Petitioners' Facts and Procedural History ............................................................................ 10
II. JURISDICTION .................................................................................................................... 13
A. Boerschinger Class ............................................................................................................... 13
B. Wolfe Class .......................................................................................................................... 15
III. THE WOLFE CLASS.......................................................................................................... 19
A. Certification ......................................................................................................................... 19
i. Numerosity ......................................................................................................................... 20
ii. Commonality ..................................................................................................................... 20
iii. Typicality ....................................................................................................................... 222
iv. Adequacy of Representation............................................................................................. 23
v. Federal Rule of Civil Procedure 23(b) ........................................................................... 244
vi. Adequacy of Class Counsel Under Federal Rule of Civil Procedure 23(g) .................. 255
vii. Superiority....................................................................................................................... 26
viii. Opt-Out and Notice ........................................................................................................ 27
ix. Certification of the Class ................................................................................................. 27
B. Merits of the Class Petition .................................................................................................. 28
i. Clear and Indisputable Right to the Writ........................................................................... 28
ii. Lack of Adequate Alternative Means .............................................................................. 333
iii. Circumstances Warranting a Writ ................................................................................... 34
C. Remedy................................................................................................................................. 34
4
I. BACKGROUND
A. The Statutory and Regulatory Framework and Staab
Where we've been says a lot about where we're going. Two decades ago, Congress enacted
section 1725 to reimburse veterans for expenses associated with emergency medical care provided
by non-VA facilities.6 But under the statute's original version, VA didn't reimburse veterans "if
[they] ha[d] third-party insurance that pa[id] any portion of the costs associated with such
emergency treatment."7 "To address this problem," in 2010 Congress amended section 1725 to
"allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party
insurer that would pay a portion of the emergency care."8
Congress carried out this aim, in part, by striking "or in part" from section 1725(b)(3)(C),
which provided: "A veteran is personally liable for emergency treatment furnished the veteran in
a non-Department facility if the veteran has no other contractual or legal recourse against a third
party that would, in whole or in part, extinguish such liability to the provider[.]"9 Accompanying
Congress's main objective was an exclusion: "The Secretary may not reimburse a veteran under
this section 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."10 Though not immediately important, this
statutory exclusion will star later.
In 2012, VA amended its implementing regulations "to conform" to Congress's 2010
amendment of section 1725.11 But VA rejected a commenter's suggestion that "[VA] remove the
6
Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, § 111(a), 113 Stat. 1545, 1553-
56 (1999).
7
H.R. REP. No. 111-55, at 2 (2009), as reprinted in 2009 U.S.C.C.A.N. 1478, 1479 (emphasis added).
8
Id. at 3.
9
Id. at 2 (emphasis added).
10
Expansion of Veteran Eligibility for Reimbursement, Pub. L. No. 111-137, § 1(b), 123 Stat. 3495, 3495
(2010). Note that the following exchange that took place during a legislative hearing indicates that Congress intended
(with no plain language to contradict this intent) that VA reimburse deductibles:
Mr. MILLER. Is it the intent of this bill for VA payment to fully extinguish the veteran's
responsibility to the provider so that the veteran wouldn't be liable for any outstanding balance and
at the same time, would the VA be required to cover any co-payments or deductible that the veteran
may owe to a third payer?
....
Ms. WIBLEMO. The original intent would be for the VA to cover what was not covered by the partial
coverage of whatever third-party insurance they had. That was the original intent.
Mr. MILLER. Including deductibles, right?
Ms. WIBLEMO. That is right.
Legislative Hearing on H.R. 4089, H.R. 4463, H.R. 5888, H.R. 6114 & H.R. 6122: Hearing Before the
Subcomm. on Health of the H. Comm. on Veterans' Affairs, 110th Cong. 3 (2008).
11
Payment or Reimbursement for Emergency Services for Nonservice-Connected Conditions in Non-VA
5
term 'or in part' from . . . § 17.1002(f),"12 which at the time stated: "The veteran has no coverage
under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency
treatment."13 VA explained that § 17.1002(f)'s statutory authority was section 1725(b)(3)(B), not
(b)(3)(C). 14 VA considered this distinction significant because, though it acknowledged the
removal of "or in part" from (b)(3)(C), it noted that Congress hadn't revised subsection (b)(3)(B).15
VA further explained that "[t]he current language of § 17.1002(f) clarifies the language of section
1725(b)(3)(B) by reiterating the veteran's liability for emergency treatment if such veteran has no
health-plan contract 'in whole or in part.'" 16 Thus, VA explicitly declined to change 38 C.F.R.
§ 17.1002(f).17 Curiously, the Agency noted that the suggested change to § 17.1002(f) would result
in "treat[ing] a veteran with some coverage under a health-plan contract in the same manner as one
without coverage,"18 insinuating that Congress didn't intend such a result.
Before we turn to how we dealt with this situation in Staab, let's make clear how VA
operated under its regulation in the pre-Staab world: Assume a veteran was insured for the expense
of a particular service (say, the basic emergency room charge) and that he or she met all other
reimbursement criteria. After the veteran's primary insurer evaluated the veteran's medical bills
and paid for covered claims, VA would evaluate the bills, distinguishing between services covered
and those not covered by other insurance. 19 VA would pay "for services not covered in any
proportion by the veteran's primary insurance."20 As for the covered services (the basic emergency
room charge in our example), VA would categorically deny "any emergency-treatment claims . . .
solely because of the presence of other health insurance pursuant to [§] 17.1002(f)." 21 VA's
threshold finding of insurance coverage for any one individual claim meant VA would deny that
claim and would suspend any further inquiry into a veteran's remaining liability on that claim.22
This practice seemed at odds with what Congress did in its 2010 amendments to section 1725. Not
surprisingly, a veteran, Mr. Staab, challenged this system.
In 2016, this Court decided Staab and in doing so clearly told VA that its reading of section
1725 was wrong. We interpreted section 1725(b)(3)(B) "to contemplate a situation when coverage
Facilities, 77 Fed. Reg. 23,615 (Apr. 20, 2012).
12
Id. at 23,616.
13
38 C.F.R. § 17.1002(g) (2011) (emphasis added). As VA notes in its rulemaking, "the commenter referred
to § 17.1002(g)," but "the December 21, 2011, rulemaking redesignated paragraph (g) as paragraph (f)." 77 Fed. Reg.
at 23,616.
14
77 Fed. Reg. at 23,616.
15
Id.
16
Id.
17
Id.
18
Id.
19
See Resp't's Resp. to the Court's May 31, 2019, Order at 7.
20
Id.
21
Id. at 5-6.
22
See id.; see also Pet'rs' Reply to Resp't's Resp. to the Court's May 31, 2019, Order at 2-4.
6
under a health-plan contract would wholly extinguish a veteran's financial liability."23 In other
words, we said VA would not reimburse the veteran only when other insurance extinguished all
liability. Therefore, we concluded that § 17.1002(f) overly restricted eligibility in light of the
statute because § 17.1002(f) still excluded veterans with some coverage, something Congress had
now prohibited. 24 In short, we held § 17.1002(f) invalid because it was inconsistent with the
amended section 1725 and Congress's unambiguous language showing Congress intended that
"veterans be reimbursed for the portion of their emergency medical costs that is not covered by a
third-party insurer and for which they are otherwise personally liable."25 To be clear, this means
Staab recognized that Congress did not mean to prevent reimbursement where a veteran has
insurance covering some portion of the expense for a certain service and still bears costs related to
that service.
The Secretary appealed Staab to the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit). While the appeal was pending, then-Secretary of the Department of Veterans Affairs, Dr.
David Shulkin, appeared at a hearing before the U.S. Senate Committee on Veterans' Affairs.26
Asked how VA was dealing with Staab, Dr. Shulkin stated that "[VA] ha[d] completed all of the
regulations to be able to move forward with payment of the Staab claims, and . . . ha[d] . . .
transmitted them to the Office of Management and Budget."27 The Secretary also stated that he
was voluntarily withdrawing the Agency's appeal of Staab.28 On July 17, 2017, the Federal Circuit
dismissed the appeal of Staab, and the Court's precedential decision became final. To be clear, our
decision in Staab was then—and is now—the definitive and authoritative interpretation of section
1725 for purposes of considering the petition before us.
In the wake of Staab, VA ceased processing "all affected claims," while it revised its
emergency medical care regulations.29 In the public notice of these revisions, VA acknowledged
that "[t]he purpose of this rulemaking is to amend the pertinent VA regulations to comply with
[Staab]."30 This bears repeating: VA stated it was amending its regulations to comply with Staab.
Two portions of the regulatory changes are relevant to this petition, though the second one is more
directly on point. First, VA amended § 17.1002(f) to align the regulation with Congress's direction
23
Staab, 28 Vet. App. at 54.
24
See id. at 54-55.
25
Id. at 55.
26
Fiscal Year 2018 Budget for Veterans' Programs: Hearing before the S. Comm. on Veterans' Affairs, 115th
Cong. (2017).
27
Id. at 72 (statement of David Shulkin, M.D., Secretary of Veterans Affairs).
28
Id.
29
Reimbursement of Emergency Treatment, 83 Fed. Reg. 974, 974-80 (Jan. 9, 2018).
30
Id. at 975. Note that, despite Congress's urging the Secretary in 2010 "to use the discretionary authority
provided by [Pub. L. No. 111-137] to reimburse veterans for emergency treatment provided prior to the date of
enactment who have been financially harmed under the VA's current non-reimbursement policy," H.R. REP. No. 111-
55, at 3, VA established April 8, 2016, the date of the Staab decision, as the revisions' effective date. 83 Fed. Reg. 975
(citing Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697-98
(Fed. Cir. 2005)).
7
that veterans would be eligible for reimbursement unless they had third-party insurance that would
fully extinguish their personal liability for the emergency care.31 The new subsection (f) states that
payment will be made only if "[t]he veteran does not have coverage under a health-plan contract
that would fully extinguish the medical liability for the emergency treatment."32 So far so good,
because this language is fully consistent with what in Staab we held the statute means.
The second regulatory change relates specifically to the statutory exclusion (added in 2010)
in section 1725(c)(4)(D), that is, the thing that can't be reimbursed. When allowing reimbursement
where the veteran's insurance partially covers an expense, in section 1725(c)(4)(D), Congress also
stated: "The Secretary may not reimburse a veteran under this section 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."33 "Because [after Staab] VA [would] provide payment or reimbursement on claims
involving partial payment by a health-plan contract," VA revised 38 C.F.R. § 17.1005 by adding
subsection (a)(5) (which "restate[d]" an old version of § 17.1005(f)34) 35:"VA will not reimburse a
veteran under this section for any copayment, deductible, coinsurance, or similar payment that the
veteran owes the third party or is obligated to pay under a health plan contract."36 This regulation
was supposedly meant to implement the statutory exclusion in section 1725(c)(4)(D) and presents
the central question before us.37 As we will explain, the central question is whether the inclusion
in the regulation of "deductible" and "coinsurance" is consistent with the statute's prohibition on
reimbursement of "any copayment or similar payment."
Before we move on, let's take a moment to assess this history and how the parties see it. In
the post-Staab world, everyone agrees VA still pays "for services not covered in any proportion
by the veteran's primary insurance,"38 which is to say VA didn't change from the pre- to post-Staab
world. 39 According to the Secretary, here's how Staab changed the system: VA no longer
automatically denies veterans' claims for covered services; instead, "VA now assesses the amount
the third party paid for these covered services to determine whether VA can pay any remaining
liability."40 But as we will explain below, the Secretary's view of the post-Staab world makes no
practical difference because, with one possible exception that the Secretary proffered late in the
31
83 Fed. Reg. 975.
32
38 C.F.R. § 17.1002(f) (2019) (emphasis added).
33
Pub. L. No. 111-137, § 1(b), 123 Stat. 3495 (enacting 38 U.S.C. § 1725(c)(4)(D)).
34
Note that old § 17.1005(f) (2017) didn't mention coinsurance: "VA will not reimburse a claimant under
this section for any deductible, copayment or similar payment that the veteran owes the third party."
35
83 Fed. Reg. 975 (emphasis added in quotation).
36
38 C.F.R. § 17.1005(a)(5) (2019). We will discuss below the important differences between these types of
"cost sharing" insurance terms.
37
83 Fed. Reg. 974-80.
38
Resp't's Resp. to the Court's May 31, 2019, Order at 7.
39
Pet'rs' Reply to Resp't's Resp. to the Court's May 31, 2019, Order at 3.
