Veteranclaims’s Blog

March 17, 2022

Wolfe v. McDonough, No. 2020-1958 (Decided: March 17, 2022); Department of Veterans Affairs’ (“VA’s”) reimbursement of hospital visits costs to veterans enrolled in the VA health care system; copayment or similar payment; deductibles are excluded from reimbursement under the correct interpretation of 38 U.S.C. § 1725(c)(4)(D); 38 C.F.R. § 17.1005(a)(5) (“VA will not reimburse a veteran . . . for any copayment, deductible, coinsurance, or similar payment that the veteran owes the third party or is obligated to pay under a health-plan contract.”);

Filed under: Uncategorized — veteranclaims @ 6:27 pm

United States Court of Appeals for the Federal Circuit


AMANDA JANE WOLFE, PETER BOERSCHINGER,
Claimants-Appellees
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant


2020-1958


Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-6091, Judge Joseph L. Falvey,
Jr., Judge Michael P. Allen, Judge William S. Greenberg.


Decided: March 17, 2022


SEAN CHRISTOPHER GRIFFIN, Sidley Austin LLP, Washington,
DC, argued for claimants-appellees. Also represented
by MARK BRUCE BLOCKER, KARA L. MCCALL,
Chicago, IL; RENEE A. BURBANK, BARTON FRANK STICHMAN,
I, National Veterans Legal Services Program, Washington,
DC.
ERIC P. BRUSKIN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellant. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.;
Case: 20-1958 Document: 67 Page: 1 Filed: 03/17/2022
2 WOLFE v. MCDONOUGH
SUSAN BLAUERT, UDUAKABASI HENRY, JONATHAN KRISCH,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, for amici curiae The American Legion,
Disabled American Veterans, Paralyzed Veterans of
America, Veterans of Foreign Wars. Also represented by
BENJAMIN PAUL CHAGNON; ELIZABETH MOULTON, Menlo
Park, CA.
JILLIAN BERNER, Veterans Legal Support Center and
Clinic, School of Law, University of Illinois Chicago, Chicago,
IL, for amicus curiae National Law School Veterans
Clinic Consortium.
MICHAEL B. MILLER, Morrison & Foerster LLP, New
York, NY, for amici curiae Erwin Chemerinsky, Heather
Elliott, Richard D. Freer, Paul Ryan Gugliuzza, Helen
Hershkoff, Andrew Stuart Pollis, Cassandra Burke Robertson,
Adam Steinman, Howard M. Wasserman, Adam Zimmerman.


Before DYK, REYNA, and STOLL, Circuit Judges.
DYK, Circuit Judge.
This case involves the scope of the Department of Veterans
Affairs’ (“VA’s”) reimbursement of the cost of hospital
visits to veterans enrolled in the VA health care system.
The statute bars reimbursement for “any copayment or
similar payment.” 38 U.S.C. § 1725(c)(4)(D). The question
is whether deductibles and coinsurance are encompassed
within the term “similar payments.”
The Secretary of the VA (“Secretary”) appeals from a
decision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) granting a petition for a writ of
mandamus (1) invalidating a VA regulation prohibiting the
Case: 20-1958 Document: 67 Page: 2 Filed: 03/17/2022
WOLFE v. MCDONOUGH 3
reimbursement of deductibles and coinsurance for being
within the category of “similar payments,” (2) requiring the
VA to readjudicate claims denied under the invalidated
regulation, and (3) certifying a class of “[a]ll claimants
whose claims for reimbursement of emergency medical expenses
incurred at non-VA facilities VA has already denied
or will deny, in whole or in part, on the ground that the
expenses are part of the deductible or coinsurance payments
for which the veteran was responsible,” J.A. 28.
Because deductibles are excluded from reimbursement
under the correct interpretation of the statute
and other
adequate remedies were available with respect to coinsurance,
mandamus was inappropriate. We reverse.
BACKGROUND
I
The VA provides health care to nine million enrolled
veterans through its Veterans Health Administration, the
largest health care system in the country. Veterans Health
Administration, U.S. Dep’t of Veterans Affs.,
https://www.va.gov/health (last visited Feb. 22, 2022). Enrollment
in the VA health care system is determined by
statute. See 38 U.S.C. § 1705. For those who are enrolled,
and subject to certain other criteria, the VA provides free
hospital care. See 38 U.S.C. § 1710(a), (e); 38 C.F.R.
