Veteranclaims’s Blog

September 11, 2019

Wolfe & Boerschinger v. Wilkie, No.18-6091(DATED: September 9, 2019 PER CURIAM); 38 C.F.R. § 17.1005(a)(5) is invalid because it is contrary to 38 U.S.C. §1725; reimbursement of emergency medical care at non-VA facilities;

Excerpt from decision below:

“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”







Before GREENBERG, ALLEN, and FALVEY, Judges.


GREENBERG, Judge, filed the opinion of the Court. FALVEY, Judge, filed a dissenting opinion.

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 38U.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.1When 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.2The 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 1See generallyJan. 1, 2018, Amended(Am.) Petition (Pet.)for Class Relief in the Nature of a Writ of Mandamus.228 Vet.App. 50 (2016).


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.”3Throughout 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,4but 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.5We will also dismiss as moot petitioner Boerschinger’s motion to 3Petitioners’ (Pet’rs’) Reply to Respondent’s (Resp’t’s) Response (Resp.) to the Court’s May 31, 2019, Order at 4.4Resp’t’s Sur-Response to the Court’s May 31, 2019, Order at 2-3.5To be clear, by deciding class certification and the merits of the underlying petition in a single order, the Courtis not adopting a general policy or framework for deciding such matters concurrently in future cases. However, given the unique circumstances surrounding this case, particularly the nature of the alleged injury and the need for


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.promptremedial action, the Court has concluded that resolving both matters in a single order is appropriate here.SeeGodsey v. Wilkie, 31 Vet.App. 207, 214 ( 2019) (citingQuinault Allottee Ass’n & Individual Allottees v. United States, 453 F.2d 1272, 1276 (Fed. Cl. 1972) (deciding requests for class certification on a case-by-case basis, “gaining and evaluating experience”on an ad hoc basis before adopting general class certification rules)).



I. BACKGROUND………………………………………………….5A.

The Statutory and Regulatory Framework and Staab…….5B.

Petitioners’ Facts and Procedural History…………………..10II. JURISDICTION………………………………………………………13A. Boerschinger Class……………………………………………..13B.

Wolfe Class……………………………………………………….15III.

THE WOLFE CLASS…………………………………………..19A. Certification……………………………………………………….19i. Numerosity…………………………………………………………20ii. Commonality………………………………………………………20iii. Typicality……………………………………………………………222iv. Adequacy of Representation………………………………23v.

Federal Rule of Civil Procedure 23(b)…………………..244vi. Adequacy of Class Counsel Under Federal Rule of Civil Procedure 23(g)………………255vii. Superiority……………………………………………………26viii.

Opt-Out and Notice………………………………………27ix. Certification of the Class………………………………27B.

Merits of the Class Petition……………………………28i.

Clear and Indisputable Right to the Writ……………..28ii.

Lack of Adequate Alternative Means……………………………333iii. CircumstancesWarranting a Writ…………………………..34C. Remedy…………………………………………………………….34

7under a health-plan contract would wholly extinguish a veteran’s financial liability.”23In other words, we said VA would not reimburse the veteranonly when other insurance extinguished all liability. Therefore,we concludedthat § 17.1002(f)overly restricted eligibility in light of the statutebecause § 17.1002(f) still excluded veterans with some coverage, something Congress had now prohibited.24In short,we held§17.1002(f)invalid because it was inconsistent with the amended section1725and Congress’s unambiguouslanguage showing Congress intendedthat “veterans be reimbursed 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.”25To be clear, this means Staabrecognized that Congress did not mean to preventreimbursement where a veteran has insurance covering some portion of the expense for a certain serviceand still bearscosts related to that service.The Secretary appealed Staabto the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). While theappeal was pending, then-Secretary of the Department of Veterans Affairs, Dr. David Shulkin, appeared at a hearing before the U.S. Senate Committee on Veterans’Affairs.26Askedhow VA was dealing with Staab,Dr. Shulkin stated that”[VA] ha[d]completed all of the regulations to be able to move forward with payment of the Staabclaims, and . . . ha[d]. . .transmitted them to the Office of Management and Budget.”27The Secretary also stated that he was voluntarily withdrawing the Agency’s appeal of Staab.28On July 17, 2017, the Federal Circuit dismissedthe appeal of Staab,andthe Court’s precedential decisionbecame final.To be clear, our decision in Staabwas then—and is now—the definitive and authoritative interpretation of section 1725 for purposes of consideringthe petition before us.In the wake of Staab, VAceased processing “all affectedclaims,”while it revised its emergency medical care regulations.29In the public notice of these revisions, VA acknowledged that “[t]he purpose of this rulemaking is to amend the pertinent VA regulations to comply with [Staab].”30This bears repeating: VA stated it was amending its regulations to comply with Staab.Two portions of theregulatory changes are relevant to this petition, though the second one is more directly on point. First, VA amended § 17.1002(f) to align the regulation with Congress’s direction 23Staab, 28 54.24See 54-55.25Id. at 55.26Fiscal Year 2018 Budget for Veterans’Programs: Hearing before the S. Comm. on Veterans’ Affairs, 115th Cong. (2017).27Id. at 72 (statement ofDavid Shulkin, M.D., Secretary of Veterans Affairs).28Id.29Reimbursement of Emergency Treatment, 83 Fed. Reg. 974, 974-80 (Jan. 9, 2018) 975.Note that, despite Congress’s urging the Secretaryin 2010″to use the discretionary authority provided by [Pub. L. No. 111-137]to reimburse veterans for emergency treatment provided prior to the date of enactment who have been financially harmed under the VA’s current non-reimbursement policy,”H.R. REP. No.111-55, at 3,VA established April 8, 2016, the date of the Staabdecision, as the revisions’ effective date.83 Fed. Reg. 975(citing Jordan v. Nicholson, 401F.3d 1296 (Fed. Cir. 2005); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697-98 (Fed. Cir. 2005)).