40
Resp't's Resp. to the Court's May 31, 2019, Order at 6; see id. at 8.
8
game,41 it's not clear what expense VA could reimburse now under VA's interpretation that VA
would not have reimbursed before.
And this tracks petitioner Wolfe's view as well. She alleges that VA functionally operates
just as it did before Staab. She says, for covered services, the only potentially "remaining liability"
(i.e., the only potentially reimbursable expense that an insured veteran could owe after insurance
covers a service) takes the form of copayments, deductibles, or coinsurance.42 And § 17.1005(a)(5)
states that VA won't reimburse "any copayment, deductible, coinsurance, or similar payment."
Therefore, petitioner Wolfe says, post-Staab VA functions no differently than pre-Staab VA
because veterans have no other remaining liability for covered services and so receive no
reimbursements for those services.43
Ostensibly responding to the petitioner's no-other-remaining-liability point, the Secretary
insists that other reimbursable costs do exist that insured veterans could owe—namely, costs for
services that insurance doesn't cover.44 By this, the Court (and apparently, the petitioners45 too)
understand the Secretary to suggest that VA's reimbursement of services not covered by other
insurance qualifies as reimbursement of "remaining liability" on covered services. At oral
argument, the petitioners called this a "sleight of hand,"46 and, as we explain in more detail below,
we think that characterization warranted at worst. At best, the Secretary appears to fundamentally
misunderstand his own system. Focusing solely on covered services, the Secretary had failed to
identify any other cost to a veteran constituting potentially reimbursable "remaining liability"
besides copayments, coinsurance, or deductibles, despite the petitioners' prodding and the Court's
multiple attempts to give him an opportunity to do so.47 Until his fifth substantive brief (not to
mention oral argument), that is. More than 9 months after the original petition came to this Court,
the Secretary asserts for the first time that balance billing is an example of a cost representing
potentially reimbursable "remaining liability." 48 As we'll explain later, we're dubious of this
position's viability. Not to put too fine a point on it, if the Secretary is correct, VA has been able
to recreate the regime the Court held unlawful in Staab. We can't allow that to happen.
41
See Resp't's Sur-Response to the Court's May 31, 2019, Order at 2-3.
42
E.g., Oral Argument at 17:33-20:17, Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091 (oral argument held May
14, 2019), https://www.youtube.com/watch?v=rtOGLFyVGqc [hereinafter O.A.].
43
Id.
44
Id. at 34:46-36:18.
45
See Pet'rs' Reply to Resp't's Resp. to the Court's May 31, 2019, Order at 3 n.1.
46
O.A. at 1:34:21-:23. For context, see O.A. at 1:33:07-:37:35.
47
Pet'rs' Reply to Resp't's Resp. to the Court's May 31, 2019, Order at 2. Not only that, but when the Secretary
pointed out, with respect to petitioner Boerschinger, that "Medicare Part A partially paid one of [his] claims," he also
acknowledged that "Mr. Boerschinger's only personal liability after payment by Medicare Part A and VA was his cost-
share obligation with respect to the one service Medicare Part A paid for." Resp't's Resp. to Court's May 31, 2019
Order, at 8.
48
Resp't's Sur-Response to the Court's May 31, 2019, Order at 2-3.
9
Now that we've surveyed the system and the parties' views on the issues, let's turn to the
petitioners and the history of this case.
B. Facts and Procedural History
In September 2016, petitioner Wolfe received emergency care at a non-VA facility.49 She
incurred $22,348.25 in expenses.50 After her insurance paid its share, she still owed $2,558.54.51
Of this amount, $202.93 was a "copayment," and $2,354.41 was "coinsurance."52
Petitioner Wolfe filed a claim for reimbursement. VA denied her claim on February 2,
2018, because "'[p]rior payer's . . . patient responsibility (deductible, coinsurance, co-payment) [is]
not covered.'"53 She filed a Notice of Disagreement (NOD) in July 2018, arguing that "[VA's]
policy of denying reimbursement for deductibles and coinsurance, as expressed in 38 C.F.R.
§ 17.1005(a)(5), is at odds with the plain meaning of 38 U.S.C. § 1725(c)(4)(D), its legislative
history, . . . policy interests in favor of expanding veterans' benefits," and Staab.54 VA replied to
her NOD on August 14, 2018, in a letter stating: "Due to the volume of appeals, we anticipate a
delay."55 At VA's request, petitioner Wolfe filed an amended NOD in the form of a letter, repeating
her earlier arguments.56 VA eventually responded with a November 20, 2018, letter: "Our decision
is final; appeal closed."57 Petitioner Wolfe filed her initial petition with the Court on October 30,
2018.
Meanwhile, petitioner Boerschinger also received emergency care at a non-VA facility.58
Medicare had paid some of his bill; afterwards, he still owed $1,340, which he paid.59 This amount
was a "deductible" that he owed under Medicare Part A.60
Petitioner Boerschinger filed a claim for reimbursement. On November 27, 2018, VA
denied his claim, citing § 17.1002 and finding that he "ha[d] other insurance coverage eligible to
make payment on the claim. The veteran must not have coverage under a health-plan contract for
49
Am. Pet. at 9.
50
Id.
51
Id.
52
Id.
53
Id. at 10; id. Exhibit (Ex.) E at 35.
54
Id. at 10; id. Ex. F at 42.
55
Id. at 10; id. Ex. G at 44.
56
Id. at 10 n.1; id. Ex. H at 46.
57
Id. at 10. Note, though, that the amended petition doesn't offer this letter in an exhibit.
58
Id. at 11.
59
Id.
60
Resp't's Resp. to Pet'rs' Am. Pet. for Class Relief in the Nature of a Writ of Mandamus at 6.
10
payment or reimbursement, in whole or in part, for the emergency treatment."61 Further, VA listed
eligibility criteria, including the criterion that "the veteran has no coverage under a health plan
contract."62 Of course, this statement is utterly inconsistent with Staab.
On January 1, 2019, petitioner Wolfe requested leave to file an amended petition seeking
to join Mr. Boerschinger as a petitioner. 63 On February 1, 2019, the Court granted petitioner
Wolfe's motion and allowed the amended petition.64
More facts came to light in the Secretary's response to the amended petition. At first glance,
they're relevant to the Boerschinger Class exclusively, but as we'll see, they relate to the Wolfe
Class too. The Secretary conceded that after Staab VA didn't update its templates for letters
denying reimbursement for emergency medical care.65 Thus, he essentially conceded legal error.
However, he also provided evidence that VA is in the process of correcting the faulty notice,
renotifying veterans whose claims were denied, and correcting its templates.66 The Secretary stated
that VA has divided veterans who were denied reimbursement and provided with faulty notice into
three categories.67 Category A includes claimants whose claims were incorrectly denied based on
other health insurance (OHI) and who received notices to that effect. 68 Category B includes
claimants whose claims were denied for reasons other than the presence of OHI but who received
notices that potentially contained erroneous language regarding OHI. 69 Category C includes
claimants whose claims were rejected as incomplete (not denied) but who received notices that
potentially contained erroneous language regarding OHI.70
On May 14, 2019, the Court held oral argument. From the bench, the Court ordered the
Secretary to provide the updated letter templates that VA is sending to claimants and information
about which appellate path (the "Legacy" or the "Appeals Modernization Act" (AMA)71 path) VA
would process claims under when upon claimants had received their revised letters and their
extended appeal windows.72
61
Am. Pet. at 11; id. Ex. I at 48.
62
Id. at 11; id. Ex. I at 48.
63
Pet'r's Motion (Mot.) for Leave to File an Am. Pet. for Class Relief in the Nature of a Writ of Mandamus
and Join an Additional Pet'r at 1.
64
Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091, at 4-5 (Feb. 1, 2019, Order).
65
Resp't's Resp. to Am. Pet. 52.
66
Id. Ex. 1 ¶ IV ("Corrective Actions").
67
Id. at 53-54; id. Ex. 1 ¶ IV.a.-c.
68
Id. at 53; id. Ex. 1 ¶ IV.a.
69
Id. at 54; id. Ex. 1 ¶ IV.b.
70
Id. at 54; id. Ex. 1 ¶ IV.c.
71
See Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105
(Aug. 23, 2017).
72
Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091 (May 14, 2019, Bench Order).
11
The same day, the Secretary provided the updated templates. The letter template for
Category A generally acknowledges error but strangely doesn't say what the error was.73 Recall
that veterans in Category A are veterans who were denied reimbursement solely because they had
OHI. The second template, for Category B, acknowledges a "misstatement," specifies that VA
misstated section 1725's requirements related to OHI, and explains the error.74 The template for
Category C mirrors that for Category B in explaining the error.75 Finally, we must keep in mind
that the templates for Categories A and C (but not B) contain the following language: "It is
important to note that VA has no legal authority to pay a Veteran's cost shares, deductibles, or
copayments associated with their other health insurance."76 The Secretary stated in his response
he would process Category A and C claims under the AMA and Category B claims as Legacy
appeals.77 But this information is nowhere in the updated letter templates.
On May 31, 2019, the Court ordered the Secretary to provide more information on the
reimbursement system for emergency non-VA medical services, its history, and the number of
claimants in each of the three categories into which he divided veterans who had received some
form of defective notice about section 1725. In response to that order, the Secretary provided data
on claims processing under section 1725 from October 2009 through June 2019 but tied no clear
arguments to that data. 78 We can't summarize the information much more succinctly than the
petitioners did in a reply the Court allowed them to file:
[The Secretary's] exhibits indicate that Staab has had no impact on the aggregate
reimbursements made by VA under [s]ection 1725. [The Secretary's] Exhibit 1
shows that during the period VA suspended the processing of claims affected by
Staab—from the third quarter of FY 2016 through the first quarter of FY 2018—
VA's quarterly payments under [s]ection 1725 ranged from $95 to $120 million.
Exhibit 2 shows that during the second quarter of FY 2018 (January through March
2018), when VA ended its moratorium and began implementing the regulation
challenged in this case, VA processed 1.9 million claims—a massive increase
compared to the quarterly figures for previous quarters.[] If Staab affected the
amount of payments VA made, then one would expect a major increase in VA
payments under [s]ection 1725. Yet, Exhibit 1 shows that in the same quarter that
VA processed 1.9 million claims, its aggregate quarterly payments were no more
than during each of the three prior quarters when the moratorium was in effect.
Exhibit 1 also shows that there has been almost no change in the total amount of
money reimbursed per quarter following VA's implementation of Staab and the
Regulation, and VA's Response does not suggest otherwise. Thus, Exhibits 1 and 2
73
Resp't's Resp. to the Court's May 14, 2019, Order, Ex. 1 (Category A template).
74
Id. Ex. 2 (Category B template)
75
Id. Ex. 3 (Category C template).
76
Id. Ex. 1 (Category A template), Ex. 3 (Category C template).
77
Resp't's Supplemental (Supp.) Resp. to the Court's May 14, 2019, Order at 1-2.
78
See generally Resp't's Resp. to the Court's May 31, 2019, Order.
12
are entirely consistent with Petitioner's argument that there has been zero monetary
impact to veterans as a result of Staab.[79]
This data seems to fly in the face of "[t]he Secretary's 2016 prediction that [Staab] would have a
substantial monetary impact on the reimbursement system for emergency treatment at non-VA
facilities for non-service-connected conditions," which the Secretary now says was "wrong."80 He
doesn't mention, though, that his prediction is only "wrong" because of § 17.1005(a)(5)'s effect.
As for the number of claimants in each of the three categories, the Secretary supplied the
following information from VHA: "There are 42,050 veterans in Category A, . . . . 348,608
veterans in Category B, . . . . [and] 229,990 veterans in Category C."81 Thus, there are over 600,000
veterans affected just by VA's past actions concerning the matters before the Court.
Now that we have the facts on the table, we can turn to our analysis, starting with
jurisdiction.
II. JURISDICTION
Before we can address either the merits of the amended petition or the potential class
certification, we must first consider whether we have jurisdiction to do what the petitioners ask.82
Even if the Secretary was silent on the question of jurisdiction, we would discuss it because we
have an "independent obligation to police [our] own jurisdiction."83 We "must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." 84 The Secretary
argued that we lack jurisdiction over both classes. We address each class in turn. In sum, we lack
jurisdiction over the Boerschinger Class but have jurisdiction over the Wolfe Class.
