Argument Recap / Panel Activity

Earlier this month, the Federal Circuit heard oral argument in Beaudette v. McDonough. In this case, the Federal Circuit is reviewing whether the Court of Appeals for Veterans Claims erred in issuing a writ of mandamus to allow the Board of Veterans’ Appeals to hear appeals of adverse decisions pertaining to the Department of Veterans Affairs’ Program of Comprehensive Assistance for Family Caregivers. Judges Moore, Dyk, and Stoll heard the argument. This is our argument recap.

Sosun Bae argued for the government. She began by arguing that the Court of Appeals for Veterans Claims erred in granting the writ of mandamus by failing to “grapple with the meaning of the term ‘medical determinations'” within the relevant regulation. She argued the court cannot ignore the term because “Congress dedicated an entire subsection of the statute to specifying that Caregiver Act decisions are considered to be medical determinations,” which are not reviewable.

One judge asked whether there are “any other statutes that purport to limit judicial review of agency action” solely on the “words in a regulation.” Bae, in response, argued that “medical determination has to mean something,” referring to the “cardinal rule” that words should not be “rendered meaningless” in a statute. The judge responded by emphasizing that “it seems strange” that, if the purpose of the statute is “no judicial review,” why Congress did not just write “no judicial review.” The judge went on to focus on the regulation itself. After emphasizing how the first sentence of the regulation indicates “the Board has appellate jurisdiction over decisions related to in-home care,” the judge focused on the next sentence, which discusses “medical determinations.” Bae, in response, pointed out how the “third sentence of the regulation” states that “medical determinations are beyond the Board’s jurisdiction.”

Another judge then emphasized how the regulation in question provides examples of medical determinations, including “appropriateness of specific types of medical care.” This judge asked how court could “say ‘medical determinations’ means anything in light” of the examples included in the regulation. The judge emphasized that the language “needs to be read in light of the other language in the regulation.”

A judge asked about the implementing statute for the regulation and whether it authorizes Board review. Bae responded by referencing the Veterans Judicial Review Act, arguing that “there was nothing in the VJRA that would have nullified, absent language or intent to do so,” the language in the Caregiver Act.

Next a judge asked about the current “state of issues with regard to ongoing cases” before the Board. Bae indicated that Veterans Affairs has allowed Board appeals of Program of Comprehensive Assistance for Family Caregivers decisions. In response, the judge asked why the “Board did not dismiss” any such appeal “for lack of jurisdiction.”  Bae clarified that the “Board did not act” and that the “Board did not consider the appeal.” The judge then asked why the government did not try to expedite this appeal or get a stay and why the government sent “430,000 notices to people saying they have appeal rights.” In response, Bae indicated she did not want to discuss the internal processes of the VA, but she did indicate that a stay was discussed. The judge then asked if the VA could provide updated data pertaining to review decisions.

Another judge asked why the relevant regulation was not amended after the Caregiver Act. Bae stated that, “at the time the PCAFC and its amendments were passed, the VA interpretation was that subsection C . . . exempted PCAFC decisions from Board review.”

In her conclusion, Bae emphasized that the relevant regulation “specifically does exempt medical determinations from Board review and Congress specifically construed the Caregiver Act decisions as medical determinations.”

Igor V. Timofeyev argued for Beaudette. Timofeyev argued he can win the case even with the relevant regulation staying “on the books.” He contended “the regulation actually seems inconsistent” with the relevant statute, because the statute “says that all final decisions for the Secretary shall be made by the Board and then this regulation withdraws” a subset of decisions from the Board. Timofeyev alternatively argued the Caregiver Act solely addresses decisions concerning care or treatment and does not “extend to determination of eligibility, which have nothing to do with medical judgment.”

A judge asked if he is interpreting the Caregiver Act as “having limited applicability in terms of precluding Board review.” Timofeyev agreed, stating that “medical determination are decisions affecting furnishing of assistance or support” and “eligibility decisions are not really decisions affecting the treatment or support.” He emphasized that the regulation only excepts a “subset of decisions” from Board review and “expressly authorizes the Board to review questions of eligibility” and to make determinations of what is reviewable.

After indicating Timofeyev’s position shows how “everything can be consistently interpreted,” a judge indicated how she reads the “Veterans Court’s decision as more broadly stating review authority.” She asked if the Veterans Court went too far what should be subject to review. Timofeyev emphasized that the question before the Veterans Court was “quite narrow” and was solely if the term “medical determination” withdraws all judicial review. He argued the Veterans Court did not construe the regulation, but rather addressed the specific language of “medical determination.”

At this point in the argument, a judge asked Timofeyev to work with the government to prepare a joint filing of statistics of “how many notices of appeal” and Board decisions were processed in 2023.

In rebuttal, Bae disagreed with the interpretation of the statute put forth by Timofeyev. Moreover, Bae argued, the interpretation was not included in the response brief or considered by the Veteran’s Court. Bae further disagreed with Timofeyev’s interpretation of the regulation. Bae argued that “furnishing of assistance or support” includes all assistance or support decisions under the Caregiver Act, including “veterans who are receiving family caregiver support.”

A judge asked how she can reject the “reasonable positions” that the “Board can decide what amounts to clinical or judgmental treatment and therefore” what is subject to review. In other words, the judge asked, is the Board “entitled to decide what it has jurisdiction over.” Bae responded that this is a “new argument,” but she believes that any decision affecting eligibility includes the “furnishing of assistance or support.”  

A judge asked if Bae would prefer option one that “expressly exempts” domiciliary care from medical determination” or option two, a “reasonable interpretation of all things that [Timofeyev] advocated.” Bae responded she would prefer the “second to the first,” but argued that was not “what Congress intended.”

A judge asked why Bae did not make the “administrative nightmare argument.” Bae responded that the government’s brief did include an argument that allowing appeals would overwhelm the Board.

Bae concluded by emphasizing that there is a statute that deals with domiciliary care that is eligible for Board review, and, she continued, it does not include the family caregivers program.  

We will continue monitoring this case and report on developments.