8that veterans would be eligible for reimbursement unless they had third-party insurance that would fully extinguish their personal liability for the emergency care.31The new subsection (f) states that payment will be made only if “[t]he veteran does not have coverage under a health-plan contract that would fully extinguishthe medical liability for the emergency treatment.”32So far so good,because this language is fully consistent with what in Staab we heldthe statute means.The second regulatory change relates specifically to the statutory exclusion (added in 2010) insection 1725(c)(4)(D), that is, the thing that can’t be reimbursed. When allowing reimbursement wherethe veteran’s insurancepartially covers an expense, in section 1725(c)(4)(D),Congress also stated: “The 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.”33″Because[after Staab] VA[would]provide payment or reimbursement on claims involving partial payment by a health-plan contract,”VArevised 38C.F.R. § 17.1005by adding subsection (a)(5) (which “restate[d]” an oldversion of § 17.1005(f)34)35:”VA will not reimburse a veteran under this section 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.”36This regulation was supposedly meant to implement thestatutory exclusionin section 1725(c)(4)(D) and presents the central question before us.37Aswe will explain, the central question is whether the inclusion in the regulation of “deductible” and “coinsurance” is consistent with the statute’s prohibition on reimbursement of “any copayment or similar payment.”Before we move on, let’s take a momentto assess this history and how the parties see it. In the post-Staabworld,everyone agrees VA still pays “for services not covered in any proportion by the veteran’s primary insurance,”38which is to say VA didn’t change from the pre-to post-Staabworld.39According to the Secretary, here’s how Staabchanged the system: VA no longer automatically deniesveterans’claims for covered services; instead, “VA now assesses the amount the third party paid for these covered services to determine whether VA can payany remaining liability.”40But as we will explain below, the Secretary’s view of the post-Staabworld makes no practical difference because, with one possible exception that the Secretary proffered late in the 3183 Fed. Reg. 975.3238 C.F.R. §17.1002(f) (2019) (emphasis added).33Pub. L. No. 111-137, § 1(b), 123 Stat.3495(enacting 38 U.S.C. § 1725(c)(4)(D)).34Note that old § 17.1005(f) (2017) didn’t mention coinsurance: “VA will not reimburse a claimant under this section for any deductible, copayment or similar payment that the veteran owes the third party.”3583 Fed. Reg. 975 (emphasis added in quotation).3638 C.F.R. § 17.1005(a)(5) (2019).We will discuss below the important differences between these types of “cost sharing” insurance terms.3783 Fed. Reg. 974-80.38Resp’t’s Resp. to the Court’s May 31, 2019, Order at 7.39Pet’rs’ Reply to Resp’t’s Resp. to the Court’s May 31, 2019, Order at 3.40Resp’t’s Resp. to the Court’s May 31, 2019, Order at 6; see id. at 8.


game,41it’s not clear what expense VA could reimburse now under VA’s interpretation that VA would not have reimbursed before.And this tracks petitionerWolfe’sview as well. She allegesthat VA functionally operates just as it did before Staab. She says, for covered services,the only potentially “remaining liability”(i.e.,the only potentially reimbursable expensethat aninsured veteran could owe after insurance coversa service)takes the form ofcopayments, deductibles, or coinsurance.42And§17.1005(a)(5)states that VA won’t reimburse “any copayment, deductible, coinsurance, or similar payment.” Therefore, petitioner Wolfe says, post-Staab VA functions no differently than pre-Staab VA because veterans have no other remaining liability for covered services and so receive no reimbursements for those services.43Ostensibly responding to the petitioner’s no-other-remaining-liability point, the Secretary insists that other reimbursable costs do exist that insured veterans could owe—namely, costs for services that insurance doesn’t cover.44By this, the Court (and apparently, the petitioners45too) understand the Secretary to suggest that VA’s reimbursement of services not covered by other insurance qualifies as reimbursement of “remaining liability” on covered services. At oral argument, the petitioners called this a “sleight of hand,”46 and, as we explain in more detail below, we think that characterization warranted at worst. 

At best, the Secretary appears to fundamentally misunderstand his own system. Focusing solely on covered services, the Secretary had failed to identify any other cost to a veteran constituting potentially reimbursable “remaining liability” besides copayments, coinsurance, or deductibles, despite the petitioners’ prodding and the Court’s multiple attempts to give him an opportunity to do so.47Until his fifth substantive brief (not to mention oral argument), that is. More than 9months after the original petition came to this Court, the Secretary asserts for the first time that balance billing is an example of a cost representing potentially reimbursable “remaining liability.”48As we’ll explain later, we’re dubious of this position’s viability. Not to put too fine a point on it, if the Secretary is correct, VA has been able to recreate the regime the Court held unlawful in Staab. We can’t allow that to happen.41See Resp’t’s Sur-Response to the Court’s May 31, 2019, Order at 2-3.42E.g., Oral Argument at 17:33-20:17, Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091 (oral argument held May 14, 2019),[hereinafter O.A.] 34:46-36:18.45See Pet’rs’ Reply to Resp’t’s Resp. to the Court’s May 31, 2019, Order at 3 n.1.46O.A. at 1:34:21-:23. For context, seeO.A. at 1:33:07-:37:35.47Pet’rs’ Reply to Resp’t’s Resp. to the Court’s May 31, 2019, Order at 2. Not only that, but when the Secretary pointed out, with respect to petitioner Boerschinger, that “Medicare Part A partiallypaid one of [his] claims,” he also acknowledged that “Mr. Boerschinger’s onlypersonal liability after payment by Medicare Part A and VA was his cost-share obligation with respect to the one service Medicare Part A paid for.” Resp’t’s Resp. to Court’s May 31, 2019 Order, at 8. 48Resp’t’s Sur-Response to the Court’s May 31, 2019, Order at 2-3.


Now that we’ve surveyed the system and the parties’ views on the issues, let’s turn to the petitioners and the history of this case.

B. Facts and Procedural History

In September 2016, petitioner Wolfe received emergency care at a non-VA facility.49 She incurred $22,348.25in expenses.50After her insurance paid its share, she still owed $2,558.54.51Of this amount,$202.93 was a “copayment,” and $2,354.41 was “coinsurance.”52

Petitioner Wolfe filed a claim for reimbursement. VA denied her claim on February 2, 2018, because “‘[p]rior payer’s . . .patient responsibility (deductible, coinsurance, co-payment) [is] not covered.'”53Shefiled a Notice of Disagreement (NOD) in July 2018, arguing that “[VA’s] policy of denying reimbursement for deductibles and coinsurance, as expressed in 38 C.F.R. §17.1005(a)(5), is at odds with the plain meaning of 38 U.S.C. § 1725(c)(4)(D), its legislative history, . . .policy interests in favor of expanding veterans’ benefits, “and Staab.54 VA replied to her NOD on August 14, 2018, in a letter stating: “Due to the volume of appeals, we anticipate a delay.”55 At VA’s request, petitioner Wolfe filed an amended NOD in the form of a letter, repeating her earlier arguments.56VA eventually responded with a November 20, 2018, letter: “Our decision is final; appeal closed.”57 Petitioner Wolfe filed her initial petition with the Court on October 30, 2018.Meanwhile, petitioner Boerschingeralso received emergency careat a non-VA facility.58Medicare had paid some of his bill; afterwards, he still owed $1,340, which he paid.59This amount was a “deductible”that he owed under Medicare Part A.60Petitioner Boerschinger filed a claim for reimbursement. On November 27, 2018, VA denied hisclaim, citing § 17.1002 and finding that he”ha[d]other insurance coverage eligible to make payment on the claim.The veteran must not have coverage under a health-plan contract for 49Am. Pet. at 10; id.Exhibit (Ex.) E at 10; id.Ex. F at 42.55Id. at 10; id. Ex. G at 44.56Id. at 10 n.1; id. Ex. H at 46.57Id. at 10. Note, though, that the amended petition doesn’t offer this letter in an 11.59Id.60Resp’t’sResp. to Pet’rs’ Am. Pet. for Class Relief in the Nature of a Writ of Mandamus at 6.


