This week is Court Week at the Federal Circuit, with hearings starting today. As it has for some time now, the Federal Circuit is providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel. In total, including a case set to be argued next week, the court will convene 15 panels to consider about 61 cases. Of these 61 cases, the court will hear oral arguments in 48. Of these argued cases, three attracted amicus briefs: two veterans cases and a benefits case. Here’s what you need to know about these three cases.
As explained in our argument preview, in this veterans case the Secretary of Veterans Affairs 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.”
According to the Secretary, “[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.” Moreover, on the merits, the Secretary claims, the lower court “ignored Congress’s delegation of authority to VA to delineate the terms of reimbursement.”
For her part, Wolfe argues that “[t]he VA’s appeal from the writ is entirely without merit” because it was “‘an extraordinary situation’ that demanded ‘extraordinary relief.’”
This case attracted an amicus brief from The National Law School Veterans Clinic Consortium and another from a group of law professors. Both briefs support Wolfe.
Eric P. Bruskin will argue for the Secretary.
Sean C. Griffin will argue for Wolfe.
This argument is scheduled to take place on Tuesday, December 7, in Courtroom 402 at 10:00 A.M. Eastern.
As explained in our argument preview, in this case, Military-Veterans Advocacy, Inc. appeals a denial of rulemaking by the Secretary of Veterans Affairs that would have sought to extend the presumption of herbicide exposure to veterans who served on Guam from January 9, 1962, through December 31, 1980; Johnston Island from January 1, 1972 until September 30, 1977; and American Samoa.
On the merits, MVA contends “[t]he Secretary’s denial of MVA’s petition was contrary to law because it was based on an impermissible interpretation of the Agent Orange Act” given that it “conflicts with the plain text of the Act, its purpose, and its history.”
The Secretary responds by noting, first, that “[a]n agency decision not to institute a requested rule may only be overturned in ‘the rarest and most compelling of circumstances.’” And he points out that, while the Secretary refused to create a presumption of exposure, “the lack of a presumption would not foreclose veterans from proving herbicide exposure in their individual claims.”
This case attracted an amicus brief from the Speaker of the Guam Legislature and Association of the U.S. Navy, both in favor of MVA.
James Anglin Flynn will argue for MVA.
Meen Geu Oh will argue for the Secretary.
This argument is scheduled to take place on Thursday, December 9, in Courtroom 402 at 10:00 A.M. Eastern.
As explained in our argument preview, in this case Cross asks the Federal Circuit to reverse a decision of the Merits Systems Protection Board denying her survivor benefits when her deceased former husband failed affirmatively to re-elect survivor benefits during the few months between their divorce and his death.
Cross contends that “evidence of intent to provide a spousal annuity following divorce is a well-established basis for the entitlement of a former surviving spouse annuity in circumstances such as the instant case.”
On the merits, the Office of Personnel Management argues that survivor benefits were properly denied “because a preponderance of the evidence supports the Board’s finding that Mr. Cross failed to re-elect a survivor annuity on Ms. Cross’ behalf following their divorce.”
This case attracted an amicus brief from the Merit Systems Protection Board. It argues that Cross “timely filed an appeal” with the Federal Circuit when Cross appealed to the Federal Circuit before the Board’s holding became final.
Michelle Bercovici will argue for Cross.
Ioana Cristei will argue for OPM.
This argument is scheduled to take place on Wednesday, December 15, in Courtroom 201 at 10:00 A.M. Eastern.