Argument Preview

We are previewing three cases scheduled to be argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight a veterans case, Wolfe v. McDonough. In this case, the Secretary asks the Federal Circuit to reverse a decision of the Court of Appeals for Veterans Claims, which “granted a petition for a writ of mandamus filed by Ms. Wolfe on behalf of a class of claimants to invalidate 38 C.F.R. § 17.1005(a)(5) and require [the Department of Veterans Affairs] to readjudicate and grant claims for reimbursement of coinsurance and deductibles.” The government’s appeal attracted three amicus briefs, all arguing against the government’s position. This is our argument preview.

Section 17.1005(a)(5) states that the “VA will not reimburse ‘any copayment, deductible, coinsurance, or similar payment that a veteran owes the third party or is obligated to pay under a health-plan contract.’”

In his opening brief, Secretary McDonough argues the “Veterans Court made multiple, independent legal errors when it granted Ms. Wolfe’s petition.” First, he argues, “[m]andamus was not appropriate” here because “Ms. Wolfe never asserted that anything was preventing her from obtaining Veterans Court review,” and if she had “simply followed the appeals process laid out by Congress in title 38, she could have obtained Veterans Court consideration.” Second, McDonough contends, “the writ impermissibly expanded the Veterans Court’s jurisdiction” by allowing a direct challenge instead of requiring review of a Veterans Board decision. Third, he maintains, “the writ impermissibly expanded the Veterans Court jurisdiction to initial VA decisions.” Fourth, he contends, “the Veterans Court erred when it held that title 38 did not provide Ms. Wolfe with adequate alternative means to obtain her desired relief.” Fifth, McDonough argues, “the Veterans Court erred when it held that Ms. Wolfe had a clear and indisputable right to the writ” because the lower court “ignored Congress’s delegation of authority to VA to delineate the terms of reimbursement.” Finally, McDonough argues, the class of claimants in the class action was expanded improperly because the lower court lacked jurisdiction over their claim categories and “thus erred when it included them.”

In their response brief, Amanda Wolfe and Peter Boerschinger argue that “[t]he VA’s appeal from the writ is entirely without merit” because it was “‘an extraordinary situation’ that demanded ‘extraordinary relief.’” First, they contend, “there is no jurisdictional problem because the Veterans Court had prospective jurisdiction over Ms. Wolfe’s claim and those of the class.” Second, they argue, the three “elements of mandamus were satisfied.” Third, they maintain, the challenges to the class action members were “not made below and are waived, and are without merit in any case.”

In his reply brief, McDonough again argues that granting the petition for a writ of mandamus “to invalidate a substantive veterans’ benefits regulation” was not appropriate because the claimant-appellees “had two adequate means to obtain that desired relief.” McDonough then reiterates from his opening brief the six arguments of errors made by the lower court.

As mentioned, the case attracted three amicus briefs, all in support of the claimant-appellees.

The National Law School Veterans Clinic Consortium argues in its amicus brief for “affirmance of the decision issued by the Veterans Court, as VA’s actions will impose immense financial burden upon veterans.”

The Disabled American Veterans, Paralyzed Veterans of America, Veterans of Foreign Wars, and the American Legion filed an amicus brief together, making three arguments. First, they contend, the Veterans Court has broad statutory authority to “craft effective relief for veterans,” which includes prospective jurisdiction and class action relief. Second, they argue, the “Veterans Court appropriately provided class action treatment.” Third, they contend, “this Court should reject the Secretary’s attempts to elevate its analytical quibbles into jurisdictional concerns” regarding the “three broad sets of claimants” in the class.

A group of law professors also filed an amicus brief making two arguments. First, they contend, the “All Writs Act grants the Veterans Court authority to issue writs in aid of its jurisdiction over Board decisions, including writs in aid of the Veterans Court’s prospective jurisdiction over such decisions.” Second, they argue, “[t]he Veterans Court acted within its discretion when it concluded that mandamus was appropriate in this case” because “exhaustion of administrative remedies would be futile.”

This case is scheduled to be argued on Tuesday, December 7. We will report on developments.