payment or reimbursement, in whole or in part, for the emergency treatment.”61Further, VA listed eligibility criteria, including the criterion that “the veteran has no coverage under a health plan contract.”62Of course, this statement is utterly inconsistent with Staab. On January 1, 2019, petitioner Wolfe requested leave to file an amended petition seeking to join Mr. Boerschinger as a petitioner.63On February 1, 2019, the Court granted petitioner Wolfe’s motion and allowed the amended petition.64More facts came to light in the Secretary’s response to the amended petition. At first glance, they’re relevant to the Boerschinger Class exclusively, but as we’ll see, they relate to the Wolfe Class too.The Secretary conceded that after Staab VA didn’t update its templates for letters denying reimbursement for emergency medical care.65Thus, he essentially conceded legal error. However, he also provided evidence that VA is in the process of correcting the faulty notice, renotifying veterans whose claims were denied, and correcting its templates.66The Secretary stated that VA has divided veterans who were denied reimbursement and provided with faulty notice into three categories.67

Category A includes claimants whose claims were incorrectly denied based on other health insurance (OHI) and who received notices to that effect.68 Category B includes claimants whose claims were denied for reasons other than the presence of OHI but who received notices that potentially contained erroneous language regarding OHI.69

Category C includes claimants whose claims were rejected as incomplete(not denied)but who received notices that potentially contained erroneous language regarding OHI.70On May 14, 2019, the Court held oral argument. From the bench, the Court ordered the Secretary to provide the updated letter templates that VA is sending to claimants and information about which appellate path (the “Legacy” or the “Appeals Modernization Act”(AMA)71path)VA would process claims under when upon claimants had received their revised letters and their extended appeal windows.7261Am. Pet. at 11; id. Ex. I at 11; id. Ex. I at 48.63Pet’r’s Motion (Mot.) for Leave to File an Am. Pet. for Class Relief in the Nature of a Writ of Mandamus and Join an Additional Pet’r at 1. 64Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091, at 4-5 (Feb. 1, 2019, Order).65Resp’t’s Resp. to Am. Pet. 52.66Id.Ex. 1 ¶ IV (“Corrective Actions”) 53-54; id. Ex. 1¶ 53; id. Ex. 1¶ 54; id. Ex. 1¶ 54; id. Ex. 1¶ IV.c.71SeeVeterans Appeals Improvement and Modernization Act of 2017, Pub.L. No. 115-55, 131Stat. 1105 (Aug.23, 2017).72Wolfe v. Wilkie, U.S. Vet. App. No. 18-6091 (May 14, 2019, Bench Order).


1.Invalidate the Secretary’s decisions to the extent they denied reimbursement to Boerschinger Class members for medical expenses because they have insurance coverage;2.Order the Secretary to readjudicate these reimbursement claims under section 1725(c)(4)(D)’s proper interpretation;3.Enjoin the Secretary from issuing any communication to veterans that incorrectly states that one of the criteria for reimbursement is that the veteran has no coverage at all under any health plan contract;4.Order the Secretary to re-issue all communications, sent to claimants since the Court’s precedential opinion issued in Staab(on April 8, 2016), that incorrectly stated that one of the criteria for reimbursement is that the veteran have no coverage at all under a health plan contract;5.Order the Secretary to [reset]the deadlines applicable to veterans who received this correspondence for appealing any VA denial of their reimbursement claims; and6.Order such other relief as may be appropriate in theinterest of justice and in aid of the Court’s jurisdiction.86The Secretary has provided, or is in the process of providing,the proposed Boerschinger Class all itsrequestedrelief. He’s claimed to have stopped sendingcommunicationsto veterans that incorrectly statethat one of the criteria for reimbursement is that the veteran hasno coverage at all under any health plan contract.87He’s sending out letters that correct the specific error identified in the Boerschinger portion of the petition informing veterans that VA will readjudicate claims for which they were denied reimbursement because they have insurance coverageand will reset the applicable deadlines for appealing denials of claims.88This Court adheres to the case-or-controversy jurisdictional requirements imposed by Article III of the U.S. Constitution.89A case or controversy ceases to exist, and a case becomes moot, “‘when the issues presented are no longer “live”or the parties lack a legally cognizable 3-4.87O.A. at 1:07:47-:08:23.88Resp’t’s Resp. to the Court’s May 14, 2019, Order, Exs. 1, 2, 3 (Categories A, B, and C templates).Of course, as we will explain below, two of those letters ultimately are defective to the extent they inform veterans that VA will not reimburse a veteran for coinsurance or deductibles. But the correction of that error can best be dealt with as part of the relief provided to Ms. Wolfe and the class we will certify for her portion of the petition.89Cardona v. Shinseki, 26 Vet.App. 472, 474 (2014) (per curiam order); Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990).


interest in the outcome.'”90When a case becomes moot during the course of litigation, the proper outcome is to dismiss the case for lack of jurisdiction, unless an exception to mootness applies.91

Because Petitioner Boerschinger and his proposed class have received or are receiving the requested relief, there’s no longer a case or controversy with respect to the Boerschinger Class issues. Therefore, the Court will dismiss those portions of the amended petition for lack of jurisdiction.

