Wolfe v. McDonough


Issue(s) Presented

“Congress directed the Department of Veterans Affairs (VA) to reimburse certain out-of-pocket expenses that veterans participating in VA’s healthcare system incur obtaining emergency treatment at non-VA healthcare facilities for non-service-connected conditions. Congress also directed VA to ‘delineate the circumstances under which such payments may be made’ and prohibited VA from reimbursing ‘any copayment or similar payment a veteran owes under a healthcare plan contract’ for such care. 38 U.S.C. § 1725(c)(1)(B), (4)(D). VA’s implementing regulations state, in part, that 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.’ 38 C.F.R. § 17.1005(a)(5). Under this regulation, VA denied a claim for reimbursement of a coinsurance expense that resulted from treatment petitioner-appellee, Amanda Wolfe, received in 2016. Ms. Wolfe initiated an appeal to the Board of Veterans’ Appeals (board). But instead of waiting for the board to decide her appeal, Ms. Wolfe immediately petitioned the Veterans Court for a writ of mandamus on behalf of a class of claimants to invalidate § 17.1005(a)(5) and require VA to readjudicate and grant claims for reimbursement of coinsurance and deductibles.”

“In the decision precipitating this appeal, the Veterans Court (1) certified a class of claimants with claims for coinsurance and deductibles that VA has denied or will deny, (2) issued a writ that invalidated § 17.1005(a)(5), and (3) required VA to readjudicate and grant claims for coinsurance and deductibles, leading to these issues on appeal:”

1. “Whether the Veterans Court erred when it issued a writ of mandamus that did not aid its exercise of actual or prospective jurisdiction.”

2. “Whether the Veterans Court erred when it issued a writ of mandamus that expanded its jurisdiction.”

3. “Whether the Veterans Court erred when it held that Ms. Wolfe was entitled to a writ of mandamus because she (1) did not have adequate alternative means to obtain her desired relief and (2) had a clear and indisputable right to the writ.”

4. “Whether the Veterans Court erred when it certified a class that includes claims over which the court lacks jurisdiction.”


1. In regard to Ms. Wolfe’s argument “that mandamus is available in aid of the Veterans Court’s prospective jurisdiction”: “First, this cannot justify mandamus with respect to Ms. Wolfe herself; she was not deterred and filed an appeal with the VA. Second, as to veterans who never filed claims, even assuming Ms. Wolfe could serve as the class representative, mandamus does not aid prospective jurisdiction where a party has not initiated any proceeding whatsoever.”

2. “Ms. Wolfe notes the Veterans Court’s finding that the administrative appeals process would have been ‘futile because the Board doesn’t have jurisdiction to invalidate the regulation.’ J.A. 34. We rejected this reasoning in Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998). The fact that the Board could not address the issue does not mean that the appeals process is futile. In considering an individual case, the Veterans Court and this court can consider a regulation’s validity. 38 U.S.C. §§ 7261(a)(3), 7292; see, e.g., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). We additionally note that Ms. Wolfe could have petitioned this court (and still can) for review of the similar payments regulation pursuant to 38 U.S.C. § 502, and Ms. Wolfe has not alleged that this avenue is futile or subject to delay. Indeed, the mandamus proceeding itself appears to constitute the very kind of non-case-specific review of the regulations that is vested exclusively in this court under § 502.”

3. “It is well established that mandamus is unavailable when there is an adequate remedy by appeal. . . . Here, Ms. Wolfe had options for appeal that were adequate remedies. When she petitioned for the writ, Ms. Wolfe was still pursuing her administrative appeal at the VA. There has been no showing that this was an inadequate remedy. . . . The fact that the Board could not address the issue does not mean that the appeals process is futile.”

4. “Because we conclude that mandamus was inappropriate, we need not and do not reach the issue of class certification.”

“Mandamus was not available in this case because the petitioner did not have a clear and indisputable right with respect to deductibles and had other adequate legal remedies by appeal. We reverse the Veterans Court’s grant of the petition for a writ of mandamus.”