A. Boerschinger Class
Petitioner Boerschinger requests certification of a class of veterans "who[] have been or
will be harmed by the VA in that the VA has sent them correspondence regarding their claims for
reimbursement of emergency medical expenses incurred at non-VA facilities stating, incorrectly,
that one criterion for reimbursement is that the veteran have 'no coverage under a health plan
contract.'" 85 On behalf of himself and those similarly situated veterans (collectively, the
"Boerschinger Class"), Petitioner Boerschinger asks the Court to
79
Pet'rs' Reply to Resp't's Resp. to the Court's May 31, 2019, Order at 5 (emphasis in original).
80
Resp't's Sur-Response to the Court's May 31, 2019, Order at 1.
81
Resp't's Resp. to Court Order of May 31, 2019, at 10.
82
We note that, at times, the Secretary conflates the concepts of jurisdiction and substantive entitlement to a
writ. See Resp't's Resp. to Am. Pet. at 8. We address jurisdiction—that is, the power of the Court to act—here. We
return below to the analytically distinct question of entitlement to the writ.
83
Sellers v. Shinseki, 25 Vet. App. 265, 274-75 (2012); see Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 434 (2011); Demery v. Wilkie, 30 Vet. App. 430, 434 (2019).
84
Henderson, 562 U.S. at 434.
85
Am. Pet. at 3.
13
1. Invalidate the Secretary's decisions to the extent they denied reimbursement to
Boerschinger Class members for medical expenses because they have insurance
coverage;
2. Order the Secretary to readjudicate these reimbursement claims under section
1725(c)(4)(D)'s proper interpretation;
3. Enjoin the Secretary from issuing any communication to veterans that incorrectly
states that one of the criteria for reimbursement is that the veteran has no coverage
at all under any health plan contract;
4. Order the Secretary to re-issue all communications, sent to claimants since the
Court's precedential opinion issued in Staab (on April 8, 2016), that incorrectly
stated that one of the criteria for reimbursement is that the veteran have no coverage
at all under a health plan contract;
5. Order the Secretary to [reset] the deadlines applicable to veterans who received this
correspondence for appealing any VA denial of their reimbursement claims; and
6. Order such other relief as may be appropriate in the interest of justice and in aid of
the Court's jurisdiction.86
The Secretary has provided, or is in the process of providing, the proposed Boerschinger
Class all its requested relief. He's claimed to have stopped sending communications to veterans
that incorrectly state that one of the criteria for reimbursement is that the veteran has no coverage
at all under any health plan contract. 87 He's sending out letters that correct the specific error
identified in the Boerschinger portion of the petition informing veterans that VA will readjudicate
claims for which they were denied reimbursement because they have insurance coverage and will
reset the applicable deadlines for appealing denials of claims.88
This Court adheres to the case-or-controversy jurisdictional requirements imposed by
Article III of the U.S. Constitution.89 A case or controversy ceases to exist, and a case becomes
moot, "'when the issues presented are no longer "live" or the parties lack a legally cognizable
86
Id. at 3-4.
87
O.A. at 1:07:47-:08:23.
88
Resp't's Resp. to the Court's May 14, 2019, Order, Exs. 1, 2, 3 (Categories A, B, and C templates). Of
course, as we will explain below, two of those letters ultimately are defective to the extent they inform veterans that
VA will not reimburse a veteran for coinsurance or deductibles. But the correction of that error can best be dealt with
as part of the relief provided to Ms. Wolfe and the class we will certify for her portion of the petition.
89
Cardona v. Shinseki, 26 Vet. App. 472, 474 (2014) (per curiam order); Mokal v. Derwinski, 1 Vet. App. 12,
13 (1990).
14
interest in the outcome.'"90 When a case becomes moot during the course of litigation, the proper
outcome is to dismiss the case for lack of jurisdiction, unless an exception to mootness applies.91
Because Petitioner Boerschinger and his proposed class have received or are receiving the
requested relief, there's no longer a case or controversy with respect to the Boerschinger Class
issues. Therefore, the Court will dismiss those portions of the amended petition for lack of
jurisdiction.
B. Wolfe Class
On the other hand, we have jurisdiction to act with respect to the Wolfe Class for the
following reasons. The Secretary's arguments to the contrary are not persuasive.
Petitioner Wolfe asks us to certify a class of veterans "who[] have been or will be harmed
by the Secretary's unlawful regulation in that the VA has already denied or will deny in the future,
in whole or in part, their claims for reimbursement of emergency medical expenses incurred at
non-VA facilities on the ground that the expenses are part of the deductible or coinsurance
payments for which the veteran was responsible."92 There is no question that Ms. Wolfe's claim
presents a live case or controversy. She was denied reimbursement for non-VA medical services
based on what she asserts is an unlawful regulation. As we will explore, the jurisdictional question
for her focuses on the method by which she seeks to vindicate her rights.
Petitioner Wolfe seeks relief under the All Writs Act (AWA), which provides that "all
courts established by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdiction."93 But the AWA standing alone cannot support our jurisdiction.94 As its
plain language indicates, that statute is designed to aid jurisdiction a court otherwise possesses.
"However, [AWA] jurisdiction extends beyond pending cases; it embraces the prospective and
potential jurisdiction of a court as well."95 A court may use this AWA power "'where an appeal is
not then pending but may be later perfected.'"96 As we have noted before, "if [our] granting of the
petitioner's petition would lead to a [Board] decision over which [we] would have jurisdiction
90
Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496
(1969)).
91
See Browder v. Shulkin, 29 Vet. App. 170, 172 (2017) (per curiam); Fabio v. Shinseki, 26 Vet. App. 404,
405 (2013). There is an exception to mootness related to putative class actions for claims that are "inherently
transitory." See Godsey, 31 Vet. App. at 218. The aim of this exception is, in essence, to prevent a defendant (in district
courts) from mooting a class action by providing relief to the named plaintiff. Id. That is not what happened here. The
Secretary's actions resolved the error for all members of the putative Boerschinger Class. Therefore, the inherently
transitory exception to mootness does not apply on the facts before us.
92
Am. Pet. at 2.
93
28 U.S.C. § 1651(a).
94
See Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998); Heath v. West, 11 Vet. App. 400, 402-03 (1998).
95
Erspamer v. Derwinski, 1 Vet. App. 3, 8 (1990).
96
FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S.
21, 25 (1943)).
15
[under 38 U.S.C. § 7252(a)], [we] would possess jurisdiction to issue a writ of mandamus."97 In
other words, we have jurisdiction under the AWA where we would otherwise "be prevented or
frustrated from exercising [our] statutorily granted jurisdiction over a Board decision."98 And in
this regard it bears emphasis that we need not be certain about what the future will hold.
Jurisdiction under the AWA may be proper to entertain a petition in aid of prospective appellate
jurisdiction where it is "impossible . . . to predict what course petitioner's claim might follow in
the future" and "there is nothing to be gained by engaging in such an exercise."99 "[I]t is sufficient
to note only that the [alleged VA inaction] directly and adversely effects [our] potential and
prospective appellate jurisdiction."100
Congress intended the AWA to function very much at courts' discretion, trusting courts to
utilize the AWA to respond to unusual situations flexibly as circumstances warrant.101 "It permits
federal courts to fill gaps in their judicial power where those gaps would thwart the otherwise
proper exercise of their jurisdiction."102 Though there are "traditional" applications of mandamus,
"[s]ome flexibility is required if the extraordinary writ is to remain available for extraordinary
situations."103
A variety of circumstances, ranging from innocent inefficiency to egregious interference,
may call for writs under the AWA to protect our prospective jurisdiction. For example, where VA
fails or refuses to adjudicate a claim presented, we have the authority to direct the Secretary to act
on that claim.104 The reason is simple: if the Agency never acts, we could never exercise our
jurisdiction. The same would be true if the Agency sought "to restrict [our] jurisdiction . . . through
intimation."105 In that case, we "would have jurisdiction [under the AWA] to issue an injunction
in defense of our jurisdiction."106
Under this well-established AWA law concerning the protection of prospective jurisdiction
and based on the particular facts before us, we conclude that we have jurisdiction to provide the
97
In re Fee Agreement of Cox, 10 Vet. App. 361, 371 (1997), vacated on other grounds sub nom. Cox v. West,
149 F.3d 1360 (Fed. Cir. 1998).
98
In re Fee Agreement of Wick, 40 F.3d 367, 373 (Fed. Cir. 1994); see also Erspamer, 1 Vet. App. at 8
("[AWA] jurisdiction is particularly applicable where . . . an alleged [act or] refusal to act would forever frustrate the
ability of a court to exercise its appellate jurisdiction.")
99
Erspamer, 1 Vet. App. at 9.
100
Id.
101
See Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017) ("Monk II").
102
Id.
103
In re Sch. Asbestos Litig., 977 F.2d 764, 773 (3d Cir. 1992).
104
See Cox, 149 F.3d at 1362-63; In re Fee Agreement of Cox, 10 Vet. App. at 371; see also 38 U.S.C.
§ 7261(a)(2) ("[T]he Court of Veterans Appeals, to the extent necessary to its decision and when presented,
shall . . . compel action of the Secretary unlawfully withheld or unreasonably delayed.").
105
Moore v. Derwinski, 1 Vet. App. 83, 84 (1990).
106
Id. (determining that the Court had jurisdiction over a motion for extraordinary relief independent of a
pending appeal).
16
relief petitioner Wolfe seeks, both individually and on a class-wide basis, for two independent but
related reasons. First, the regulation itself risks frustrating the exercise of our statutorily granted
jurisdiction over Board decisions. Importantly, the petitioner alleges that VA promulgated this
regulation to achieve the same effect that the invalid regulation in Staab accomplished: severely
diminish or eliminate VA's responsibility for non-VA emergency care reimbursements in
contravention of the statute. 107 This regulation effectively accomplishes a categorical and
systematic means of communicating the futility of appealing reimbursement denials for those who
have any insurance. It operates functionally the same as VA's refusal to adjudicate a claim for such
people at all, just as before Staab, in that it stops otherwise potentially meritorious appeals from
progressing through the system.108 This is so either because the regulation is the sole basis of denial
or it creates a chilling effect on claimants appealing multi-bases denials. Many rationally acting
claimants who have been inappropriately denied reimbursement simply won't continue with the
administrative process if the regulation so categorially says they will lose at the end of the day,
assuming they start the process at all given the regulation. Indeed, this regulation frustrates our
jurisdiction in a much more egregious and insidious (if not as pervasive) way than delays do. After
all, one could forgive a potential or denied claimant from ever challenging "the law" when VA
presents it so categorically. To grant the petition and issue a writ invalidating the regulation would
lead to Board decisions for the Wolfe Class members over whom we would have jurisdiction but
who may never appeal because of the existence of the regulation itself.
Second, we now know that—in the notification letters seeking to address the Boerschinger
Class claims—VA is affirmatively telling a wide range of past claimants who have already been
the subject of unlawful administrative action under Staab that they won't be reimbursed for so-
called "cost-sharing" devices (coinsurance and deductibles in addition to Congress's specific
exclusion of copayments).109 That is critically important because, if left uncorrected, these past
claimants won't appeal or, perhaps, not even continue with a claim. If they drop out after reading
the legally incorrect language in the letter, something we'll address in greater detail below, then
we would never get to rule on the issue for them; we wouldn't be able to exercise jurisdiction over
a portion of the class. This is yet another reason to use the writ under the particular circumstances
of this case.
We are cognizant that extraordinary writs are just that—extraordinary. And though
mandamus is disfavored to avoid piecemeal appeals,110 we face a truly exceptional situation today
in which the petitioner alleges that VA promulgated and uses a regulation to circumvent our Staab
decision (or at least its effects),111 amounting to a clear abuse of administration discretion and
disrespect for judicial power and, thereby, our very constitutional separation of powers. This most
107
Pet'rs' Reply to Resp't's Resp. to Am. Pet. at 8-9; see Am. Pet. at 1-2, 8-9, 14-17, 20-21. We have assumed
the truth of allegations in a petition for assessing our jurisdiction under the AWA. See Moore, 1 Vet. App. at 84.
108
See Staab, 28 Vet. App. at 51-52.
109
Resp't's Resp. to the Court's May 14, 2019, Order, Exs. 1, 3 (stating in two different notification letters to
claimants that "VA has no legal authority to pay a Veteran's cost shares, deductibles, or copayments associated with
their other health insurance"). As we explain below, that statement is incorrect as a matter of law.
110
In re Sch. Asbestos Litig., 977 F.2d at 772 (citing Kerr v. U.S. District Court, 426 U.S. 394, 403 (1976)).