B. Wolfe Class

On the other hand, we have jurisdiction to act with respect to the Wolfe Classfor the following reasons. The Secretary’s arguments to the contrary are not persuasive. Petitioner Wolfe asks us to certify a class of veterans “who[]have been or will be harmed by the Secretary’s unlawful regulation in that the VA has already denied or will deny in the future, in whole or in part, their claims for reimbursement of emergency medical expenses incurred at non-VA facilities on the ground that the expenses are part of the deductible or coinsurance payments for which the veteran was responsible.”92There is no question that Ms. Wolfe’s claim presents a live case or controversy. She was denied reimbursement for non-VA medical services based on what she asserts is an unlawful regulation. As we will explore, the jurisdictional question for her focuses on the method by which she seeks to vindicate her rights.Petitioner Wolfeseeksrelief under the All Writs Act (AWA), whichprovides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction.”93But the AWA standing alone cannot support our jurisdiction.94As its plain language indicates, that statute is designed to aidjurisdiction a court otherwise possesses. “However, [AWA] jurisdiction extends beyond pending cases; it embraces the prospective and potential jurisdiction of a court as well.”95A court may use this AWA power “‘where an appeal is not then pending but may be later perfected.'”96As we have noted before, “if [our] granting of the petitioner’s petition would lead to a [Board] decision over which [we] would have jurisdiction 90Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496(1969)).91See Browder v. Shulkin, 29 Vet.App. 170, 172 (2017) (per curiam); Fabio v. Shinseki, 26 Vet.App. 404, 405 (2013).There is an exception to mootness related to putative class actions for claims that are “inherently transitory.” See Godsey, 31 Vet.App. at 218. The aim of this exception is, in essence, to prevent a defendant (in district courts) from mooting a class action by providing relief to the named plaintiff. Id. That is not what happened here. The Secretary’s actions resolved the error for all members of the putative Boerschinger Class. Therefore, the inherently transitory exception to mootness does not apply on the facts before us.92Am. 2.9328 U.S.C. § 1651(a).94See Cox v. West, 149 F.3d 1360, 1363(Fed.Cir.1998); Heath v. West, 11 Vet.App. 400, 402-03 (1998).95Erspamer v. Derwinski, 1 Vet.App. 3, 8 (1990).96FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943)).


[under 38 U.S.C. § 7252(a)], [we] would possess jurisdiction to issue a writ of mandamus.”97In other words, we have jurisdiction under the AWAwhere we would otherwise “be prevented or frustrated from exercising [our] statutorily granted jurisdiction over a Board decision.”98And in this regard it bears emphasis that we need not be certain about what the future will hold. Jurisdiction under the AWA may be proper to entertain a petition in aid of prospective appellate jurisdiction where it is “impossible . . . to predict what course petitioner’s claim might follow in the future”and “there is nothing to be gained by engaging in such an exercise.”99″[I]t is sufficient to note only that the [alleged VA inaction] directly and adversely effects [our] potential and prospective appellate jurisdiction.”100Congress intended the AWA to function very much at courts’discretion, trusting courts to utilize the AWA to respond to unusual situations flexibly as circumstances warrant.101″It permits federal courts to fill gaps in their judicial power where those gaps would thwart the otherwise proper exercise of their jurisdiction.”102Though there are “traditional”applications of mandamus, “[s]ome flexibility is required if the extraordinary writ is to remain available for extraordinary situations.”103A variety of circumstances, ranging from innocent inefficiency to egregious interference, may call for writs under the AWA to protect our prospective jurisdiction.For example, where VA fails or refuses to adjudicate a claim presented, we have the authority to direct the Secretary to act on that claim.104The reason is simple: if the Agency never acts, we could never exercise our jurisdiction. The same would be true if the Agency sought “to restrict [our] jurisdiction . . . through intimation.”105In that case, we “would have jurisdiction [under the AWA] to issue an injunction in defense of our jurisdiction.”106Under this well-established AWA law concerning the protection of prospective jurisdictionand based on the particular facts before us, we conclude that we have jurisdiction to provide the 97In re Fee Agreement of Cox, 10 Vet.App. 361, 371 (1997), vacated on other groundssub nom. Cox v. West, 149 F.3d 1360 (Fed.Cir.1998).98In re Fee Agreement of Wick, 40 F.3d 367, 373 (Fed.Cir.1994); see also Erspamer, 1 Vet.App. at 8 (“[AWA] jurisdiction is particularly applicable where . . . an alleged [act or] refusal to act would forever frustrate the ability of a court to exercise its appellate jurisdiction.”)99Erspamer, 1 Vet.App. at 9.100Id.101See Monk v. Shulkin, 855 F.3d 1312, 1318(Fed. Cir. 2017)(“Monk II”).102Id.103In re Sch.Asbestos Litig., 977 F.2d 764, 773 (3d Cir. 1992).104See Cox, 149 F.3d at 1362-63; In re Fee Agreement of Cox, 10 Vet.App. at 371; see also38 U.S.C. §7261(a)(2) (“[T]he Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall…compel action of the Secretary unlawfully withheld or unreasonably delayed.”).105Moore v. Derwinski, 1 Vet.App. 83, 84 (1990).106Id. (determining that the Court had jurisdiction over a motion for extraordinary relief independent of a pending appeal).


relief petitionerWolfeseeks, both individually and on a class-wide basis,for two independent but related reasons. First, the regulation itself risks frustratingthe exercise of our statutorily granted jurisdiction over Board decisions. Importantly, the petitioner alleges that VA promulgatedthis regulation to achieve the same effect that the invalid regulation in Staabaccomplished: severely diminish or eliminate VA’sresponsibility for non-VA emergency care reimbursements in contravention of the statute.107This regulation effectively accomplishes a categorical and systematicmeans of communicating the futility of appealing reimbursement denials for those who have any insurance. It operates functionally the same as VA’s refusal to adjudicate a claim for such people at all,just as before Staab,in that it stops otherwise potentially meritorious appeals from progressing through the system.108This is so either because the regulation isthe sole basis of denial or it creates a chilling effect on claimants appealing multi-bases denials. Many rationally acting claimants who have been inappropriately denied reimbursement simply won’t continue with theadministrative process if the regulation so categorially says they will lose at the end of the day, assuming they start the process at all given the regulation. Indeed, this regulation frustrates our jurisdiction in a much more egregiousand insidious(if not as pervasive) way than delays do. After all, one could forgive a potential or denied claimant from ever challenging “the law”when VA presents it so categorically.To grant the petition andissue a writ invalidating the regulation would lead to Board decisions for the Wolfe Class members over whom we would have jurisdiction but who may never appeal because of the existence of the regulation itself.Second, we now know that—in the notification letters seeking to address the Boerschinger Class claims—VA is affirmatively telling a wide range of past claimants who have already been the subject of unlawful administrative action under Staabthat they won’t be reimbursed for so-called “cost-sharing”devices(coinsurance and deductiblesin addition to Congress’s specific exclusionof copayments).109That is critically important because, if left uncorrected, these past claimants won’t appeal or, perhaps, not even continue with a claim. If they drop out after reading the legally incorrect language in the letter, something we’ll address in greater detail below, then we would never get to ruleon the issuefor them; we wouldn’t be able to exercise jurisdiction over a portion of the class. This is yet another reason to use the writ under the particular circumstances of this case.We are cognizant that extraordinary writs are just that—extraordinary. And though mandamus is disfavored to avoid piecemeal appeals,110we face a truly exceptional situation today in which the petitioner alleges that VA promulgated and uses aregulation to circumvent our Staabdecision (or at least its effects),111amounting to a clear abuse of administration discretion anddisrespect for judicial power and, thereby, our very constitutional separation of powers. This most 107Pet’rs’ Reply to Resp’t’s Resp. to Am. Pet. at 8-9; see Am. Pet. at 1-2, 8-9, 14-17, 20-21. We have assumed the truth of allegations in a petition for assessing our jurisdiction under the AWA. See Moore, 1 Vet.App. at 84.108See Staab, 28 Vet.App. at 51-52.109Resp’t’s Resp. to the Court’s May 14, 2019, Order, Exs. 1, 3 (stating in two different notification letters to claimants that “VA has no legal authority to pay a Veteran’s cost shares, deductibles, or copayments associated with their other health insurance”). As we explain below, that statement is incorrect as a matter of law.110In re Sch.Asbestos Litig., 977 F.2d at772 (citing Kerr v. U.S.District Court, 426 U.S. 394, 403 (1976)).111Pet’r’s Reply to Resp’t’s Resp. to Am. Pet. at 8-9.


