Wolfe v. Wilkie
| Decision Date | 09 September 2019 |
| Docket Number | 18-6091 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Amanda Jane Wolfe and Peter E. Boerschinger, Petitioners, v. Robert L. Wilkie, Secretary of Veterans Affairs, Respondent. |
Before GREENBERG, ALLEN, and FALVEY, Judges.
We consider today a petition for extraordinary relief filed by Amanda Jane Wolfe and Peter E. Boerschinger. The petition raises two claims related to Congress's command through 38 U.S.C. § 1725 that in certain circumstances the Department of Veterans Affairs (VA), reimburse veterans for the costs of their emergency medical care at non-VA facilities.[1] When petitioners Wolfe and Boerschinger each required non-VA emergency medical care and respectively sought reimbursement for a $2, 354.41 coinsurance charge and a $1, 340 deductible charge, respectively, VA refused to reimburse them. Those denials began the journey leading to today's decision.
Petitioner Wolfe's claim concerns the validity of a regulation VA adopted in part to implement section 1725: 38 C.F.R. § 17.1005(a)(5). In her petition she asserts the regulation is invalid and requests that the Court strike it down as inconsistent with Congress's directive. Petitioner Boerschinger's claim focuses on VA's provision misinforming veterans about this Court's interpretation of section 1725 in Staab v. McDonald.[2] The petition requests that the Court order VA to correct its error by among other actions, notifying affected claimants and readjudicating affected claims. What's more, for each claim, the petition requests that the Court certify a class. Just on what we have said thus far, it should be clear that we face a complex situation procedurally, substantively, and remedially.
Because the situation is so complex, this order is necessarily lengthy and, at times, likely dense. So, to guide the journey through this order, before we consider the trees, we'll take a look at the forest-the map, the big picture. In plain English, the case boils down to this: Before Staab VA wrongly interpreted and administered section 1725 by categorically denying claims for reimbursement for non-VA emergency medical care whenever a veteran had any insurance covering the service at issue. Then, in Staab, we authoritatively corrected VA's misunderstanding of section 1725, definitively and unambiguously holding that under the statute Congress did not exclude veterans with any insurance covering a given medical service from potential reimbursement for the expense of the medical service. So far so good. We have a court correcting an incorrect agency interpretation of a statute. This happens all the time in our system of government. But as it turns out, things took a decidedly unexpected turn.
After Staab, VA adopted a new regulation, purportedly to implement Staab. We'll assume such regulatory action was appropriate, meaning that VA had a statutory gap to fill with a regulation. As we will explain, when it adopted 38 C.F.R. § 17.1005(a)(5) in Staab's wake, VA excluded from reimbursement nearly every type of expense a veteran could have incurred if he or she had insurance covering the non-emergency VA medical service at issue. So, after Staab, VA adopted a regulation that functionally creates a world indistinguishable from the world Staab authoritatively held impermissible under the statute. As the petitioners put it, "post-Staab, insured veterans are in exactly the same monetary position with respect to insured claims as they were pre-Staab."[3] Throughout multiple rounds of briefing and at oral argument, no one (including the Court) was able to come up with a single example of something that would not have been reimbursable pre-Staab that is reimbursable post-Staab. The Secretary failed to provide an example in his initial response to the amended writ petition; at oral argument; in his response to the Court's May 14, 2019, order; in his supplemental response to the May 14, 2019, order; and in his response to the Court's May 31, 2019, order. At the eleventh hour, the Secretary asserts balance billing as an example, [4] but as we'll explain later, this flimsy example can't save his thoroughly unpersuasive position. The Agency has effectively rolled back the clock and, with no transparency, essentially readopted a position we have authoritatively held inconsistent with Congress's command.
Recognizing this is what has happened is-quite frankly-startling enough. It's difficult to conceive how an agency could believe that adopting a regulation that mimics the result a Federal court held to be unlawful is somehow appropriate when the statute at issue has not changed. But there is more. Even after we decided Staab, and after VA dropped its appeal of Staab, VA was affirmatively informing veterans that they were not entitled to reimbursement for non-VA emergency medical care if they had any insurance covering the service at issue. In other words, the Agency was telling veterans that the law was exactly opposite to what a Federal court had held the law to be. Who knows how many veterans relied on such a misrepresentation-for that is what it was-in deciding not to appeal VA decisions that denied reimbursement for non-VA emergency medical care
All of this is unacceptable. And as we explain below, such an extraordinary situation demands extraordinary relief. For the reasons that follow, the Court will certify the class proposed by petitioner Wolfe concerning the invalidity of 38 C.F.R. § 17.1005(a)(5), hold the regulation unlawful, and provide relief.[5] We will also dismiss as moot petitioner Boerschinger's motion to certify a class, though, as we will explain, as part of our order in the Wolfe class we will effectively provide the substance of the relief he seeks.
We take one last look at the map. On our journey, we will first discuss statutes, regulations, and caselaw, as well as the facts of the petitioners' claims. Next, we will consider our jurisdiction. On that question, we'll conclude we lack jurisdiction over petitioner Boerschinger's claim because his claim no longer involves a live case or controversy. But, we will explain why we have jurisdiction over petitioner Wolfe's claim. After we dispense with these critical jurisdictional issues, we will consider whether we should certify a class concerning petitioner Wolfe's claim. We will conclude that a class is appropriate under the circumstances we face. Then, we will consider whether the class prevails under the demanding standard governing issuing extraordinary writs. We will conclude the class is entitled to a writ here. And finally, we will turn to the remedy called for by the facts.
i. Numerosity ......................................................................................................................... 20
ii. Commonality ..................................................................................................................... 20
iii. Typicality ....................................................................................................................... 222
iv. Adequacy of Representation ............................................................................................. 23
v. Federal Rule of Civil Procedure 23(b) ........................................................................... 244
vi. Adequacy of Class Counsel Under Federal Rule of Civil Procedure 23(g) .................. 255
vii. Superiority ....................................................................................................................... 26
viii. Opt-Out and Notice ........................................................................................................ 27
ix. Certification of the Class ................................................................................................. 27
i. Clear and Indisputable Right to the Writ ........................................................................... 28
ii. Lack of Adequate Alternative Means .............................................................................. 333
iii. Circumstances Warranting a Writ ................................................................................... 34
Where we've been says a lot about where we're going. Two decades ago, Congress enacted section 1725 to reimburse veterans...
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