111
Pet'r's Reply to Resp't's Resp. to Am. Pet. at 8-9.
17
certainly justifies the writ.112 And we add that VA would continue to categorically reject a host of
reimbursement claims throughout the pendency of petitioner's direct appeal without our
intervention, in addition to continuing to mail claimants legally erroneous notifications. Quite
simply, an extraordinary writ is appropriate when faced with such extraordinary circumstances.
Despite all of this, the Secretary insists we lack jurisdiction, so we address his concerns
specifically. We do so in recognition of the importance of the issues he raises that, in some respects,
go to the heart of our system of tripartite government. First, the Secretary reads section 7261(a)'s
introductory language ("[i]n any action brought under this chapter [72]") to restrict our jurisdiction
to performing actions listed in section 7261(a) only in the context of reviewing final Board
decisions. This argument has no merit whatsoever. To begin with, it entirely ignores the well-
established general principles concerning the protection of prospective jurisdiction we have
discussed. In addition, it ignores a host of caselaw concerning claims of unreasonable delay, law
that seemingly could not exist if the Secretary were correct. 113 And to top it all off, the Federal
Circuit certainly seemed to assume the Court has this authority in both Monk and Martin.114
The Secretary also argues that 38 U.S.C. §§ 502 and 7292 provide the Federal Circuit with
exclusive power to invalidate VA regulations.115 He misunderstands those statutes' import and,
thus, overstates their meaning. The Secretary forgets that "the statutory scheme as a whole, the
specific context in which [a] word or provision at issue is used, and the broader context of the
statute as a whole" all inform any statutory provision's plain meaning.116 Accordingly, we construe
a statute "so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant, and so that one section will not destroy another unless the
provision is the result of obvious mistake or error."117
The Secretary's reading of sections 502 and 7292(c) clashes at minimum with sections
7292(a) and 7261(a)(3), in which Congress clearly provided this Court with the power to invalidate
VA regulations. Contrary to the Secretary's reading of section 502 to delineate the jurisdictional
divide between this Court and the Federal Circuit, Congress seemingly intended section 502 to
delineate the relationship between the Federal Circuit's jurisdiction and the federal regional circuit
112
See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).
113
See e.g., Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. 2017); Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998);
Godsey, 31 Vet. App. 207; Figueroa v. Wilkie, No. 18-6800, 2018 WL 6802821 (Vet. App. Dec. 27, 2018) (order);
Palmer v. Wilkie, No. 18-5122, 2018 WL 6442949 (Vet. App. Dec. 10, 2018) (order); Richardson v. Wilkie, No. 18-
4938, 2018 WL 6313471 (Vet. App. Dec. 4, 2018) (order); Harvey v. Shinseki, 24 Vet. App. 284 (2011); Werner v.
Derwinski, 3 Vet. App. 37 (1992); Erspamer, 1 Vet. App. 3.
114
See Monk II, 855 F.3d at 1319-20; Martin v. O'Rourke, 891 F.3d 1338, 1348 (Fed. Cir. 2018).
115
Resp't's Resp. to Am. Pet. at 9.
116
Hornick v. Shinseki, 24 Vet. App. 50, 52 (2010); see also King v. St. Vincent's Hosp., 502 U.S. 215, 221
(1991); Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1564 (Fed. Cir. 1995) (holding that all parts of a
statute must be construed together without according undue importance to a single or isolated portion).
117
2A NORMAN J. SINGER ET AL., SUTHERLAND ON STATUTORY CONSTRUCTION § 46:6 (7th ed. 2007)
[hereinafter SUTHERLAND]; see Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000).
18
courts of appeal and district courts' jurisdiction.118 So it doesn't seem to play the role the Secretary
wants it to. And section 7292(c) must be read in conjunction with its earlier subsection (a), which
is clearly premised on the fact that this Court has the power to invalidate a regulation.
Finally, and related to the Secretary's argument about the Federal Circuit's role, the
petitioner argues that nothing indicates that Congress intended to remove an avenue for relief that
veterans had before the enactment of the Veterans' Judicial Review Act.119 We agree. In fact, the
Federal Circuit noted that Congress seemed to intend this Court to hear challenges to VA
regulations through class actions.120
Therefore, despite the Secretary's insistence to the contrary, we conclude, after assessing
his specific objections and independently considering the matter, that we have jurisdiction to issue
the writ that the Wolfe Class seeks. We now turn to class certification and then to whether the
named petitioner has shown a right to the writ she seeks.
III. THE WOLFE CLASS
A. Certification
This Court has the "authority to certify a class for class action or similar aggregate
resolution procedure."121 The Federal Circuit declined to prescribe a specific framework for the
Court to use to determine whether class certification is appropriate,122 and, to date, the Court has
not devised its own rules for certifying a class. However, in Monk v. Wilkie, 123 the Court
determined that we would use Rule 23 of the Federal Rules of Civil Procedure (Rule 23) as a guide
for deciding requests for class certification until we issue our own aggregate action rules. 124 And
recently, in Godsey v. Wilkie, the Court fleshed out the framework for analyzing the class
118
See United States v. Szabo, 760 F.3d 997, 1003-04 (9th Cir. 2014) (citing H.R. REP. No. 100-963, at 28
(1988) (expressing Congress's intent "to avoid the possible disruption of VA benefit administration which could arise
from conflicting opinions on the same subject due to the availability of review in the 12 Federal Circuits or the 94
Federal Districts" and stating that "the subject of veteran benefits rules and policies is one that is well suited to a court
which has been vested with other types of specialized jurisdiction").
119
Petrs' Reply to Resp't's Resp. to Am. Pet. at 3-4 (citing Monk II, 855 F.3d at 1319-20; Wayne State Univ.
v. Cleland, 590 F.2d 627 (6th Cir. 1978); Nehmer v. U.S. Veterans' Admin., 118 F.R.D. 113 (N.D. Cal. 1987)). Indeed,
such a result wouldn't jive with a set of laws intended to increase protections for veterans.
120
Monk II, 855 F.3d at 1320 n.4.
121
Id. at 1321.
122
Id. at 1321-22.
123
30 Vet. App. 167, 170 (2018) ("Monk III").
124
Id. at 170 (plurality opinion) (using Rule 23 as a guide), 184 (Allen, J., concurring in part and dissenting
in part) (agreeing with the plurality on this point); see Godsey, 31 Vet. App. at 220 (applying Rule 23 to petitioner's
request for class certification); Thompson v. Wilkie, 30 Vet. App. 345, 346 (2018) (same).
19
certification issues.125 We therefore consider the instant request for class certification under that
framework.
Under Rule 23(a), the party seeking class certification must demonstrate that
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses
of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class. 126
The party must also demonstrate that the action is maintainable as a class under Rule
127
23(b). To do so here, the petitioners must establish that the Secretary "has acted or refused to
act on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole."128
Petitioner Wolfe requests certification of a class of those veterans "who[] have been or will
be harmed by the Secretary's unlawful regulation in that the VA has already denied or will deny
in the future, in whole or in part, their claims for reimbursement of emergency medical expenses
incurred at non-VA facilities on the ground that the expenses are part of the deductible or
coinsurance payments for which the veteran was responsible."129 The Wolfe Class meets the Rule
23 requirements for class certification.
i. Numerosity
The petitioners easily meet Rule 23(a)(1)'s requirement with potentially hundreds of
thousands—if not millions—of claimants,130 and the Secretary concedes as much.131 No further
analysis of this aspect of class certification is necessary.
ii. Commonality
In Wal-Mart, the Supreme Court held that Rule 23(a)(2) requires a "common
contention . . . of such a nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one
125
31 Vet. App. at 220-225.
126
FED. R. CIV. P. 23(a); see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011).
127
FED. R. CIV. P. 23(b); see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
128
FED. R. CIV. P. 23(b)(2).
129
Am. Pet. at 2.
130
See id. at 24 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (more than
40 people in a class satisfied numerosity requirement)).
131
Resp't's Resp. to Am. Pet. at 38.
20
of the claims in one stroke." 132 The Supreme Court emphasized that "'[w]hat matters to class
certification . . . is not the raising of common 'questions'—even in droves—but, rather the capacity
of a classwide proceeding to generate common answers apt to drive the resolution of the
litigation.'"133 The existence of even one such question is sufficient to satisfy the Rule 23(a)(2)
commonality requirement. 134 "Factual and legal differences among class members' claims will
prove fatal to commonality when those differences 'have the potential to impede the generation of
common answers' to the questions proposed by the class.135
As Petitioner Wolfe argues,136 this class meets the commonality requirement. Whether the
Court should grant the writ the class members' seek "depend[s] upon a common contention"—that
the regulation is invalid under section 1725—that "is capable of classwide resolution"—in the
form of an order invalidating § 17.1005(a)(5), invalidating the Secretary's denials based at least in
part on that regulation, and ordering the Secretary to readjudicate those claims based on section
1725's proper interpretation.137 There aren't any factual or legal differences among the Wolfe Class
members' claims that will potentially impede the common answer to the validity question.138 It is
a pure question of law.
The Secretary attempts to argue that the Wolfe Class doesn't meet the commonality
standard.139 But he misunderstands that requirement. He seems to insist that the answer alone must
dispose of class members' ultimate reimbursement claims. That standard is too stringent. The
purportedly invalid regulation need not serve as the only basis of denial to harm veterans. For
example, a veteran could have declined to appeal a different basis for denial simply because he or
she viewed the § 17.1005(a)(5) basis for denial as unassailable.
The Secretary relies heavily on the plurality's commonality analysis in this Court's 2018
Monk decision. 140 Initially, we note that the Monk plurality's commonality analysis 141 isn't
precedential. Even so, this case is distinguishable. Monk concerned unreasonable delay and
discussed how reasonableness is a necessarily factual, case-by-case inquiry.142 In the plurality's
eyes, the petitioners' failure to allege common reasons for delay and to target a "specific practice
132
564 U.S. at 350.
133
Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV.
97, 132 (2009)).
134
Id. at 359.
135
Godsey, 31Vet.App. at 221 (quoting Wal-Mart, 564 U.S. at 350) (internal quotation omitted).
136
Am. Pet. at 25.
137
See Wal-Mart, 564 U.S. at 350.
138
See Godsey, 31 Vet. App. at 221 (quoting Wal-Mart, 564 U.S. at 350).
139
Resp't's Resp. to Am. Pet. at 38-44.
140
See id.
141
Monk III, 30 Vet. App. at 175-81 (plurality opinion).
142
Id.
21
or policy" stymied class certification. 143 But here we're talking about a facial challenge to a
regulation's validity as contrary to statute. This isn't an as-applied challenge of § 17.1005(a)(5);
we need look only to other law to decide § 17.1005(a)(5)'s validity. So, any differences in facts
doesn't stymie certification of this class as they did in the Monk plurality.
Therefore, we hold that the Wolfe Class presents common questions of law sufficient to
establish commonality.
iii. Typicality
The test of typicality is whether other members have the same or similar injury,
whether the action is based on conduct which is not unique to the named
[petitioner], and whether other class members have been injured by the same course
of conduct. Typicality refers to the nature of the claim or defense of the class
representative, and not to the specific facts from which it arose or the relief
sought.[144]
This inquiry focuses on whether "in pursuing [her] own claims, the named [petitioner] will
also advance the interests of the class members."145 This requirement is sometimes considered to
overlap with other Rule 23 requirements.146 "[T]he typicality prong of Rule 23(a) sets a relatively
low threshold."147 Typicality is also easier to satisfy where classes seek injunctive relief.148
As with commonality, typicality is also satisfied here. In pursuing her claim for
reimbursement of her coinsurance payment, petitioner Wolfe will also advance the interests of the
class members because she's disputing § 17.1005(a)(5)'s validity, which prevents reimbursement
to her, and its chilling effect on appeals, both of which affect the other class members the same
way. 149 As goes her claim that the regulation is invalid, so go the class claims. 150 There's no
obvious or alleged variation in claims between the petitioner and absent class members that strikes
143
Id. at 180-81.
144
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (internal quotation marks omitted);
see Robidoux v. Celani, 987 F.2d 931, 936-38 (2d Cir. 1993) (explaining that the "typicality requirement is satisfied
when each class member's claim arises from the same course of events and each class member makes similar legal
arguments to prove the defendant's liability," despite "minor variations in the fact patterns underlying individual
claims").
145
In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir. 1996).
146
Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998).