§ 17.108(d), (e). Enrolled veterans with other health care
coverage, such as private insurance, Medicare, Medicaid,
or TRICARE, may choose to use those sources of coverage
to supplement their VA health care benefits. VA and Other
Health Insurance, U.S. Dep’t of Veterans Affs.,
https://www.va.gov/healthbenefits/resources/publications/
hbco/hbco_va_other_insurance.asp (last visited Feb.
22, 2022). In emergencies, enrolled veterans are entitled
to obtain medical care at the nearest hospital emergency
department and to seek reimbursement from the VA for the
cost of treatment, with some exceptions. Emergency Medical
Care, U.S. Dep’t of Veterans Affs.,
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4 WOLFE v. MCDONOUGH
https://www.va.gov/COMMUNITYCARE/programs/vetera
ns/Emergency_Care.asp (last visited Feb. 22, 2022).
Simple on its face, the implementation of this approach
was complex. Before 1999, the VA had limited authority to
pay for private, non-VA emergency care for veterans. In
general, it could only reimburse for emergency treatment
relating to a service-connected condition or disability. 38
U.S.C. §§ 1703(a)(3), 1728 (1999); see also H.R. Rep. No.
106–470, at 63 (1999) (Conf. Rep.). Congress expanded the
VA’s authority in 1999 by adding § 1725 to title 38 of the
U.S. Code in the Veterans Millennium Health Care and
Benefits Act. Pub. L. No. 106-117, § 111, 113 Stat. 1545,
1553 (1999) (effective May 29, 2000).
Section 1725 as originally enacted directed the VA to
reimburse veterans enrolled in the VA healthcare system
for “the reasonable value of emergency treatment furnished
the veteran in a non-[VA] facility” if they, among
other conditions, (1) had “no entitlement to care or services
under a health-plan contract” (“the contract provision”)
and (2) had “no other contractual or legal recourse against
a third party that would, in whole or in part, extinguish”
liability to the provider (“the third-party provision”).
§ 1725(a)(1), (b)(3)(B)–(C) (1999). These somewhat overlapping
limitations reflected Congress’s intent to contain
“the significant potential cost” of reimbursement and ensure
“that VA truly [is] a payer of last resort.” H.R. Rep.
No. 106-237, at 39 (1999). Congress expected VA to “act
aggressively” to protect “scarce VA medical care funds” by
“ascertain[ing] before authorizing any payment under this
section that a veteran has no medical insurance whatsoever
or any other medical coverage” and that “the veteran
. . . has exhausted all other possible claims and remedies
reasonably available against a third party which may be
liable for payment of the emergency care.” Id. Section 1725
directed the Secretary to promulgate regulations to “establish
the maximum amount payable” and “delineate the
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WOLFE v. MCDONOUGH 5
circumstances under which such payments may be made.”
§ 1725(c)(1)(A)–(B).
Under the provisions of the 1999 legislation, veterans
with even minimal health insurance coverage, such as
through a state-mandated automobile insurance policy,
might wind up responsible for essentially the full cost of
emergency treatment. H.R. Rep. No. 111-55, at 2–3 (2009).
Congress addressed this problem in 2010 by revising
§ 1725 in the Emergency Care Fairness Act of 2010
(“ECFA”). Pub. L. No. 111-137, § 1, 123 Stat. 3495 (2010)
(effective Feb. 1, 2010). The ECFA struck “or in part” from
the third-party provision such that reimbursement was
prohibited if the veteran had “other contract[] or legal recourse
against a third party that would, in whole, extinguish”
liability to the provider. § 1725(b)(3)(C) (emphasis
added). The ECFA also added a new subsection to § 1725(c)
with limitations on reimbursement, including a provision
providing that “[t]he Secretary may not reimburse a veteran
under this section for any copayment or similar payment
that the veteran owes the third party or for which the
veteran is responsible under a health-plan contract” (“the
copayment provision”). § 1725(c)(4)(D).1
The statute does not define “copayment” or “similar
payment,” § 1725(f), but the parties agree that there are
three cost-sharing mechanisms commonly used in the
health insurance industry:
• A copayment is a “fixed amount that a patient
pays to a healthcare provider according
to the terms of the patient’s health plan.”
1 The ECFA also struck a provision that included
state-mandated automobile insurance under the definition
of “health-plan contract.” Compare § 1725(f)(3)(E) (2014),
with § 1725(f)(2)(E) (2006).
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6 WOLFE v. MCDONOUGH
Copayment, Black’s Law Dictionary (11th
ed. 2019).
