In December, the Federal Circuit heard oral argument in Wolfe v. McDonough. We have been following this veterans case because it attracted three amicus briefs in support of the plaintiff-appellee, Wolfe. On appeal, the Secretary of Veterans Affairs asks the Federal Circuit to reverse the Court of Appeals for Veterans Claims, which “granted a petition for a writ of mandamus filed by 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.” Judges Dyk, Reyna, and Stoll heard last week’s argument. This is our argument recap.
Eric P. Bruskin argued for McDonough. He claimed the Veterans Court made multiple errors in granting mandamus and wanted to focus on two of them. First, he argued, the plaintiffs had alternative methods to obtain relief. Second, he maintained, the Veterans Court does not have jurisdiction to grant mandamus under these circumstances.
Regarding alternatives for relief, Bruskin argued the relevant statute offers numerous remedies, and Bruskin claimed previous cases have held that, if there is an adequate alternative remedy, then granting mandamus is improper. On this point, Judge Dyk asked if it is really an alternative if the matter is just going to come back to the court in the future. Bruskin responded by noting, first, that building a record would help Wolfe and, second, going through the process of getting a board decision before appealing to the Veterans Court was designed by Congress. Bruskin also noted that a “502 Action” is a secondary option that allowed direct review of the relevant rulemaking within six years.
Judge Reyna asked if a particular opinion decided by the Veterans Court in 2016 is binding in this case, as was argued by the appellee. Bruskin argued it is not because the government can always appeal to this Court on any issue and Veterans Court cases are not binding on the Federal Circuit.
Judge Stoll inquired if the All Writs Act could allow a court to find jurisdiction in this case. Bruskin argued here Wolfe just had to wait for a board decision before she would have been allowed to appeal. Therefore, he maintained, invocation of the All Writs Act would be improper. Her path to appeals, he argued, were not blocked.
Judge Stoll also inquired as to what would occur if the writ of mandamus was found to be improperly granted in this case. Bruskin argued the case would be remanded to the board for a decision and creation of a record, and from there it could then be appealed to the Veteran’s Court and potentially this court, if either side desired.
Judge Dyk switched topic to the relevant regulation and the proper construction of relevant statute. He asked if Bruskin had any knowledge of legislative history. Judge Dyk said he understood that the VA objected to co-payments and deductibles being included in the statute, but did not object to co-insurance payments. Judge Dyk inquired if this “middle path” reading of the statute (that allows co-insurance payments, but not co-payments and deductibles) is reasonable. Bruskin noted he would not object to that reading of the statute. He argued, however, that, in the context of this case, a grant of mandamus requires co-payment and deductibles to be unreasonable (in addition to co-payments). He argued that a finding that just co-payments are unreasonable would not provide a basis to throw out the entire regulation. Bruskin argued that, even if the regulation may fall on appeal, that is not enough in this case to grant mandamus.
Judge Stoll asked what level of incorrectness will warrant granting mandamus. Bruskin argued that, for mandamus, the regulation must be clearly and undisputedly unreasonable, which is higher and more than unreasonable than the standard for a regular review.
Sean Christopher Griffin argued for Wolfe. Judge Dyk immediately asked Griffin to comment on whether a particular opinion is binding on the court and VA. Griffin noted that the opinion is precedential, but argued it is not binding on the Federal Circuit. He argued, however, that the regulation was found in that opinion not to be valid as a matter a law. So, he maintained, given that the government did not appeal that decision, the regulation should “now be dead.” In response, Judge Dyk noted the government has the right to relitigate any issue in a subsequent case as long as there is a viable appeal route for future cases.
Changing topics to the standard for granting mandamus, Griffin argued the level of clear and indisputable first requires the court to decide what the law is before deciding if regulations are unreasonable. As such, Griffin argued, the case effectively turns on the merits. In response, Judge Reyna asked about a situation, such as this, where the merits are not clear. Griffin maintained that the legislative history eliminates all three payments at issue here (co-payments, deductibles, and co-insurance).
Judge Stoll inquired whether Griffin would agree that the middle-ground reading by Judge Dyk is reasonable. Griffin argued it is not reasonable because deductibles are such an important and large part of liability. He argues charging for co-insurance would not be reasonable. Judge Dyk noted Griffin was making policy arguments rather than arguments about the language or legislative history. In response, Griffin argued the effect of the statute on veterans must be considered when considering if it reasonable. He also pointed to the pro-veteran lens with which all veterans statutes must be considered.
Judge Stoll asked if the avenues for both direct review and the standard review process discussed by the government should dissuade granting a mandamus. Griffin argued that in 2018 a direct review to the Federal Circuit in a “502 action” was required to be initiated within 60 days of the regulation’s creation. As a result, it was not available to Wolfe. He noted, however, that the time frame for this direct appeal has since been expanded to six years and Wolfe would today be allowed to bring this action. Griffin also contended, however, that the two paths offered by the government do not allow for class actions.
In response, Judge Dyk asked why an individual remedy would not be a viable remedy. Griffin argued that the unreasonable delay of five year to get a Board decision and the potential harm to all veterans makes mandamus necessary. Judge Dyk further asked if mandamus should be granted for any important issue and when Griffin thinks it is appropriate. Griffin contended that any “basic and undecided question of law that will effect innumerable cases” is eligible for mandamus. Also, he argued, Supreme Court decisions have allowed for writs of mandamus in cases where there is an available individual alternative remedy. Further, Griffin noted, instances of improper venue have been allowed by the Federal Circuit to be remedied via mandamus.
In rebuttal, Bruskin argued that there was no unreasonable delay in this case to help establish grounds for mandamus because it was not claimed at the lower court and the appeal was timely. In response, Judge Dyk asked about the average five year wait for board decision. Breskin argued that comparing this case to an average case is not allowed because that is speculative and there must be proven obstruction in a case to warrant mandamus.
Bruskin also argued there is built in tension between the statute and allowing a class action. He claimed the Veterans Court is using a class action to try and overcome limits of its jurisdiction. Bruskin notes mandamus is inappropriate in this situation unless there is undue delay before a board decision. In Bruskin’s point of view, the Veteran’s Court claimed jurisdiction inappropriately before a timely board decision was rendered. This issue, Bruskin argues, of not waiting for the board and not following the statutory scheme will be present itself in future cases. He argued the statutory scheme should be respected and the jurisdiction of the Veterans Court should not be expanded inappropriately.
We’ll continue to monitor the case and report on any developments.