certainly justifies the writ.112And we add that VA would continue to categorically reject a host of reimbursement claims throughout the pendency of petitioner’s direct appeal without our intervention, in addition to continuing to mail claimants legally erroneous notifications. Quite simply, an extraordinary writ is appropriate when faced with such extraordinary circumstances.Despite all of this, the Secretary insists we lack jurisdiction, so we address his concerns specifically. We do so in recognition of the importance of the issues he raises that, in some respects, go to the heart of our system of tripartite government. First, the Secretary reads section 7261(a)’s introductory language (“[i]n any action brought under this chapter [72]”) to restrict our jurisdiction to performing actions listed in section 7261(a) onlyin the context of reviewing final Board decisions. This argument has no merit whatsoever. To begin with, it entirely ignores the well-established general principles concerning the protection of prospective jurisdiction we have discussed. In addition, it ignores a host of caselaw concerning claims of unreasonable delay, law that seemingly could not exist if the Secretary were correct.113And to top it all off, the Federal Circuit certainly seemed to assume the Court has this authority in both Monkand Martin.114The Secretary also argues that 38 U.S.C. §§ 502 and 7292 provide the Federal Circuit with exclusive power to invalidate VA regulations.115He misunderstands those statutes’import and, thus, overstates their meaning. The Secretary forgets that “the statutory scheme as a whole, the specific context in which [a] word or provision at issue is used, and the broader context of the statute as a whole”all inform any statutory provision’s plain meaning.116Accordingly, we construe a statute “so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.”117The Secretary’s reading of sections 502 and 7292(c) clashes at minimum with sections 7292(a) and 7261(a)(3), in which Congress clearly provided this Court with the power to invalidate VA regulations. Contrary to the Secretary’s reading of section 502 to delineate the jurisdictional divide between this Court and the Federal Circuit, Congress seemingly intended section 502 to delineate the relationship between the Federal Circuit’s jurisdiction and the federal regional circuit 112See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).113See e.g., Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. 2017); Coxv. West, 149 F.3d 1360 (Fed. Cir. 1998); Godsey, 31 Vet.App. 207; Figueroa v. Wilkie, No. 18-6800, 2018 WL 6802821 (Vet. App. Dec. 27, 2018) (order); Palmer v. Wilkie, No. 18-5122, 2018 WL 6442949(Vet. App. Dec. 10, 2018) (order); Richardson v. Wilkie, No. 18-4938, 2018 WL 6313471(Vet. App. Dec. 4, 2018) (order); Harvey v. Shinseki, 24 Vet.App. 284 (2011); Werner v. Derwinski, 3 Vet.App. 37 (1992); Erspamer, 1 Vet.App. 3.114See Monk II, 855 F.3d at1319-20; Martin v. O’Rourke, 891 F.3d 1338, 1348 (Fed. Cir. 2018).115Resp’t’s Resp. to Am. 9.116Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010); see alsoKing v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991); Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1564 (Fed. Cir. 1995) (holding that all parts of a statute mustbe construed together without according undue importance to a single or isolated portion).1172A NORMAN J.SINGER ET AL.,SUTHERLAND ON STATUTORY CONSTRUCTION§ 46:6 (7th ed. 2007)

[hereinafter SUTHERLAND]

; see Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000).


courts of appeal and district courts’jurisdiction.118So it doesn’t seem to play the role the Secretary wants it to. And section 7292(c) must be read in conjunction with its earlier subsection (a), which is clearly premised on the fact that this Court has the power toinvalidate a regulation.Finally, and relatedto the Secretary’s argument about the Federal Circuit’s role, the petitioner argues that nothing indicates that Congress intended to remove an avenue for relief that veterans had before the enactment of the Veterans’Judicial Review Act.119We agree. In fact, the Federal Circuit noted that Congress seemed to intend this Court to hear challenges to VA regulations through class actions.120Therefore, despite the Secretary’s insistence to the contrary, we conclude, after assessing his specific objections and independently considering the matter, that we have jurisdiction to issue the writ that the Wolfe Class seeks. We now turn to class certification and then to whether the named petitioner has shown a right to the writshe seeks.III. THE WOLFE CLASSA. CertificationThis Court has the “authority to certify a class for class action or similar aggregate resolution procedure.”121The Federal Circuit declined to prescribe a specific framework for the Court to use to determine whether class certification is appropriate,122and, to date, the Court has not devised its own rules for certifying a class. However, in Monk v. Wilkie,123the Court determined that we would use Rule 23 of the Federal Rules of Civil Procedure (Rule 23) as a guide for deciding requests for class certification until we issue our own aggregate action rules.124And recently, inGodsey v. Wilkie, the Court fleshed out theframework for analyzing the class 118See United States v. Szabo, 760 F.3d 997, 1003-04 (9th Cir. 2014) (citingH.R.REP. No. 100-963, at 28 (1988) (expressing Congress’s intent “to avoid the possible disruption of VA benefit administration which could arise from conflicting opinions on the same subject due to the availability of review in the 12 Federal Circuits or the 94 Federal Districts”and stating that “the subject of veteran benefits rules and policies is one that is well suited to a court which has been vested with other types of specialized jurisdiction”).119Petrs’Replyto Resp’t’s Resp. to Am. 3-4 (citing Monk II, 855 F.3d at1319-20; Wayne State Univ.v. Cleland, 590 F.2d 627 (6th Cir. 1978); Nehmer v. U.S. Veterans’Admin., 118 F.R.D. 113 (N.D. Cal. 1987)). Indeed, such a result wouldn’t jive with a set of laws intended to increase protections for veterans.120MonkII, 855 F.3d at 1320 n.4.121Id.at1321.122Id. at 1321-22.12330 Vet.App. 167, 170 (2018)(“Monk III”).124Id. at 170 (plurality opinion) (using Rule 23 as a guide), 184 (Allen, J., concurring in part and dissenting in part) (agreeing with the plurality on this point); see Godsey, 31 Vet.App. at 220(applying Rule 23 to petitioner’s request for class certification); Thompson v. Wilkie, 30 Vet.App. 345, 346 (2018)(same).