• A deductible is “the portion of the loss to be
borne by the insured before the insurer becomes
liable for payment.” Deductible,
Black’s Law Dictionary (11th ed. 2019).
• “Coinsurance” is “health insurance in which
the insured is required to pay a fixed percentage
of the cost of medical expenses after
the deductible has been paid and the insurer
pays the remaining expenses.” Coinsurance,
Merriam-Webster, https://www.merriamwebster.
com/dictionary/coinsurance (last
visited Feb. 4, 2022).
After Congress passed the ECFA in 2010, the VA revised
its regulations, differentiating between situations involving
third-party liability and those involving healthplan
contracts despite the seeming overlap between the
two. It struck “or in part” from the regulation corresponding
to the third-party provision, 38 C.F.R. § 17.1002(g), and
added a regulation that the VA “will not reimburse a claimant
. . . for any deductible, copayment or similar payment
that the veteran owes a third party,” 38 C.F.R. § 17.1005(f).
See Payment or Reimbursement for Emergency Services
for Nonservice-Connected Conditions in Non-VA Facilities,
77 Fed. Reg. 23615, 23,615–16, 23,618 (Apr. 20, 2012).
However, the VA did not change the contract provision in
the regulation, which continued to state that reimbursement
required “[t]he veteran has no coverage under a
health-plan contract for payment or reimbursement, in
whole or in part, for the emergency treatment.” 38 C.F.R.
§ 17.1002(f) (2012) (emphasis added) (“the contract regulation”).
The VA concluded that the ECFA did not alter the
contract provision and that removing “or in part” from the
corresponding regulation “would treat a veteran with some
coverage under a health-plan contract in the same manner
Case: 20-1958 Document: 67 Page: 6 Filed: 03/17/2022
WOLFE v. MCDONOUGH 7
as one without coverage.” Payment or Reimbursement, 77
Fed. Reg. at 23,616.
II
In Staab v. McDonald, 28 Vet. App. 50 (2016), the Veterans
Court considered the statute, as amended in 2010 by
the ECFA, and the 2012 regulations. There, a veteran incurred
emergency expenses at a non-VA hospital and
sought reimbursement for the portion not covered by Medicare.
Id. at 52. The Board of Veterans’ Appeals (“Board”)
denied his claim as a matter of law under the contract regulation
because Medicare covered some, but not all, of the
veteran’s costs. Id. The Veterans Court reversed the
Board’s determination, concluding that the regulation was
invalid. Id. at 56. The Veterans Court did not explain the
cost-sharing mechanisms involved. Id. at 52–53. But interpreting
the language and legislative history of the
ECFA, the Veterans Court found that “Congress intended
that veterans be reimbursed [aside from copayments] for
the portion of their emergency medical costs that is not covered
by a third party insurer and for which they are otherwise
personally liable.” Id. at 55. The Secretary appealed
Staab to this court but voluntarily withdrew the appeal.
J.A. 7.
Following Staab, the VA revised the contract regulation
to allow reimbursement when a veteran “does not have
coverage under a health-plan contract that would fully extinguish
the medical liability for the emergency treatment.”
38 C.F.R. § 17.1002(f) (emphasis added); see also
Reimbursement for Medical Treatment, 83 Fed. Reg. 974,
974–75 (Jan. 9, 2018). At the same time, the VA added coinsurance
to deductibles and copayments as payments that
would not be reimbursed. 38 C.F.R. § 17.1005(a)(5) (hereinafter,
“the similar payments regulation”); see also Reimbursement
for Medical Treatment, 83 Fed. Reg. at 976–77.
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8 WOLFE v. MCDONOUGH
III
In September 2016, Amanda Wolfe, who was enrolled
in VA health care, obtained emergency treatment at a non-
VA health care facility, incurring expenses of $22,348.25.
Her employer-sponsored healthcare contract covered most
of the expenses, but she was responsible for a copayment of
$202.93 and coinsurance of $2,354.41. The VA denied reimbursement
of these expenses in February 2018 because
“patient responsibility (deductible, coinsurance, co-payment)
[is] not covered.” J.A. 199. In July 2018, Ms. Wolfe
filed a Notice of Disagreement (“NOD”), a predicate to an
appeal to the Board of Veterans’ Appeals. In October 2018,
rather than await the outcome of her appeal, Ms. Wolfe
filed a mandamus petition at the Veterans Court seeking
class relief invalidating the similar payments regulation
and ordering “the Secretary to reimburse veterans for coinsurance
and deductibles . . . incurred by veterans in seeking
emergency medical treatment at a non-VA hospital[]
and . . . not covered by the veteran’s health insurance carrier.”