147
Karvaly v. eBay, Inc., 245 F.R.D. 71, 82 (E.D. N.Y. 2007); see, e.g., Stirman v. Exxon Corp., 280 F.3d
554, 562 (5th Cir. 2002); Lightbourn v. Cty. of El Paso, 118 F.3d 421, 426 (5th Cir. 1997).
148
See Baby Neal for and by Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994).
149
See In re Am. Med. Sys., 75 F.3d at 1082.
150
See Sprague, 133 F.3d at 399.
22
at the heart of the respective causes of action.151 Petitioner Wolfe's claim shares the same essential
characteristics as the class claims at large. 152 Like the rest of the class members' claims, her
reimbursement claim was denied at least in part because it's a non-refundable payment under the
allegedly invalid regulation; thus, she shares the same injury as the other members (responsibility
for payments that VA must pay under section 1725), VA's denial citing the regulation isn't unique
to the petitioner, and other class members bear the burden of payments based on similar denials of
reimbursement claims for which VA should be responsible.153
The Secretary's argument that typicality isn't satisfied 154 suffers from similar
misunderstandings of Rule 23 as does his commonality argument, which we've already addressed.
He argues that VA could find additional reasons to deny petitioner's reimbursement claim or could
reverse denial entirely.155 The latter "possibility" is impossible, though, because VA must follow
the regulation.156 As for the former, additional bases for denial wouldn't make petitioner atypical;
her class already includes claimants whose reimbursement claims were denied on multiple bases.
We hold that Petitioner Wolfe's claims are typical of those in the Wolfe Class.
iv. Adequacy of Representation
"The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between
named parties and the class they seek to represent. '[A] class representative must be part of the
class and possess the same interest and suffer the same injury as the class members.'"157 "Adequacy
is twofold: the proposed class representative must have an interest in vigorously pursuing the
claims of the class, and must have no interests antagonistic to the interests of other class
members."158 Class representatives serve as fiduciaries for certified classes.159
Petitioner Wolfe satisfies the adequacy requirement. She has an interest in vigorously
pursuing the invalidity argument because the success of her reimbursement claim turns on this
issue, and nothing indicates that she has an interest antagonistic to the other class members'
151
See Deiter v. Microsoft Corp., 436 F.3d 461, 466-67 (4th Cir. 2006).
152
See Haggart v. United States, 89 Fed. Cl. 523, 534 (2009); Arreola v. Godinez, 546 F.3d 788, 798 (7th
Cir. 2008).
153
See Wolin v. Jaguar Land Rover N.A., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).
154
Resp't's Resp. to Am. Pet. 44-47.
155
Id. at 46.
156
See 38 U.S.C. § 7104(c) ("The Board shall be bound in its decisions by the regulations of the
Department . . . .")
157
Amchem, 521 U.S. at 625-26 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403
(1977)).
158
In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011).
159
See London v. Wal-Mart Stores, Inc. 340 F.3d 1246, 1254 (11th Cir. 2003).
23
interests.160 The Secretary merely argues that petitioner's interests aren't set yet because she awaits
an SOC, but for the reasons discussed in the typicality analysis, this SOC pendency doesn't concern
us. The Secretary doesn't allege any other specific conflicts of interest between the petitioner and
the absent class members, and we don't independently see any.161
We hold that Petitioner Wolfe will fairly and adequately protect the Wolfe Class's interests.
v. Rule 23(b)
In addition to the Rule 23(a) requirements, a party seeking class certification must also
demonstrate that the proposed class is maintainable under Rule 23(b).162 The petitioner has sought
to certify a class under Rule 23(b)(2), which "permits a court to certify a case for class-action
treatment if 'the party opposing the class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.'"163 As the Supreme Court explained in Wal-Mart, "[t]he key to
the (b)(2) class is 'the indivisible nature of the injunctive or declaratory remedy warranted—the
notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.'"164 "Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of the class. It does not authorize class
certification when each individual class member would be entitled to a different injunction or
declaratory judgment against the defendant."165
The relief that the petitioners request in this case—declaratory and injunctive relief166—
"perforce affect[s] the entire class at once" and is, therefore, precisely the type of relief
contemplated by Rule 23(b)(2).167 The remedy of declaring the regulation invalid under the statute
and ordering readjudication of the affected claims is indivisible in nature; the Court can address
VA's conduct as to all the class members with a single writ in this case.168 That the scope of effect
on different class members will vary isn't an impediment; the writ will affect all class members by
removing that basis of denial on the reimbursement claims. Accordingly, the Court concludes that
160
See In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d at 249.
161
See Amchem, 521 U.S. at 626.
162
See Wal-Mart, 564 U.S. at 345.
163
Monk III, 30 Vet. App. at 181 (quoting FED. R. CIV. P. 23(b)(2)).
164
564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. REV. at 132)).
165
Id. at 360-61.
166
Am. Pet. at 3-4.
167
Wal-Mart, 564 U.S. at 361-62.
168
See Wal-Mart, 564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. REV. at 132).
24
petitioner Wolfe has met her burden of demonstrating that class certification is appropriate in this
case.169
vi. Adequacy of Class Counsel Under Rule 23(g)
"Unless a statute provides otherwise, a court that certifies a class must appoint class
counsel."170 "When one applicant seeks appointment as class counsel, the court may appoint that
applicant only if the applicant is adequate under Rule 23(g)(1) and (4)."171 "The court may not
appoint class counsel by default."172
Rule 23(g)(1) provides, in relevant part, that, in appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating potential claims in the
action;
(ii) counsel's experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class; [and]
(B) may consider any other matter pertinent to counsel's ability to fairly and adequately
represent the interests of the class[.][173]
The Court is satisfied that the proposed class counsel will adequately represent the Wolfe
Class. Counsel has zealously represented the petitioners by diligently and competently identifying,
investigating, presenting, and defending claims for relief, including in various pleadings and at
169
See Amchem, 521 U.S. at 613-14; Monk III, 30 Vet. App. at 174. Manageability is generally not a concern
in Rule 23(b)(2) class actions. See Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). Even in actions brought
under Rule 23(b)(3) where manageability is a mandatory consideration, potential difficulty managing a class action
"will rarely, if ever, be in itself sufficient to prevent certification of a class." Klay v. Humana, Inc., 382 F.3d 1241,
1272 (11th Cir. 2004). In any event, we see no reason to deny class certification in this case on manageability
grounds—this case is highly manageable, particularly when compared to the massive multistate litigations routinely
certified as class actions by district courts. See, e.g., In re Qualcomm Antitrust Litig., 328 F.R.D. 280, 294 (N.D. Cal.
2018) (certifying a nationwide class with between 232.8 and 250 million potential members).
170
FED. R. CIV. P. 23(g)(1).
171
FED. R. CIV. P. 23(g)(2).
172
Advisory Committee's Notes to FED. R. CIV. P. 23.
173
FED. R. CIV. P. 23(g)(1)(A)-(B).
25
oral argument. Via exhibits attached to the amended petition,174 counsel have shown that they have
done extensive work developing the arguments in this case; demonstrated class action and
substantive legal experience; demonstrated relevant legal knowledge of veterans, class action, and
statutory interpretation law; and demonstrated willingness to litigate the claim.175 Therefore, and
because there are no "other matter[s] pertinent to counsel's ability to fairly and adequately represent
the interests of the class," counsel is "adequate" under the terms of Rule 23(g). We will appoint
Mark B. Blocker, Esq., of Sidley Austin LLP, and Barton F. Stichman, Esq., of the National
Veterans Legal Services Program, as class counsel in this matter.
vii. Superiority
Although Rule 23(b)(2) does not require that the party seeking class certification
demonstrate that "a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy" like Rule 23(b)(3) does, we nevertheless address that issue, as this
Court did in Godsey.176 The Court hasn't yet created a test or standard for evaluating superiority.177
But, among other considerations, this case's unique circumstances demand the enforcement
advantages that a class action offers over another precedential decision.
Compare enforcement in a precedential-decision versus class-action context. 178 A
precedential decision certainly binds VA in future claims.179 But if for whatever reason VA errs
with respect to other claims, those aggrieved claimants don't have any right to prompt remedial
enforcement. Full exhaustion of the agency review process, followed by an appeal to this Court,
is their only recourse. But sometimes circumstances indicate a need for prompt remedial
enforcement. There, class certification provides such enforcement. The resulting relief, if awarded,
could be enforced by any class member, particularly those who are absent, who suffers, for
example, error based on VA noncompliance.180
Here, though another precedential decision would undoubtedly bind VA, Petitioner
Wolfe's allegations uniquely highlight the inferiority of a precedential decision under the facts
before us. VA could circumvent another decision—as it allegedly did Staab—without concern
about enforcement beyond another appellate proceeding. If we award the Wolfe Class's requested
relief, any class member (particularly those who are absent) who suffers VA's noncompliance
could enforce it. This case's allegations about VA's post-Staab conduct demand a means for prompt
collective enforcement.
174
See Am. Pet. Exs. A-O.
175
See FED. R. CIV. P. 23(g)(1)(A)(i)-(iv).
176
31Vet.App. at 224.
177
See id. (finding the class action device superior in the case at hand but not offering a test).
178
See id. (discussing enforcement).
179
See 38 U.S.C. § 502.
180
See 38 U.S.C. § 7265(a)(3) (empowering us to "punish by fine or imprisonment" any "disobedience or
resistance to its lawful writ, process, order, rule, decree, or command").
26
Further, the class action device here would allow for consistent adjudication of similar
claims involving this regulation and allow the Court to more quickly address this systemic issue
to reduce delay associated with individual appeals. The Court can compel correction of the alleged,
systemic disregard for both Staab and section 1725 and ensure that veterans are treated alike.181
To force class members to proceed through the normal appellate process individually would
amount to a monumental waste of agency and judicial resources in a system already rife with
delay.182 In short, a class action is a more efficient and effective vehicle for resolving this case than
a precedential decision focused on an individual veteran's case.183
viii. Opt-Out and Notice
We have two final, related matters to consider. We must first determine whether to afford
class members the opportunity to opt out of the class we have certified. Next we must determine
what type of notice, if any, to provide to the class about this certification decision. The issues are
related because, if opt out rights are available, ensuring actual notice of the pendency of the class
action takes on greater importance.
Because this is a class certified under Rule 23(b)(2) 184 and relief of invalidating the
Regulation and issuing corrective notice is indivisible, 185 combined with the Court's national
jurisdiction,186 we won't allow class members the opportunity to opt out. Because class members
don't have the right to opt out of the certified class, notice is less critical than if class members
could remove themselves from the class.
This case is comparable to Godsey in that we need not provide notice of certification to the
affected class members because, like in Godsey, we're resolving the class certification request and
the merits of the underlying petition concurrently.187 Also, and as we will discuss below, as part
of the relief for those affected veterans we grant, the Secretary will issue notice correcting his
misinterpretation of section 1725; that notice renders separate notice of certification largely
unnecessary as a practical matter.188
ix. Certification of the Class
181
See Monk II, 855 F.3d at 1321.
182
See Martin, 891 F.3d at 1349-53 (Moore, J., concurring).
183
See Godsey, 31Vet.App. at 224.
184
See Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990).
185
See In re Allstate Ins. Co., 400 F.3d 505, 506 (7th Cir. 2005) (commenting that "[t]he thinking behind this
distinction [concerning opt-out rights] is that declaratory and injunctive relief will usually have the same effect on all
members of the class as individual suits would").
186
See 38 U.S.C. § 7269.
187
See Godsey, 31 Vet. App. at 224-25.
188
This conclusion, however, is based on the unique circumstances of this case and should not be construed
as a holding that class certification notice is not necessary in future cases. See id.
27
For the reasons outlined above, the Court certifies the following class for purposes of this
petition:
All claimants whose claims for reimbursement of emergency medical expenses
incurred at non-VA facilities VA has already denied or will deny, in whole or in
part, on the ground that the expenses are part of the deductible or coinsurance
payments for which the veteran was responsible.
Having decided the request for class certification, the Court now proceeds to the merits of
the class members' petition.
B. Merits of the Class Petition
Having determined that we have jurisdiction—or power—to proceed, and that we will
certify the Wolfe Class, we turn to whether we should issue the writ requested.189 This Court has
authority to issue extraordinary writs in aid of its jurisdiction pursuant to the AWA.190 However,
"[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations."191
Three conditions must be met before the Court can issue a writ: (1) The petitioner must
demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that
the writ is not used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and
indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that
issuance of the writ is warranted.192 Because Petitioner Wolfe meets all three of these conditions,
we can and will issue a writ here.
i. Clear and Indisputable Right to the Writ
In the context of the petition before us, the question whether petitioner is clearly and
indisputably entitled to a writ comes down to whether 38 C.F.R. § 17.1005(a)(5) is invalid because
it is inconsistent with 38 U.S.C. § 1725. As we now explain, it is.