certification issues.125We therefore consider the instant request for class certification under that framework.Under Rule 23(a), the party seeking class certification must demonstrate that(1) the class is so numerous that joinder of all members is impracticable;(2) there are questions of law or fact common to the class;(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and(4) the representative parties will fairly and adequately protect the interests of the class.126The party must also demonstrate that the action is maintainable as a class under Rule 23(b).127To do so here, the petitioners must establish that the Secretary “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”128Petitioner Wolfe requests certification ofa class of those veterans “who[]have been or will be harmed by the Secretary’s unlawful regulation in that the VA has already denied or will deny in the future, in whole or in part, their claims for reimbursement of emergency medical expenses incurred at non-VA facilities on the ground that the expenses are part of the deductible or coinsurance payments for which the veteran was responsible.”129The Wolfe Classmeets the Rule 23requirements for class certification.i. NumerosityThe petitioners easily meet Rule 23(a)(1)’s requirementwithpotentiallyhundreds of thousands—if not millions—of claimants,130and the Secretary concedes as much.131No further analysis of this aspect of class certification is necessary.ii. CommonalityIn Wal-Mart, the Supreme Court held that Rule23(a)(2) requires a “common contention…of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one 12531 Vet.App. at 220-225.126FED.R.CIV.P.23(a); see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011).127FED.R.CIV.P.23(b); see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).128FED.R.CIV.P.23(b)(2).129Am. 2.130Seeid. at 24 (citingConsol. Rail Corp.v. Town of Hyde Park, 47 F.3d473, 483 (2d Cir. 1995)(more than 40people in a class satisfied numerosity requirement)).131Resp’t’s Resp. to Am. Pet. at 38


of the claims in one stroke.”132The Supreme Court emphasized that “‘[w]hat matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.'”133The existence of even one such question is sufficient to satisfy the Rule 23(a)(2) commonality requirement.134″Factual and legal differences among class members’claims will prove fatal to commonality when those differences ‘have the potential to impede the generation of common answers’to the questions proposed by the class.135As Petitioner Wolfe argues,136this class meets the commonality requirement. Whether the Court should grant the writ the class members’seek “depend[s]upon a common contention”—that the regulation is invalid under section 1725—that “is capable of classwide resolution”—in the form of an orderinvalidating § 17.1005(a)(5), invalidating the Secretary’s denials based at least in partonthatregulation, and ordering the Secretary to readjudicate those claims based on section 1725’sproper interpretation.137There aren’t any factual or legal differences among the Wolfe Class members’claims that will potentially impede the common answer to the validity question.138It is a pure question of law.The Secretary attempts to argue that the Wolfe Class doesn’t meet the commonalitystandard.139Buthe misunderstands thatrequirement.He seems to insist that the answer alone must dispose of class members’ultimate reimbursement claims. That standard is too stringent.The purportedly invalid regulation need not serve as the only basis of denial to harm veterans.For example, a veteran could have declined to appeal a different basis for denial simply because he or she viewed the § 17.1005(a)(5) basis for denial as unassailable.The Secretary relies heavily on the plurality’s commonality analysis inthis Court’s 2018Monkdecision.140Initially, we note that the Monk plurality’s commonality analysis141isn’t precedential. Even so, this case is distinguishable. Monk concerned unreasonable delayand discussedhow reasonablenessis a necessarily factual, case-by-caseinquiry.142In the plurality’s eyes, the petitioners’failure to allege common reasons for delay and to target a “specific practice 132564 U.S. at 350.133Id.(quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)) 359.135Godsey, 31Vet.App. at 221 (quoting Wal-Mart, 564 U.S. at 350) (internal quotation omitted).136Am. Pet. at 25.137See Wal-Mart, 564 U.S. at350.138SeeGodsey, 31 Vet.App. at221(quoting Wal-Mart, 564 U.S. at 350).139Resp’t’s Resp. to Am. Pet. at 38-44.140See id.141Monk III, 30 Vet.App. at 175-81 (plurality opinion).142Id.

22or policy”stymied class certification.143But here we’re talking about a facial challenge toa regulation’s validityas contrary to statute. This isn’t an as-appliedchallenge of § 17.1005(a)(5); we need look only to otherlaw to decide § 17.1005(a)(5)’svalidity.So,any differences in facts doesn’t stymie certification of this classas they did in the Monk plurality.Therefore, wehold that the Wolfe Class presents common questions of law sufficient to establish commonality.iii. TypicalityThe test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named [petitioner], and whether other class members have been injured by the same course of conduct. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from whichit arose or the relief sought.[144]This inquiry focuses on whether “in pursuing [her] own claims, the named [petitioner] will also advance the interests of the class members.”145This requirement is sometimes considered to overlap with other Rule 23 requirements.146″[T]he typicality prong of Rule 23(a) sets a relatively low threshold.”147Typicality is also easier tosatisfy where classes seek injunctive relief.148As with commonality, typicality is also satisfied here. In pursuing her claim for reimbursement of her coinsurance payment, petitioner Wolfewill also advance the interests of the class members because she’sdisputing § 17.1005(a)(5)’s validity, which prevents reimbursement to her, and its chilling effect on appeals, both of which affect the other class members the same way.149As goes herclaim that the regulation is invalid, so go the class claims.150There’s no obvious or alleged variation in claims between the petitioner and absent class members that strikes 180-81.144Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (internal quotation marks omitted); see Robidouxv. Celani, 987 F.2d931, 936-38 (2d Cir. 1993) (explaining that the “typicality requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability,”despite “minor variations in the fact patterns underlying individual claims”).145In re Am. Med. Sys., 75F.3d 1069, 1082 (6th Cir. 1996). 146Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998).147Karvaly v. eBay, Inc., 245F.R.D. 71, 82 (E.D. N.Y. 2007); see, e.g., Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002); Lightbourn v. Cty. of El Paso,118F.3d 421, 426 (5th Cir. 1997).148See Baby Neal for and by Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994).149See In re Am. Med. Sys., 75F.3d at1082.150See Sprague, 133F.3d at 399.