J.A. 54. While it appears that Ms. Wolfe did not herself
have an issue as to deductibles, she pursued a ruling
as to deductibles on behalf of the class.
In September 2019, a three-judge panel of the Veterans
Court certified Ms. Wolfe’s requested class and granted her
petition. On the merits, a majority of the panel determined
(1) that the similar payments regulation was inconsistent
with the Staab decision’s interpretation of § 1725, and (2)
that deductibles and coinsurance are not similar to copayments.
The majority reasoned that “[a] deductible is not
‘similar’ to a copayment because, though it is fixed, it is not
a relatively small fee” and that “coinsurance [is not] ‘similar’
to a copayment because coinsurance is neither a relatively
small nor a fixed fee; it’s a relatively large and
variable fee based on a percentage.” J.A. 33. The majority
further determined that Ms. Wolfe lacked adequate alternative
remedies because “disputing the regulation’s validity
within the administrative appeals process amounts to
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WOLFE v. MCDONOUGH 9
‘a useless act’ and would be futile because the Board doesn’t
have jurisdiction to invalidate the regulation.” J.A. 34.
Judge Falvey dissented, noting (1) that granting
Ms. Wolfe’s requested relief would “thwart, not aid [the
Veterans Court’s] appellate jurisdiction” because it “could
not lead to a final Board decision reviewable by [the Veterans
Court], and would, in fact, abrogate the need for such
a decision,” (2) that Ms. Wolfe failed to show she was
clearly and indisputably correct in her interpretation of the
statute, and (3) that Ms. Wolfe had an adequate remedy by
appeal.
The Secretary appeals. We have jurisdiction under 38
U.S.C. § 7292(a), (c).
DISCUSSION
In reviewing decisions from the Veterans Court, this
court “shall . . . decide all relevant questions of law, including
interpreting constitutional and statutory provisions”
but “may not review [] a challenge to a factual determination,
or [] a challenge to a law or regulation as applied to
the facts of a particular case.” § 7292(d). We have “jurisdiction
to review the [Veteran Court’s] decision whether to
grant a mandamus petition that raises a non-frivolous legal
question,” and to determine “whether the petitioner has
satisfied the legal standard for issuing the writ.” Beasley
v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013).
The All Writs Act authorizes “all courts established by
Act of Congress [to] issue all writs necessary or appropriate
in aid of their respective jurisdictions.” 28 U.S.C. § 1651.
A writ of mandamus may issue only when three conditions
are satisfied: (1) the petitioner must show a “clear and indisputable”
right to issuance of the writ under the relevant
substantive law, (2) the petitioner must have “no other adequate
means” to attain the desired relief, and (3) “even if
the first two prerequisites have been met, the issuing court,
in the exercise of its discretion, must be satisfied that the
writ is appropriate under the circumstances.” Cheney v.
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10 WOLFE v. MCDONOUGH
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (citations
omitted); see also Bankers Life & Cas. Co. v. Holland,
436 U.S. 379, 384–85 (1953).
I
We first consider whether, under the correct interpretation
of § 1725(c)(4)(D), Ms. Wolfe has a “clear and indisputable”
right. The statute provides that the “Secretary
may not reimburse a veteran under this section for any copayment
or similar payment.” § 1725(c)(4)(D). Ms. Wolfe’s
right turns on whether deductibles and coinsurance are
“similar payments” to copayments under the statute. The
similar payments regulation interprets “similar payments”
as including both deductibles and coinsurance. 38 C.F.R.
§ 17.1005(a)(5) (“VA will not reimburse a veteran . . . for
any copayment, deductible, coinsurance, or similar payment
that the veteran owes the third party or is obligated
to pay under a health-plan contract.”)
. For reasons set out
below, we conclude that deductibles are similar to copayments
and are excluded from reimbursement, but coinsurance
is not similar and is not excluded.
It is a “fundamental canon of statutory construction”
that “unless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common meaning[]
. . . at the time Congress enacted the statute.” Perrin v.
United States, 444 U.S. 37, 42 (1979). The presumption
against surplusage additionally provides that a “statute
should be construed so that effect is given to all its provisions,
so that no part will be inoperative or superfluous,
void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101
(2004) (citing 2A Norman J. Singer, Statutes and Statutory
Construction § 46.06, at 181–86 (rev. 6th ed. 2000)).