When reviewing "an agency's construction of the statute which it administers," a court
always asks first "whether Congress has directly spoken to the precise question at issue," and, "if
the intent of Congress is clear, that is the end of the matter [because] the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress."193 However, "if the
189
As we noted above, the Secretary conflates the question of jurisdiction with whether the substantive
requirements for the issuance of the writ have been met. We stress that these questions are, importantly, distinct. The
first, jurisdiction, goes to whether we have power to do anything. The second assumes we have the authority to act
and focuses on whether the Court should on the facts exercise that power.
190
See Cox, 149 F.3d at 1363-64; Kelley v. Shinseki, 26 Vet. App. 183, 185 (2013).
191
Kerr, 426 U.S. at 402.
192
See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004); Kelley, 26 Vet. App. at 186-92.
193
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
28
statute is silent or ambiguous with respect to the specific issue, the question for the court is whether
the agency's answer is based on a permissible construction of the statute."194
Again, here are the relevant provisions. The statute states: "The Secretary may not
reimburse a veteran under this section 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."195 And the
regulation states: "VA will not reimburse a veteran under this section for any copayment,
deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to
pay under a health-plan contract."196
Let's assume for the sake of argument that section 1725(c)(4)(D)'s "any copayment or
similar payment" language is ambiguous and leaves a gap. In other words, VA rulemaking may
properly expand upon "or similar payment." The question is whether VA's inclusion of
"deductibles" and "coinsurance" (but not "balance billing"197) in the list of non-reimbursable items
is a permissible construction of section 1725. No matter what standard of review we use,198 it's
not. We hold § 17.1005(a)(5) is not based on a permissible construction of section 1725(c)(4)(D)
for two related, but distinct, reasons: (1) It's inconsistent with Staab's interpretation of section
1725, and (2) deductibles and coinsurance aren't "similar" to a copayment (and VA didn't
explain—to defeat arbitrariness—how they're "similar" to a copayment).
Let's start by discussing what a copayment, deductible, coinsurance, and balance billing
are. A "copayment" is a commonly used word (not simply legalese), and, when possible, courts
"assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'"199
Consumers of health insurance know that when they visit their doctors or seek urgent or emergency
care, they are expected to pay a small, fixed, and consistent amount for their visit, usually between
$20 and $50, when they receive their care. VA uses these types of small, fixed-cost copayments
for its extended care services.200 Black's Law Dictionary defines the term as: "a fixed amount that
a patient pays to a healthcare provider according to the terms of the patient's health care plan."201
The U.S. Centers for Medicare & Medicaid Services defines copayment as "a fixed amount ($20,
for example) you pay for a covered health care service after you've paid your deductible."202 In
Riemer v. Columbia Medical Plan, Inc., the Court of Appeals of Maryland defined a copayment
194
Id. at 844.
195
38 U.S.C. § 1725(c)(4)(D) (emphasis added).
196
38 C.F.R. § 17.1005(a)(5) (emphasis added).
197
See Resp't's Sur-Response to the Court's May 31, 2019, Order at 2-3.
198
See Chevron, 467 U.S. at 843-44.
199
Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Richards v. United States, 396 U.S. 1, 9
(1962)).
200
See 38 C.F.R. § 17.111(b)(1)(i)-(vii) (2019) (including copayments ranging from $5 to $97).
201
Copayment, BLACK'S LAW DICTIONARY (11th ed. 2019).
202
Copayment, HealthCare.gov, https://www.healthcare.gov/glossary/co-payment (last visited Aug. 7,
2019).
29
as "a relatively small fixed fee required of a patient by a health insurer . . . at the time of each
outpatient service or filling of a prescription."203 These various definitions are consistent, and they
inform our definition here: A copayment is a relatively small fixed fee that an insured party pays
when he or she receives care.
Ordinary consumers also know that, for many types of insurance coverage, there is a certain
amount of money that they must pay out-of-pocket before their insurance company will begin
covering their claim—commonly known as a "deductible." Per Black's Law Dictionary, a
deductible is "the portion of the loss borne by the insured before the insurer becomes liable for
payment."204 The U.S. Centers for Medicare & Medicaid Services defines a deductible as: "the
amount you pay for covered health care services before your insurance plan starts to pay." 205
Deductible amounts are a part of the insurance agreement between the consumer and the insurer
and are agreed upon when the parties enter their insurance contract. Although these costs are fixed,
they are not typically small. A 2018 survey conducted by the Kaiser Family Foundation noted that
"[t]he average deductible among covered workers in a plan with a general annual deductible is
$1,573 for single coverage."206 So, in short, a deductible is a relatively large but fixed cost that an
insured party pays before insurance begins to pay.
Next, we turn to coinsurance. Black's Law Dictionary does not define coinsurance.
However, Webster's Dictionary provides this definition: "health insurance in which the insured is
required to pay a fixed percentage of the costs of medical expenses after the deductible has been
paid and the insurer pays the remaining expenses."207 The U.S. Centers for Medicare & Medicaid
Services defines coinsurance as "[t]he percentage of costs of a covered health care service you pay
(20%, for example) after you've paid your deductible."208 This health care cost can vary depending
on the type and severity of care needed and the terms and conditions of an insurance contract. In
sum, then, coinsurance is a relatively large, variable cost that an insured party pays before
insurance begins to pay.
Finally, the Secretary asserts that balance billing is an example of a potentially
reimbursable cost that is a patient's "remaining liability" beyond a copayment, deductible, or
coinsurance.209 Balance billing is "[a] healthcare provider's practice of requiring a patient or other
responsible party to pay any charges remaining after insurance and other payments and allowances
203
747 A.2d 677, 687 (Md. 2000) (citing THE MERRIAM-WEBSTER DICTIONARY 177 (1994)).
204
Deductible, BLACK'S LAW DICTIONARY (11th ed. 2019).
205
Deductible, HealthCare.gov, https://www.healthcare.gov/glossary/deductible (last visited Aug. 7, 2019).
206
2018 Employer Health Benefits Survey, Henry J. Kaiser Family Foundation (Oct. 3, 2018),
https://www.kff.org/health-costs/report/2018-employer-health-benefits-survey.
207
Coinsurance, Merriam-Webster, https://www.merriam-webster.com/dictionary/coinsurance (last visited
Aug. 7, 2019).
208
Coinsurance, HealthCare.gov, https://www.healthcare.gov/glossary/co-insurance/ (last visited Aug. 7,
2019).
209
Resp't's Sur-Response to the Court's May 31, 2019, Order at 2-3.
30
have been applied to the total amount due for the provider's services."210 But both federal and state
law to some extent protects consumers against balance billing, 211 so it's not clear how many
veterans would actually bear these costs. And the Secretary doesn't allege anything or provide any
data that shows us that his regulation creates a different world than the one that his previous
regulation did. Nor does the legislative or regulatory history mention balance billing as a cost for
which Congress sought to reimburse veterans. So we won't discuss balance billing further. Now
that we have an idea of what we're talking about, we address the reasons why § 17.1005(a)(5) isn't
based on a permissible construction of section 1725.
First, no matter how you compare a copayment, deductibles, and coinsurance to determine
"similarity," as reflected in the Secretary's data, § 17.1005(a)(5)'s effect is what it is: It eliminates
in effect any potentially reimbursable, remaining liability for veterans who have partial coverage
from a health-plan contract.212 As of late, the Secretary even seems to acknowledge and embrace
this result; essentially, he posits that Congress gave something (i.e., "removed the partial health
insurance bar") that it took away simultaneously (i.e., "erected a bar that covers nearly all of the
same ground: the cost-share exclusion").213 Setting aside our first impression of that position as
inherently absurd, such a result directly contravenes how the statute works, which we explained in
Staab. Though Staab interpreted section 1725(b)(3)(B) specifically,214 it ends up being controlling
as to how we must construe section 1725(c)(4)(D) too. A minimum takeaway from Staab is that
veterans who have partial coverage from a health-plan contract are eligible for reimbursement of
"that portion of expenses not covered by a health-plan contract."215 As part of its holding, the Court
concluded that "Congress intended that veterans be reimbursed for the portion of their emergency
medical costs that is not covered by a third[-]party insurer and for which they are otherwise
personally liable." 216 But because § 17.1005(a)(5) in effect eliminates all possible remaining
liability, it's necessarily inconsistent with the statute as described in Staab. And we must construe
a statute "so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant, and so that one section will not destroy another unless the
provision is the result of obvious mistake or error."217 If we construed section 1725(c)(4)(D) such
that § 17.1005(a)(5) was valid under it, then we'd render insignificant those parts of the statute at
issue in Staab that allow for reimbursements to veterans with partial coverage.218 And, simply put,
210
Balance billing, BLACK'S LAW DICTIONARY (11th ed. 2019).
211
See Margaret Darling, Caitlin Brandt, Loren Adler, & Mark Hall, "Receive a surprise medical bill? Here
are two federal actions that may address surprise bills, BROOKINGS (Aug. 8, 2017),
https://www.brookings.edu/blog/usc-brookings-schaeffer-on-health-policy/2017/08/08/receive-a-surprise-medical-
bill-here-are-three-federal-actions-that-may-address-surprise-bills.
212
See supra pp. 11-12.
213
Resp't's Sur-Response to the Court's May 31, 2019, Order at 1-2.
214
28 Vet. App. at 53-54.
215
Id. at 54.
216
Id.
217
SUTHERLAND § 46:6; see Splane, 216 F.3d at 1068-69.
218
See, e.g., 38 U.S.C. § 1725(b)(3)(B)-(C).
31
one can only entertain the Secretary's arguments219 if one ignores Staab, which we can't and won't
do. 220 For veterans with some insurance coverage, § 17.1005(a)(5) has transformed section
1725(c)(4)(D)'s narrow exclusion into a gaping exception that swallows whole the section-1725
rule. Such a result is "patently absurd."221 And this we can't allow. We could stop there, but there's
a second reason why § 17.1005(a)(5) isn't based on a permissible construction of section 1725.
Even if one ignores Staab, deductibles and coinsurance are not "similar" to a copayment.
Before we can get into contrasting them, though, we must talk about the appropriate standard of
comparison. After all, it's impossible to decide whether two things are similar if you don't know
by what to judge them. The plain language of the statute contains guidance on the appropriate
standard of comparison: the key statutory phrase "any copayment or similar payment."222 From
that, we know any other excluded payment must be "similar" to a copayment. Specifically, similar
in amount and a fixed nature.223
The Secretary wants "cost-sharing" as the standard of comparison.224 But Congress didn't
use the umbrella phrase "cost-sharing" to group and exclude copayments, deductibles, and
coinsurance, even though Congress knows how to group them together this way and has done it
219
Resp't's Resp. to Am. Pet. at 13-24.
220
See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) ("Where there is an earlier panel or en banc opinion,
we apply a rule that in a subsequent case, a panel or single judge may not render a decision which conflicts materially
with such earlier panel or en banc opinion. In this way we assure consistency of our decisions.").
221
United States v. Brown, 333 U.S. 18, 27 (1948) ("No rule of construction necessitates our acceptance of
an interpretation resulting in patently absurd consequences.").
222
38 U.S.C. § 1725(c)(4)(D).
223
See, e.g., 155 CONG. REC. H4069-01 (daily ed. Mar. 30, 2009) (statement of Rep. Brown-Waite)
(explaining that the law was intended to "ensure that veterans are not saddled with massive emergency room bills"
(emphasis added)). Note also that Congress didn't want to penalize veterans who had some insurance coverage. See
155 CONG. REC. H4069-01 (daily ed. Mar. 30, 2009) (statement of Rep. Halvorson) (noting that "veterans do not
currently receive any reimbursement from the VA if they have third-party insurance that pays either full or a portion
of the emergency care," which "creates an inequity that penalizes veterans with insurance," and explaining that the
amendment "eliminates this inequity by requiring the VA to pay for emergency care in a non-VA facility, even if the
veteran holds a policy that will pay for any portion of their care").
224
Resp't's Resp. to Am. Pet. at 17-18. He argues that all three—copayments, deductibles, and coinsurance—
are similar because they are all cost-sharing tools, sharing the same basic function or purpose: to discourage clinically
unnecessary treatment. Id. The Secretary also asserts that other Federal programs view these three cost-sharing tools
as similar and provides examples. Id. at 18-19. Though he is correct that those are all superficially "similar" in that
they are cost-sharing devices, he didn't pick a workable standard of comparison. His standard is redundant of other
program criteria that go to establishing the emergent, clinically necessary nature of the care. See 38 C.F.R.