23at the heart of the respective causes of action.151PetitionerWolfe’s claim shares the same essential characteristics as the class claims at large.152Like the rest of the class members’ claims, herreimbursement claim was denied at least in part because it’s a non-refundable payment under the allegedly invalid regulation; thus, she shares the same injury as the other members (responsibility for payments that VA must pay under section 1725), VA’s denial citing the regulation isn’t unique to the petitioner, and other class members bear the burden of paymentsbased on similar denials of reimbursement claims for which VA should be responsible.153The Secretary’s argument that typicality isn’t satisfied154suffers from similar misunderstandings of Rule 23 as does his commonality argument, which we’ve already addressed. Heargues that VA could find additional reasons to deny petitioner’s reimbursement claim or could reverse denial entirely.155The latter “possibility”is impossible, though,because VA must follow the regulation.156As for the former, additional bases for denial wouldn’t make petitioner atypical; her class already includes claimants whose reimbursement claims were denied on multiple bases.We hold that Petitioner Wolfe’s claims are typical of those in the Wolfe Class.iv. Adequacy of Representation”The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties andthe class they seek to represent. ‘[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.'”157″Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.”158Classrepresentatives serve as fiduciaries for certified classes.159Petitioner Wolfe satisfies the adequacy requirement. Shehas an interest in vigorously pursuing the invalidity argument because the success of her reimbursement claim turns on this issue, and nothing indicates that she hasan interestantagonistic to the other class members’151See Deiter v. Microsoft Corp., 436F.3d 461, 466-67 (4th Cir. 2006).152See Haggart v. United States, 89Fed. Cl. 523, 534 (2009); Arreola v. Godinez, 546F.3d 788, 798 (7th Cir. 2008).153See Wolin v. Jaguar Land Rover N.A., LLC, 617F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v. Dataproducts Corp., 976F.2d 497, 508 (9th Cir. 1992)).154Resp’t’sResp. to Am. Pet. 46.156See 38 U.S.C. § 7104(c) (“The Board shall be bound in its decisions by the regulations of the Department.. . .”)157Amchem, 521 U.S. at 625-26 (quoting E.Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).158In re Literary Works in Elec.Databases Copyright Litig., 654F.3d 242, 249 (2d Cir. 2011).159See London v. Wal-Mart Stores, Inc.340F.3d 1246, 1254 (11th Cir. 2003).

24interests.160The Secretary merely arguesthat petitioner’s interests aren’t set yet because she awaits an SOC, but for the reasons discussed in the typicality analysis, this SOC pendency doesn’tconcernus. The Secretary doesn’t allege any otherspecificconflicts of interest between the petitioner and the absent class members, and we don’t independently see any.161We hold that Petitioner Wolfewill fairly and adequately protect the Wolfe Class’s interests.v. Rule 23(b)In addition to the Rule 23(a) requirements, a party seeking class certification must also demonstrate that the proposed class is maintainable under Rule 23(b).162The petitioner hassought to certify a class under Rule 23(b)(2), which “permits a court to certify a casefor class-action treatment if ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.'”163As the Supreme Court explained in Wal-Mart, “[t]he key tothe (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.'”164″Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”165The relief that the petitioners request in this case—declaratory and injunctive relief166—”perforce affect[s] the entire class at once”and is, therefore, precisely the type of relief contemplated by Rule 23(b)(2).167The remedy of declaring the regulation invalid under the statute and ordering readjudication of the affected claims is indivisible in nature; the Court can address VA’s conduct as to all the class members with a single writ in this case.168That the scope of effect on different class members will vary isn’t an impediment; the writ will affect all class members by removing that basis of denial on the reimbursement claims. Accordingly, the Court concludes that 160See In re Literary Works in Elec.Databases Copyright Litig., 654F.3d at 249.161See Amchem, 521U.S. at626.162See Wal-Mart, 564 U.S. at 345.163MonkIII, 30 Vet.App. at 181 (quoting FED.R.CIV.P.23(b)(2)).164564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. REV. at 132)) 360-61.166Am. Pet. at 3-4.167Wal-Mart, 564U.S. at 361-62.168SeeWal-Mart, 564U.S. at 360 (quoting Nagareda, 84N.Y.U. L. REV. at 132).

25petitioner Wolfehasmet herburden of demonstrating that class certification is appropriate in this case.169vi. Adequacy of Class Counsel Under Rule 23(g)”Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.”170″When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4).”171″The court may not appoint class counsel by default.”172Rule 23(g)(1) provides, in relevant part, that, in appointing class counsel, the court:(A) must consider:(i) the work counsel has done in identifying or investigating potential claims in the action;(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;(iii) counsel’s knowledge of the applicable law; and(iv) the resources that counsel will commit to representing the class; [and](B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.][173]The Court is satisfied that the proposed class counselwill adequately represent the Wolfe Class.Counsel has zealously represented the petitioners by diligently and competently identifying, investigating, presenting, and defending claims for relief, including in various pleadings and at 169See Amchem, 521 U.S. at 613-14; MonkIII, 30 Vet.App. at 174.Manageability is generally not a concern in Rule 23(b)(2) class actions. See Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). Even in actions brought under Rule 23(b)(3) where manageability is a mandatory consideration, potential difficulty managing a class action “will rarely, if ever, be in itself sufficient to prevent certification of a class.”Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir. 2004). In any event, we see no reason to deny class certification in this case on manageability grounds—this case is highly manageable, particularly when compared to the massive multistate litigations routinely certified as class actions by district courts. See, e.g., In re Qualcomm Antitrust Litig., 328 F.R.D. 280, 294 (N.D. Cal. 2018) (certifying a nationwide class with between 232.8 and 250 million potential members).170FED.R.CIV.P.23(g)(1).171FED.R.CIV.P.23(g)(2).172Advisory Committee’s Notes to FED.R.CIV.P.23.173FED.R.CIV.P.23(g)(1)(A)-(B).