To resolve this issue, we first need to address the effect
of the deletion of the “or in part” language from the thirdparty
provision, given the significance that Ms. Wolfe attributes
to that statutory amendment. As noted earlier,
before the enactment of the ECFA in 2010, the statute
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WOLFE v. MCDONOUGH 11
required as conditions of reimbursement that a veteran
have “no entitlement to care or services under a healthplan
contract” and also “no other contractual or legal recourse
against a third party that would, in whole or in part,
extinguish” liability to the provider. § 1725(b)(3)(B)–(C)
(1999). In 2010, Congress deleted the “or in part” language
from the third-party provision but left unchanged the “no
entitlement” language in the contract provision, creating a
potential ambiguity. § 1725(b)(3)(B)–(C). Nonetheless, in
deleting the “or in part” language from the third-party provision
and adding the “copayment or similar payments”
provision, which equally limits the scope of both the contract
and third-party provisions, Congress clearly intended
for veterans with partial contract coverage not to be disqualified
from reimbursement unless the payments are “copayment[
s] or similar payments.” The government does
not argue otherwise, and we think this is the correct interpretation.
But that does not resolve the question whether deductibles
and coinsurance are “similar payments” to copayments.
We agree with the government that “similar
payments” necessarily means that some payments that are
not copayments are “similar payments.” The arguments by
the Veterans Court and Ms. Wolfe that “similar payments”
was simply meant to include copayments when the provider
used different language to describe them are untenable.
See, e.g., Rousey v. Jacoway, 544 U.S. 320, 324, 329
(2005) (holding that “[t]o be ‘similar,’ an IRA must be like,
though not identical to, the specific plans or contracts listed
in [the statute], and consequently must share characteristics
common to the listed plans or contracts” under a Bankruptcy
Code provision allowing debtors to exempt “a
payment under a stock bonus, pension, profitsharing, annuity,
or similar plan or contract on account of . . . age”
from estate).
But equally untenable is the government’s argument
that both deductibles and coinsurance are “similar
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12 WOLFE v. MCDONOUGH
payments.” If this were so, the ECFA amendments allowing
veterans with partial coverage to be reimbursed would
have little meaning since the similar payments language
would bar all forms of cost-sharing. The government suggests
that its interpretation does not render the partial coverage
exclusions inoperative because the statutory effects
of “similar payments” would not bar reimbursement to veterans
who have hit annual or lifetime policy limits on covered
costs. VA Br. at 47. But shortly after passing the
ECFA, Congress passed the Affordable Care Act (“ACA”),
which generally prohibited annual and lifetime caps on
covered costs. See 42 U.S.C. § 300gg-11. The ACA had already
passed the Senate when Congress enacted the ECFA
amendments in 2010. It seems unlikely that Congress, in
eliminating partial coverage from the third-party provision,
was concerned with policy limits in view of its impending
decision to eliminate such limits.2
The Secretary, citing to the ACA, also argues that the
similar payments regulation is a reasonable reflection of
“the common understanding of which health plan expenses
are ‘similar’ to copayments.” VA Br. at 46. The ACA defines
“cost-sharing” to include “deductibles, coinsurance,
copayments, or similar charges” as well as “any other expenditure
required of an insured individual which is [paid
2 The Secretary also mentions that veterans with
short-term limited duration (“STLD”) insurance may incur
reimbursable costs. It is unclear how the existence of
STLD insurance should inform the meaning of “similar
payments” under the statute, and the Secretary does not
explain the relationship. See VA Br. at 47; VA Reply Br. at
21; see also Requirements for the Group Health Insurance
Market, 69 Fed. Reg. 78,783 (Dec. 30, 2004) (defining STLD
insurance plans); Ass’n for Cmty. Affiliated Plans v. U.S.
Dep’t of Treasury, 966 F.3d 782, 786 (D.C. Cir. 2020) (discussing
higher deductibles associated with STLD insurance
plans).
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WOLFE v. MCDONOUGH 13
by the beneficiary for medical care to the extent such
amounts are not compensated for by insurance or otherwise]
with respect to essential health benefits covered under
the plan,” excluding “premiums, balance billing
amounts for non-network providers, or spending for noncovered
services.” 42 U.S.C. § 18022(c)(3); see also 26
U.S.C. § 223(d)(2)(A). We do not find this persuasive. The
ACA definition highlights that copayments, deductibles,
and coinsurance are all cost-sharing mechanisms for purposes
of introducing annual limits on cost-sharing, see
§ 18022(c)(1), but it does not answer the question of what
is a “similar payment” to a copayment for purposes of the
ECFA.