§17.1002(a)-(h) (2019). For example, condition (b) in 38 C.F.R. § 17.1002 provides that the treatment must be "for a
condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate
medical attention would have been hazardous to life or health." It is evident from VA's overall emergency care
regulation itself that any expenses for reimbursement in this context can only be for clinically necessary treatment.
This is yet another way of ruling out cost-sharing as the standard of comparison.
32
elsewhere.225 Congress has also referred to "copayments or cost shares"226 elsewhere, but again, it
didn't use such language here. Congress's chosen language means that our standard of comparison
is whether another payment is "similar" to a copayment, not whether another payment is classified
as a cost-sharing device. The latter inquiry has no basis in the statute language before us.
Now that we've determined the appropriate standard of comparison, let's compare. A
deductible is not "similar" to a copayment because, though it is fixed, it is not a relatively small
fee. Nor is coinsurance "similar" to a copayment because coinsurance is neither a relatively small
nor a fixed fee; it's a relatively large and variable fee based on a percentage. And upon finalizing
its rule that included § 17.1005(a)(5), VA made no effort to explain its bases for considering them
"similar" payments. 227 Therefore, § 17.1005(a)(5), which includes both deductibles and
coinsurance as "similar payment[s]," is not based on a permissible construction of section 1725.228
The class's right to the writ is clear and indisputable.
ii. Lack of Adequate Alternative Means
Having established that petitioner Wolfe has an indisputable right to relief, we turn to
whether she has shown that she lacks adequate alternative legal channels through which she may
obtain relief in this case. She has under the unique circumstances of this case.
A petitioner shows that she has exhausted and now lacks adequate alternative legal
channels if her pursuit of the alternative legal channels would amount to a "useless act." 229
Practical futility in terms of an administrative process can make a formal remedy insufficient and
amount to a useless act. "Resort to the administrative process is futile if the agency will almost
certainly deny any relief . . . because it . . . lacks jurisdiction over[] the matter."230 In colloquial
terms, we do not put form over substance.
225
E.g., 42 U.S.C. § 300mm-41(c)(1) (discussing "deductibles, copayments, coinsurance, other cost
sharing").
226
E.g., 10 U.S.C. § 1073 note (regarding the Pilot Program on Incorporation of Value-Based Health Care in
Purchased Care Component of TRICARE Program, known as Pub. L. No. 114-328, Div. A, Title VII, § 701(h), Dec.
23, 2016, 130 Stat. 2188).
227
See 83 Fed. Reg. 974.
228
The Secretary argues that petitioner Wolfe's interpretation would render section 1725's "or similar
payment" language superfluous. Resp't's Resp. to Am. Pet. at 19-20. Not so. Petitioner Wolfe suggests that it
"provide[s] [VA] flexibility in the event of changing terminology." Pet'rs' Reply to Resp't's Resp. to Am. Pet. at 6.
Indeed, she even quotes the Secretary, id., who wrote, "Congress's use of the phrase 'or similar payment' also affords
VA the regulatory flexibility to align this provision's scope with evolving health insurance practice and terminology."
Resp't's Resp. to Am. Pet. at 20.
229
Erspamer, 1 Vet. App. at 11; see Margolis v. Banner, 599 F.2d 435, 443 (CCPA 1979).
230
Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 107 (D.C. Cir. 1986).
33
The Secretary asserts only that a direct appeal through the administrative system is an
adequate alternative means of seeking petitioner's requested relief (i.e., invalidation of the
Regulation etc.). 231 Here, disputing the regulation's validity within the administrative appeals
process amounts to "a useless act" and would be futile because the Board doesn't have jurisdiction
to invalidate the regulation.232 Thus, petitioner lacks an adequate alternative legal channel because
the Board can't provide the relief she seeks.
iii. Issuance of the Writ is Warranted Given the Circumstances
"[I]t is important to remember that issuance of the writ is in large part a matter of discretion
with the court to which the petition is addressed."233 This case contains plenty of extraordinary—
if not unique—circumstances we have discussed extensively in this order, 234 Most recently
relevant, per VA's Office of the Inspector General, we know that VA "will take corrective actions
on claims determined to have been improperly denied for the presence of [OHI] after April 8,
2016" (the date Staab issued) and "anticipate[] implementation by late 2019."235 To be clear, this
audit didn't address the questions we confront in this case regarding § 17.1005(a)(5)'s validity. The
audit unearthed and corrected issues above and beyond those we discuss here. Though the report's
corrective actions aren't relevant on the surface, they do impact this case because affected veterans
will likely get caught up in "readjudications" that will only perpetuate the errors of law we address
in this order. Fortunately, we have the power and opportunity to intervene now to prevent
enormous bureaucratic waste that would result from VA's continued erroneous adjudications and
communications, so we will. We hold that issuance of the writ is warranted.
C. Remedy
Having determined that the regulation is invalid, the Court must now determine what relief
is appropriate to remedy the classwide harm. The petitioners initially asked the Court to declare
38 C.F.R. § 17.1005(a)(5) invalid because it is contrary to 38 U.S.C. § 1725(c)(4)(D); invalidate
the Secretary's decisions made under § 17.1005(a)(5) to the extent they denied reimbursement to
Wolfe Class members for medical expenses deemed deductibles or coinsurance; order the
Secretary to readjudicate these reimbursement claims under section 1725(c)(4)(D)'s proper
interpretation; and order such other relief as may be appropriate in the interest of justice and in aid
of the Court's jurisdiction.236 The Court will order the Secretary to do all of that plus other relief
that gets at the "corrective letters."
231
Resp't's Resp. to Am. Pet. at 11-13.
232
See 38 U.S.C. § 7104(c) ("The Board shall be bound in its decisions by the regulations of the Department
. . . .")
233
Kerr, 426 U.S. at 403 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112 n.8 (1964); Parr v. United States,
351 U.S. 513, 520 (1956)).
234
Supra Part II.
235
Office of Audits & Evaluations, Office of the Inspector Gen., Dep't of Veterans Affairs, Audit Rep. No.
18-00469-150, Veterans Health Admin.: Non-VA Emergency Care Claims Inappropriately Denied and Rejected (Aug.
6, 2019), at 15; see id. at 10.
236
Am. Pet. at 3-4.
34
We can't allow VA to send out "corrective" notices that contain the following language: "It
is important to note that VA has no legal authority to pay a Veteran's cost shares, deductibles, or
copayments associated with their other health insurance."237 Because § 17.1005(a)(5) is invalid,
and this statement is clearly derived from § 17.1005(a)(5), it's also an incorrect interpretation of
section 1725. Therefore, we'll also order the Secretary to stop issuing the Category A and C letters
and to strike the problematic language we've identified in this paragraph. In addition, the Secretary
must prepare a plan to correct the incorrect notices that have already been sent.
One final note. As for the readjudications' logistics, the Secretary stated he would process
Category A and C claims under the AMA and Category B claims as Legacy appeals.238 However,
he seems to ignore his own regulation, 38 C.F.R. § 3.2400, which delineates the standard for
determining under which system—Legacy or AMA—to adjudicate a claim.239 On remand, the
Secretary should look closely at this issue along with the others to ensure compliance with both
statute and regulation.
237
Resp't's Resp. to the Court's May 14, 2019, Order, Exs. 1 (Category A template), 3 (Category C template).
238
Resp't's Supp. Resp. to the Court's May 14, 2019, Order at 1-2.
239
38 C.F.R. § 3.2400(a)-(b) (2019).
35
Upon consideration of the foregoing, it is
ORDERED that the Wolfe Class is certified as defined here: "All claimants whose claims
for reimbursement of emergency medical expenses incurred at non-VA facilities VA has already
denied or will deny, in whole or in part, on the ground that the expenses are part of the deductible
or coinsurance payments for which the veteran was responsible." It is further
ORDERED that Mark B. Blocker, Esq., of Sidley Austin LLP, and Barton F. Stichman,
Esq., of the National Veterans Legal Services Program, are appointed as class counsel. It is further
ORDERED that 38 C.F.R. § 17.1005(a)(5) is invalid because it is contrary to 38 U.S.C.
§ 1725. It is further
ORDERED that the Secretary's decisions made under § 17.1005(a)(5), to the extent they
denied reimbursement to Wolfe Class members for medical expenses deemed deductibles or
coinsurance, in whole or in part, are invalid. It is further
ORDERED that Secretary must readjudicate these reimbursement claims under section
1725's proper interpretation. It is further
ORDERED the Secretary stop sending its corrective letters immediately because they
contain incorrect statements of what the law is, namely: "It is important to note that VA has no
legal authority to pay a Veteran's cost shares, deductibles, or copayments associated with their
other health insurance." And it is further
ORDERED that within 45 days of the date of the order the Secretary prepare and submit
to the Court for approval a plan for providing notice to veterans affected by the provision of notice
that contained an incorrect statement of the law concerning reimbursement of costs for non-VA
emergency care.
DATED: September 9, 2019 PER CURIAM.
FALVEY, Judge, dissenting: I respectfully dissent from my colleagues' decision to grant
mandamus relief. I would deny Ms. Wolfe's petition because her requested mandamus relief is not
in aid of our appellate jurisdiction.240 Nor does she demonstrate an indisputable right to a writ.
And, our statutorily prescribed appeals process provides her with adequate alternative means to
obtain her desired relief. Though I will focus my analysis on Ms. Wolfe, I would, for the same
reasons, deny mandamus relief for the Wolfe class.
Admittedly, we have authority under the AWA to "issue all writs necessary or appropriate
in aid of [our] jurisdiction[] and agreeable to the usages and principles of law." 28 U.S.C.
§ 1651(a); see also Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017) ("The [AWA]
unquestionably applies in the Veterans Court."). But "[t]he remedy of mandamus is a drastic one,
240
I agree with the Court's decision to dismiss Mr. Boerschinger's petition as moot.
36
to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976).
Mandamus relief is not appropriate unless three conditions are met: (1) The petitioner must
demonstrate a clear and indisputable right to the writ; (2) the petitioner must demonstrate the lack
of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as
a substitute for the appeals process; and (3) the Court must be convinced, given the circumstances,
that issuance of the writ is warranted. Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).
Because Ms. Wolfe's petition is not in aid of our jurisdiction and does not meet the requirements
for a writ, the Court should not grant mandamus relief.
1. Not in Aid of our Jurisdiction
The AWA authorizes us to issue only those writs that are in aid of our appellate jurisdiction.
28 U.S.C. § 1651(a). This is because the AWA is not an independent grant of jurisdictional
authority. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). The AWA does not expand a
court's jurisdiction. Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998). Rather, it is "a residual
source of authority" that allows us to protect our statutorily prescribed jurisdiction. Pennsylvania
Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). "It permits federal courts to fill
gaps in their judicial power where those gaps would thwart the otherwise proper exercise of their
jurisdiction." Monk, 855 F.3d at 1318. Or it "remove[s] obstacles to an appeal." Roche, 319 U.S.
at 26. But the AWA does not create jurisdiction where it does not already lie. In re Tennant,
359 F.3d 523, 530 (D.C. Cir. 2004) ("[M]andamus would otherwise be an original action, not in
aid of appellate jurisdiction.").
The party seeking a writ therefore must show "that the action sought by mandamus is within
the court's statutorily defined subject matter jurisdiction." In re Matter of Wick, 40 F.3d 367, 372-
73 (Fed. Cir. 1994). Our jurisdiction is defined by statute. Burris v. Wilkie, 888 F.3d 1352, 1357
(Fed. Cir. 2018). In 38 U.S.C. § 7252, Congress granted us appellate jurisdiction over final Board
decisions. That statute states that we have "exclusive jurisdiction to review decisions of the Board"
and that our review must be "on the record of proceedings before the Secretary and the Board." It
further provides that our review of final Board decisions is "limited by the scope provided in
section 7261." Section 7261 lists actions to take and standards to apply during our appellate review.
Of relevance here, the statute states that we may "decide all relevant questions of law," "interpret
. . . regulatory provisions," and "compel action of the Secretary unlawfully withheld or
unreasonably delayed." 38 U.S.C. § 7261(a); see also Martin v. O'Rourke, 891 F.3d 1338, 1343
(Fed. Cir. 2018) (section 7261 "provides the standards the . . . Court must use when reviewing
actions of the Secretary"). Taken together, section 7252 and 7261 allow us to decide questions of
law and compel unlawfully withheld secretarial action, among other things, in the context of
reviewing final Board decisions.