Having considered the interpretations offered by the
Veterans Court and advanced by the parties, we conclude
that the correct reading of the statute is one in which a deductible
is a “similar payment” to a copayment, but coinsurance
is not. Rather, coinsurance is the very type of
partial coverage that Congress did not wish to exclude from
reimbursement. This interpretation gives meaning to all
terms and provisions in the statute and is also consistent
with the plain meaning of the terms: copayments and deductibles
are fixed quantities which become known once insurance
is purchased, while coinsurance is a variable
quantity that becomes known only after medical expenses
are incurred and is quintessentially partial coverage. The
Veterans Court and Ms. Wolfe urge that deductibles are
similar to coinsurance for veterans who have health insurance
plans with high deductibles, but there is no indication
that Congress wished to distinguish high deductible plans
from other plans (with lower deductibles) when determining
the categories of payments excluded from reimbursement.
The legislative history, though sparse, also supports a
reading that deductibles were intentionally excluded from
reimbursement as a “similar payment,” but coinsurance
was not. When the amendment to § 1725 was first under
Case: 20-1958 Document: 67 Page: 13 Filed: 03/17/2022
14 WOLFE v. MCDONOUGH
consideration, the House bill simply struck “or in part”
from the third-party provision at § 1725(b)(3)(C). H.R.
5888, 110th Cong. § 1(a) (2008). In a prepared statement,
the VA noted that it did not support the amendment as
drafted because it “could be interpreted to require that VA
pay any copayments the veteran owes to the third party.”
Hearing Before the Subcomm. on Health of the H. Comm.
on Veterans Affs., 110th Cong. 24 (2008). When the amendment
was reintroduced in the next Congress, the new bill
added the “copayment or similar payment” exclusion now
in the statute. H.R. 1377, 111th Cong. § 1(b) (as introduced
Mar. 6, 2009). The VA stated that it now supported the bill
and understood the VA’s financial liability to “exclud[e] copayment
or deductible amounts owed by the veteran.”
Hearing Before the Subcomm. on Health of the H. Comm.
on Veterans Affs., 111th Cong. 50 (2009). There was no
mention of coinsurance. Given Congress’s concern with the
VA’s views as to the appropriate scope of the legislation,
the VA’s input was significant. H.R. Rep. No. 111-55, at 3
(2009) (“In addition, in response to the concerns put forth
by the VA last Congress, [the bill] would clarify the reimbursement
responsibilities of the VA.”). In sum, the legislative
history supports that Congress intended “similar
payments” to include deductibles but not coinsurance. 3
Under the correct construction of the statute, there is
a “clear and indisputable” right to relief with respect to
3 The Veterans Court relied on a colloquy between
Representative Miller and a subcommittee staff member
from the 2008 legislative hearing as evidence of Congress’s
intent that VA reimburse deductibles. J.A. 5 n.10. However,
the bill at the time did not contain the “copayment or
similar payment” exclusion. Thus, even if this exchange
between a congressman and a committee staffer could have
any significance, it does not show what Congress intended
to exclude in a provision that only came into existence
nearly a year later.
Case: 20-1958 Document: 67 Page: 14 Filed: 03/17/2022
WOLFE v. MCDONOUGH 15
coinsurance but not deductibles.4 We turn to the question
whether mandamus was available with respect to coinsurance.
II
It is well established that mandamus is unavailable
when there is an adequate remedy by appeal. In Bankers
Life, the petitioner sought a writ of mandamus to vacate
and set aside a district court’s order of severance and transfer
on the ground of improper venue, contending that mandamus
was appropriate in part because the interlocutory
order could be reviewed on appeal from final judgment in
the case only after “needless expense, hardship and judicial
inconvenience.” 346 U.S. at 381–82. The Supreme Court
rejected this argument, explaining that “the extraordinary
writs cannot be used as substitutes for appeals, even
though hardship may result from delay and perhaps unnecessary
trial, and whatever may be done without the writ
may not be done with it.” Id. at 383 (citing Ex parte Fahey,
332 U.S. 258, 259–60 (1947); U.S. Alkali Export Ass’n v.
United States, 325 U.S. 196, 202–03 (1945); Roche v. Evaporated
Milk Ass’n, 319 U.S. 21, 31 (1943); Ex parte Rowland,
104 U.S. 604, 617 (1882)). It further explained that
mandamus “should be resorted to only where appeal is a
clearly inadequate remedy.” Id. at 384–85 (quoting Fahey,
332 U.S. at 259–60). Our court has applied Bankers Life in
affirming the Veterans Court’s denial of a mandamus petition
in the context of a benefits decision. See Lamb v. Principi,
284 F.3d 1378, 1384 (Fed. Cir. 2002); see also Beasley,
709 F.3d at 1159 (cautioning against “widespread use of
the writ of mandamus as a substitute for the ordinary appeals
process mandated by Congress”).