We thus may grant a petition for writ of mandamus when the relief sought has some sort
of relationship to a final Board decision over which we could exercise jurisdiction. See Cox,
149 F.3d at 1364-66 (addressing whether the appellant's fee agreement dispute could lead to a final
Board decision such that a writ of mandamus would be appropriate). But Ms. Wolfe's petition
lacks such a connection. She does not contend that the Secretary is refusing to process her claim,
unreasonably delaying its adjudication, or performing any other action that would prevent her
37
dispute from making its way to our Court.241 She doesn't want us to remove an obstacle. Instead,
she wants to skip the appeals process entirely and bring her regulatory challenge directly to the
Court.
She asks the Court to directly determine the validity of § 17.1005(a)(5) and find, in the first
instance, that VA incorrectly denied reimbursement under that regulation. Granting her requested
relief would thwart, not aid, our appellate jurisdiction. Because granting Ms. Wolfe's petition could
not lead to a final Board decision reviewable by this Court, and would, in fact, abrogate the need
for such a decision, her requests for relief are not in aid of our jurisdiction, and her petition must
be denied. Am. Legion v. Nicholson, 21 Vet. App. 1, 7 (2007); Yi v. Principi, 15 Vet. App. 265, 267
(2001) ("[T]he Court's jurisdiction to issue the order sought by the petitioner depends upon whether
the Court would have jurisdiction to review the final Board decision that would issue pursuant to
that order.").
The majority concludes that Ms. Wolfe's requests for relief are in aid of our jurisdiction for
two reasons. First, because "the regulation itself risks frustrating the exercise of our statutorily
granted jurisdiction over Board decisions." See ante at 16. And second, because the letters
notifying claimants they wouldn't be reimbursed for "cost-sharing" devices under the regulation
could discourage claimants from appealing. Id. But, this is true of everyone who has a
disagreement with any regulation promulgated by the Secretary. Put another way, the majority
says that we should issue an extraordinary writ whenever a claimant disagrees with a VA
regulation and gets a letter telling the claimant he or she was denied based on that regulation.
I simply do not agree. Merely citing a regulation that the petitioner believes is invalid is
not enough to warrant a writ of mandamus. Many decisions in the VA system turn on the
applicability or interpretation of a VA regulation, and "[t]he remedy of mandamus is a drastic one,
to be invoked only in extraordinary situations." Kerr, 426 U.S. at 402. Moreover, informing
claimants that their claims have been denied under § 17.1005(a)(5) is not the functional equivalent
of a refusal to act. The Secretary is required by law to inform a claimant of the bases on which VA
has denied her claim. 38 U.S.C. § 5104(b). Rather than creating a chilling effect, providing a
claimant the reason for a VA denial helps the claimant appeal a wrongful decision.
Nor do I agree with the majority that we have the authority to grant Ms. Wolfe's request
for direct regulatory review without the prospect of a final Board decision merely because we have
prospective jurisdiction over her claim. Our AWA authority to act in cases within our prospective
jurisdiction is not that unfettered. It is tied to the exercise of our actual appellate jurisdiction: we
have authority under the AWA to act in cases potentially within our jurisdiction when our action
is "in aid of the appellate jurisdiction which might otherwise be defeated." F.T.C. v. Dean Foods
Co., 384 U.S. 597, 603 (1966); see also McClellan v. Carland, 217 U.S. 268, 280 (1910) ("We
241
The majority notes that a November 20, 2018, letter from the Secretary states that Ms. Wolfe's appeal was
"closed." Ante at 10. If this letter showed the Secretary's refusal to process Ms. Wolfe's appeal, thus foreclosing the
possibility of a final Board decision addressing the denial of reimbursement, the AWA would give us the authority to
remove this obstacle to our appellate jurisdiction. See Roche, 319 U.S. at 26. But in her amended petition Ms. Wolfe
does not ask us to take this action. Rather, she maintains that her appeal to the Board is being processed and that she
is "continu[ing] to pursue her direct appeal." Am. Pet. at 10 n.2.
38
think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ
may issue in aid of the appellate jurisdiction which might otherwise be defeated."). Otherwise,
"[t]he mandamus would . . . be an original claim, not in aid of appellate jurisdiction." In re Tennant,
359 F.3d at 530.
Ms. Wolfe's status as a prospective appellant allows us to use our mandamus power only
if her requested relief were related to bringing her case within our appellate jurisdiction. But Ms.
Wolfe's petition does not request such relief. Instead, she asks us to rule in the first instance that
§ 17.1005(a)(5) is invalid and that the Secretary wrongfully denied reimbursement under that
regulation. In essence, she requests we exercise original jurisdiction over regional office denials
of reimbursement under § 17.1005(a)(5), rather than act in aid of our appellate jurisdiction over
final Board decisions. The AWA does not authorize us to act in these circumstances. Mandamus
in support of prospective jurisdiction, "like any exercise of appellate jurisdiction, [i]s limited to
review of 'proceedings in a cause already instituted.'" In re Tennant, 359 F.3d at 530 (quoting
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-76 (1803)).
Also, I do not find that the cases cited by the majority support granting a petition that would
effectively deprive the Court of our appellate jurisdiction over a final Board decision. Each of the
cases cited by the majority are tied to our actual or prospective appellate jurisdiction, particularly
those addressing unreasonable agency delay. As we explained in Erspramer v. Derwinski, we may
exercise our mandamus authority to address "inadvertent or intentional administrative delay"
because such delay "directly and adversely effects the potential and prospective appellate
jurisdiction of this court." 1 Vet. App. 3, 9 (1990). No case supports the majority's assertion that
we may exercise our mandamus power in a case where a petitioner's case is not within our actual
jurisdiction and granting the petition would remove the case from our prospective jurisdiction.
Rather, the AWA "extends to the potential jurisdiction of the appellate court where an appeal is
not then pending but may be later perfected." See F.T.C., 384 U.S. at 603 (emphasis added).
I do not read either Monk or Martin as providing us with the authority to act in the absence
of an actual or prospective Board decision. Monk dealt with the parties' complaint that they were
not able to obtain a Board decision because of VA's continual delays. Martin explained that
"[b]ecause the statutory obligation of a Court of Appeals to review on the merits may be defeated
by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable
delay in order to protect its future jurisdiction." Martin, 891 F.3d at 1342-43 (citing Telecomms.
Research & Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)). Neither case addressed whether
the Court could issue a petition in a case like this one, where Ms. Wolfe does not intend to seek a
Board decision before requesting that the Court review the merits of VA's denial of her claim.
Furthermore, though the majority states that Monk and Martin "seemed to assume" that section
7261 provides the Court with authority to address the Secretary's actions in the absence of an actual
or potential Board decision, ante at 17, neither case so held. Nor could they have done so, as the
Federal Circuit is bound by statute, and section 7261 does not provide an independent grant of
jurisdictional authority but, rather, defines the scope of our section 7252 jurisdiction to review
final Board decisions.
39
2. No Clear and Undisputable Right to a Writ
Ms. Wolfe contends that she is entitled to a writ because 38 C.F.R. § 17.1005(a)(5) conflicts
with the plain language of 38 U.S.C. § 1725(c)(4)(d) and runs afoul of Staab. But the regulation
at issue in this case is not the one invalidated in Staab. The Secretary amended § 17.1005(a)(5) in
response to Staab and he contends that the amended regulation is both a valid interpretation of
§ 1725(c)(4)(d) and consistent with his authority to "delineate the circumstances under which such
payments may be made." 38 U.S.C. § 1725(c)(1)(B).
The Secretary makes a good argument that the amended § 17.1005(a)(5) is a permissible
construction of section 1725. The regulation states that that "VA will not reimburse a veteran under
this section for any copayment, deductible, coinsurance, or similar payment that the veteran owes
the third party or is obligated to pay under a health-plan contract." This language mirrors the
language of section 1725(c)(4)(D), except for the addition of "deductible, coinsurance." The
Secretary argues that the addition of these terms is consistent with the statute because "deductibles
and coinsurance are also cost-sharing tools used in the health insurance industry and, as such, share
the same basic function or purpose as copayments." Secretary's Response to Am. Pet. at 17. He
argues that the term "cost sharing" is an umbrella term that captures deductibles, coinsurance,
copayments, and all other similar charges. And he points out that Ms. Wolfe's interpretation would
read out the term "similar payment" from the statute because "if deductibles and coinsurance are
not 'similar payment[s]" to copayments . . . , VA is not aware of any other form of payment that
would be." Id. at 19.
It may be that Ms. Wolfe is correct and the new regulation is invalid for the same reasons
invalidating the regulation in Staab. But she is not clearly and indisputably correct. The new
regulation and the Secretary's justification for it have not yet been the subject of a decision by our
Court. At the very least, the Secretary's reasoned and persuasive statutory-interpretation argument
shows that the invalidity of § 17.1005(a)(5) is not a foregone conclusion. Because there is no clear
and undisputable right to a writ of mandamus, I would deny her petition.
3. Adequate Alternative Means To Obtain the Requested Relief
We also should deny Ms. Wolfe's petition because the statutory appeals process provides
her with adequate means to obtain her desired relief. "Ordinarily mandamus may not be resorted
to as a mode of review where a statutory method of appeal has been prescribed or to review an
appealable decision of record." Roche, 319 U.S. at 27-28. Rather, a successful petitioner "must
demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that
the writ is not used as a substitute for the appeals process." Cheney, 542 U.S. at 380-81 (2004).
Although Ms. Wolfe asks the Court to review the validity of § 17.1005(a)(5) and reverse
VA decisions that have denied benefits under that regulation, she concedes that she is currently in
the process of obtaining a Board decision that addresses these issues. The regional office has
denied her claim for reimbursement, she has filed a Notice of Disagreement with that decision,
and she is awaiting a Statement of the Case that will allow her to perfect her appeal to the Board.
Am. Pet. at 10 n.2 (stating Ms. Wolfe's belief that her appeal remains open and pending and that
she "will continue to pursue her direct appeal" to the Board).
40
Ms. Wolfe seeks to use mandamus as a substitute for this appellate process. She would like
us to issue a writ in lieu of her completing the statutorily prescribed procedure of appealing a Board
decision because it takes too long and, in any event, the Board is obliged to apply VA regulations.
But "'extraordinary writs cannot be used as substitutes for appeals, even though hardship may
result from delay and perhaps unnecessary trial.'" Lamb v. Principi, 284 F.3d 1378, 1384 (Fed.
Cir. 2002) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953)). The AWA does
not authorize us to "issue ad hoc writs whenever compliance with statutory procedures appears
inconvenient or less appropriate." Pennsylvania Bureau of Corr., 474 U.S. at 43. Although
"hardship is imposed on parties who are compelled to await the correction of an alleged error at
an interlocutory stage by an appeal from a final judgment, . . . such hardship does not necessarily
justify resort to certiorari." U.S. Alkali Exp. Ass'n v. United States, 325 U.S. 196, 202 (1945).
This is particularly true here, where Congress has explicitly conditioned our jurisdiction
on a final decision of the Board. As the Supreme Court explained in Roche, when Congress has
determined that a court of appeals has jurisdiction over final decisions, it is not appropriate to issue
a writ of mandamus to circumvent that jurisdictional requirement. 319 U.S. at 29. "Where the
appeal statutes establish the conditions of appellate review an appellate court cannot rightly
exercise its discretion to issue a writ whose only effect would be to avoid those conditions." Id. at
30. Even when obtaining a final decision from the adjudicator below would be costly and
inconvenient, this "inconvenience is one which we must take it Congress contemplated in
providing that only final judgments should be reviewable." Id.
Finally, I note that a Board decision addressing veterans' claims could find facts in the first
instance and develop a record that the Court could base its review on. See 38 U.S.C. § 7252(b)
("Review in the Court shall be on the record of proceedings before the Secretary and the Board.");
Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate
fora for initial fact finding.").
The drastic remedy of mandamus is properly exercised when certain, well established
criteria are met. Because Ms. Wolfe's petition is not in aid of our jurisdiction, she lacks an
undisputable right to a writ, and there are adequate alternative means to obtain her desired relief,
she does not meet the criteria for issuance of a writ of mandamus. And because she is not entitled
to a writ, neither is the class. I therefore would deny her petition and that of the Wolfe class.
41