4 Because we find that Congress’s intent is clear in
the statute, we do not address the Secretary’s arguments
regarding Chevron deference. See Chevron U.S.A., Inc. v.
Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984).
Case: 20-1958 Document: 67 Page: 15 Filed: 03/17/2022
16 WOLFE v. MCDONOUGH
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. To be sure, mandamus might be available
if the appeals process were being unreasonably delayed,
but that possibility is no help to Ms. Wolfe. First, such a
mandamus order could only compel action on the appeal.5
It could not dictate a particular outcome. See Bankers Life,
346 U.S. at 383 (mandamus does not function to “control
the decision of the trial court”); see also Kramer v. Wilkie,
842 F. App’x 599, 604–05 (Fed. Cir. 2021) (“A writ of mandamus
may not be used to compel an outcome-specific order.”).
Second, as the Veterans Court dissent noted, Ms.
Wolfe did “not contend that the Secretary is refusing to process
her claim, unreasonably delaying its adjudication, or
performing any other action that would prevent her dispute
from making its way to” the Veterans Court. J.A. 37–

  1. If Ms. Wolfe continued to follow the appeals process
    prescribed in title 38, she would have received a Board decision
    appealable to the Veterans Court.
    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
    5 See Martin v. O’Rourke, 891 F.3d 1338, 1343 (Fed.
    Cir. 2018) (citing Telecomms. Rsch. & Action Ctr. v. FCC,
    750 F.2d 70, 76 (D.C. Cir. 1984)); Monk v. Shulkin, 855
    F.3d 1312, 1318 (Fed. Cir. 2017) (citing Cox v. West, 149
    F.3d 1360, 1363 (Fed. Cir. 1998)) (“[T]he Veterans Court
    has the power to . . . order[] the Board to issue a final determination
    in a case where it had not already done so.”).
    Case: 20-1958 Document: 67 Page: 16 Filed: 03/17/2022
    WOLFE v. MCDONOUGH 17
    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. See Preminger v. Sec’y of Veterans Affs., 632 F.3d
    1345, 1352 (Fed. Cir. 2011).
    Ms. Wolfe next contends that mandamus is available
    to ensure compliance with the Veterans Court’s earlier decision
    in Staab. The Veterans Court majority characterized
    Staab as “the definitive and authoritative
    interpretation of section 1725,” J.A. 7, and Ms. Wolfe argues
    that the VA’s departure from Staab constitutes “extraordinary
    misconduct” because Staab is “binding on the
    VA,” Wolfe Br. at 26, 10. There is no basis for these allegations,
    and both the Veterans Court majority and Ms. Wolfe
    misunderstand the situation. Mandamus might be appropriate
    to ensure compliance with the judgment in an individual
    case, see Clinton v. Goldsmith, 526 U.S. 529, 536
    (1999), but mandamus is not available to enforce the principle
    of stare decisis. Staab did not afford equitable relief
    barring enforcement of the regulations and constitutes
    simply an unreviewed decision of the Veterans Court that
    is not binding on this court or on the government outside of
    that individual case except as a matter of stare decisis at
    the Veterans-Court level of review.6 Moreover, Staab
    6 It is well-established that there is no affirmative
    estoppel against the government. See United States v.
    Mendoza, 464 U.S. 154, 158 (1983) (“[N]onmutual offensive
    collateral estoppel is not to be extended to the United
    States.”); Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans
    Affs., 260 F.3d 1365, 1373 (Fed. Cir. 2001) (rejecting
    Case: 20-1958 Document: 67 Page: 17 Filed: 03/17/2022
    18 WOLFE v. MCDONOUGH
    cannot be read to foreclose the VA, even at the Veterans
    Court level, from arguing for the validity of a different regulation
    than the one at issue in Staab.
    Ms. Wolfe next argues that mandamus is available in
    aid of the Veterans Court’s prospective jurisdiction because
    the VA, through supposed misrepresentations in various
    communications, has deterred individuals from pursuing
    their benefits claims and appeals. The Veterans Court similarly
    found that the VA’s communications regarding entitlements
    under the similar payments regulation as well as
    the regulation itself create “a chilling effect” on would-be
    claimants. J.A. 17. The answer to this again is twofold.
    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. See In
    re Tennant, 359 F.3d 523, 530 (D.C. Cir. 2004) (mandamus
    unavailable where petitioner never initiated a proceeding
    with the agency because “a proceeding of some kind” that
    “might lead to an appeal” is a preliminary requirement to
    consider writ); Mylan Labs. Ltd. v. Janssen Pharmaceutica,
    N.V., 989 F.3d 1375, 1380 (Fed. Cir. 2021) (court has
    prospective jurisdiction only after petition filed with
    agency); see also FTC v. Dean Foods Co., 384 U.S. 597, 599
    (1966) (mandamus available because FTC initiated a proceeding);
    see generally 33 Charles Alan Wright & Arthur R.
    Miller, Federal Practice and Procedure § 8313 (2d ed.). We
    have no occasion to determine what forms of equitable
    application of collateral estoppel against the VA because
    “the only effect of the [Veterans Court’s earlier decisions]
    is as a matter of stare decisis”).
    Case: 20-1958 Document: 67 Page: 18 Filed: 03/17/2022
    WOLFE v. MCDONOUGH 19
    relief might be available if the government inappropriately
    deterred potential claimants from pursuing their claims.
    Ms. Wolfe additionally argues that “mandamus is
    proper to avoid delay in resolving important issues.” Wolfe
    Br. at 62 (citing Schlagenhauf v. Holder, 379 U.S. 104, 111
    (1964); In re Google LLC, 949 F.3d 1338, 1341–42 (Fed. Cir.
    2020)). But the cases she relies on involved situations
    where appeal was not an adequate remedy or where a special
    need arose due to conflicting district court decisions on
    a recurring issue, circumstances that are absent here.7
    Ms. Wolfe finally argues that the writ was necessary to
    correct a clear abuse of discretion under La Buy v. Howes
    Leather Co., 352 U.S. 249, 257–58 (1957).8 Reprising her
    7 In Schlagenhauf, the petitioner alleged that a federal
    district court was without power to order the mental
    and physical examination of a defendant under Federal
    Rule of Civil Procedure 35. 379 U.S. at 110. Such liberty
    concerns, once violated, could not have been vindicated after
    the fact by appeal.
    In Google, this court issued a writ ordering the district
    court to dismiss a case for lack of venue because it was unlikely
    that “these issues [would] be preserved and presented
    to this court through the regular appellate process.”
    949 F.3d at 1342–43. The Google court also noted “a significant
    number of district court decisions that [had]
    adopt[ed] conflicting views on the basic legal issues presented.”
    Id. at 1342; see also In re Volkswagen, No. 22-108,
    slip op. at 5 (Fed. Cir. Mar. 9, 2022); In re Micron, 875 F.3d
    1091, 1095 (Fed. Cir. 2017).
    8 La Buy involved a district court judge who referred
    antitrust cases for trial before a master despite being able
    to “dispose of the litigation with greater dispatch and less
    effort than anyone else” due to his “knowledge of the cases
    . . . [and] long experience in the antitrust field.” 352 U.S.
    at 255–56. The Court held that the judge’s referrals, which
    Case: 20-1958 Document: 67 Page: 19 Filed: 03/17/2022
    20 WOLFE v. MCDONOUGH
    arguments about Staab’s allegedly binding effect, as evidence
    of a clear abuse of discretion, Ms. Wolfe points to the
    VA’s “errors” in communicating with veterans about their
    entitlement to reimbursement, overestimating the monetary
    impact of Staab, failing to correct outdated information
    on its website, and the VA’s adopting “a unilateral
    moratorium on claim processing, an interim final rule that
    lacked good cause, a regulation that circumvented both the
    statute and Staab, its refusal to pay veterans like Ms.
    Wolfe, and ongoing misrepresentations.” Wolfe Br. 47. Ms.
    Wolfe’s argument is again founded on the flawed premise
    that Staab was the final word on the subject matter and
    that the VA somehow acted improperly in adopting a new
    regulation after Staab.
    Because we conclude that mandamus was inappropriate,
    we need not and do not reach the issue of class certification.
    CONCLUSION
    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.
    REVERSED
    COSTS
    No costs.
    numbered eleven cases in six years, “amounted to little less
    than an abdication of the judicial function. . . .” Id. at 256,
    258.
    Case: 20-1958 Document: 67 Page: 20 Filed: 03/17/2022

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