26oral argument.Via exhibits attached to the amended petition,174counsel have shown that they have done extensive work developing the arguments in this case; demonstrated class action and substantive legal experience; demonstrated relevant legal knowledge of veterans, class action, and statutory interpretation law; and demonstrated willingness to litigate the claim.175Therefore, and because there are no “other matter[s] pertinent to counsel’s ability to fairly and adequately represent the interests of the class,”counsel is “adequate”underthe terms of Rule 23(g). We will appoint Mark B. Blocker, Esq., of Sidley Austin LLP,and Barton F. Stichman, Esq.,of the National Veterans Legal Services Program,as class counsel in this matter.vii. SuperiorityAlthough Rule 23(b)(2) does not require that the party seeking class certification demonstrate that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy”like Rule 23(b)(3) does, we nevertheless address that issue, as this Court did in Godsey.176The Court hasn’t yet created a test or standard for evaluating superiority.177But, among other considerations,this case’s unique circumstances demand the enforcement advantages that a class action offers over another precedential decision. Compare enforcement in a precedential-decision versus class-action context.178A precedential decisioncertainly binds VA in future claims.179But if for whatever reason VA errs with respect to other claims, those aggrieved claimants don’t have any right to prompt remedial enforcement. Full exhaustion of the agency review process, followed by an appeal to this Court, is their only recourse. But sometimes circumstances indicate a need for prompt remedial enforcement. There,class certificationprovides such enforcement. The resulting relief, if awarded, could be enforced by anyclass member,particularly those who are absent, who suffers, for example,error based onVA noncompliance.180Here, thoughanotherprecedential decision would undoubtedly bind VA, Petitioner Wolfe’sallegations uniquely highlight the inferiority of a precedential decisionunder the facts before us.VA couldcircumvent another decision—as it allegedly did Staab—without concern about enforcement beyondanother appellate proceeding.If we award the Wolfe Class’s requested relief, any class member(particularly those who are absent)who suffers VA’s noncompliancecould enforce it. This case’s allegationsabout VA’s post-Staab conductdemanda means for prompt collective enforcement. 174See Am. Pet.Exs. A-O.175See FED.R.CIV.P.23(g)(1)(A)(i)-(iv).17631Vet.App. at 224.177See id.(finding the class action device superior in the case at hand but not offering a test). 178See id.(discussing enforcement).179See38U.S.C. §502.180See 38 U.S.C.§ 7265(a)(3) (empoweringus to “punish by fine or imprisonment”any “disobedience or resistance to its lawful writ, process, order, rule, decree, or command”).

27Further, the class action device herewould allow for consistent adjudication ofsimilar claims involving this regulation and allow the Court to more quickly address this systemic issue to reduce delay associated with individual appeals. The Court can compel correction of the alleged, systemic disregard forbothStaaband section 1725 and ensure that veterans are treated alike.181To force class members to proceed through the normal appellate process individually would amount to a monumental waste of agency and judicial resources in a system already rife with delay.182In short, a class action is a more efficient and effective vehicle for resolving this casethan a precedential decision focused on an individual veteran’s case.183viii. Opt-Out and NoticeWe have two final, related matters to consider. We must first determine whether to afford class members the opportunity to opt out of the class we have certified. Next we must determine what type of notice, if any, to provide to the class about this certificationdecision. The issues are related because, if opt out rights are available, ensuring actual notice of the pendency of the class action takes on greater importance.Because this is a class certified under Rule 23(b)(2)184and relief of invalidating the Regulation and issuing corrective notice is indivisible,185combined with the Court’s national jurisdiction,186we won’t allow class members the opportunity to opt out. Because class members don’t have the right to opt out of the certified class, notice is less critical than if class members could remove themselves from the class.This case is comparable to Godsey in that we need not provide notice of certification to the affected class members because, like in Godsey,we’re resolving the class certification request and the merits of the underlying petitionconcurrently.187Also, and as we will discuss below, as part of the relief for those affected veterans we grant, the Secretary will issue notice correcting his misinterpretation of section 1725; that notice renders separate notice of certification largely unnecessaryas a practical matter.188ix. Certification of the Class181See Monk II, 855F.3d at 1321.182See Martin, 891F.3d at1349-53 (Moore, J., concurring).183See Godsey,31Vet.App. at 224.184See Stoetzner v. U.S. Steel Corp., 897F.2d 115, 119 (3d Cir. 1990).185See In re Allstate Ins. Co., 400F.3d 505, 506 (7th Cir. 2005) (commenting that “[t]he thinking behind this distinction [concerning opt-out rights] is that declaratory and injunctive relief will usually have the same effect on all members of the class as individual suits would”).186See38U.S.C. §7269.187See Godsey, 31 Vet.App. at 224-25.188This conclusion, however, is based on the unique circumstances of this case and should not be construed as a holding that class certification notice is not necessary in future cases.See id.

28For the reasons outlined above, the Court certifies the following class for purposes of this petition:All claimants whose claims for reimbursement of emergency medical expenses incurred at non-VA facilitiesVA has already denied or will deny, in whole or in part, on the ground that theexpenses are part of the deductible or coinsurance payments for which the veteran was responsible.Having decided the request for class certification, the Court now proceeds to the merits of the class members’petition.B. Merits of the Class PetitionHaving determined that we have jurisdiction—or power—to proceed, and that we will certify the Wolfe Class, we turn to whether we should issue the writ requested.189This Court has authority to issue extraordinary writs in aid of its jurisdiction pursuant to the AWA.190However, “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.”191Three conditions must be met before the Court can issue a writ: (1) The petitioner must demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and indisputable rightto the writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted.192Because Petitioner Wolfe meets all three of these conditions, we can and will issue a writ here.i. Clear and Indisputable Right to the WritIn the context of the petition before us, the question whether petitioner is clearly and indisputably entitled to a writ comes down to whether 38 C.F.R. § 17.1005(a)(5) is invalid because it is inconsistent with 38 U.S.C. § 1725. As we now explain, it is.When reviewing “an agency’s construction of the statute which it administers,” a court always asks first “whether Congress has directly spoken to the precise question at issue,” and, “if the intent of Congress is clear, that is the end of the matter [because] the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”193However, “if the 189As we noted above, the Secretary conflates the question of jurisdiction with whether the substantive requirements for the issuance of the writ have been met. We stress that these questions are, importantly, distinct. The first, jurisdiction, goes to whether we have powerto do anything. The second assumes we have the authority to act and focuses on whether the Court should on the factsexercisethat power. 190See Cox, 149 F.3d at1363-64; Kelley v. Shinseki, 26 Vet.App. 183, 185 (2013).191Kerr, 426 U.S. at402.192See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004); Kelley, 26 Vet.App. at 186-92.193Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).


Upon consideration of the foregoing, it is

ORDERED that the Wolfe Classis certified as defined here: “All 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.” It is further

ORDERED that Mark B. Blocker, Esq., of Sidley Austin LLP,and Barton F. Stichman, Esq., of the National Veterans Legal Services Program, are appointed as class counsel. It is further

ORDERED that 38 C.F.R. § 17.1005(a)(5) is invalid because it is contrary to 38 U.S.C. §1725.It is further

ORDERED that the Secretary’s decisions made under § 17.1005(a)(5), to the extent they denied reimbursement to Wolfe Class members for medical expenses deemed deductibles or coinsurance, in whole or in part, are invalid. It is further

ORDERED that Secretary must readjudicate these reimbursement claims under section 1725’s proper interpretation. It is further

ORDERED the Secretary stop sending its corrective letters immediately because they contain incorrect statements of what the law is, namely: “It is important to note that VA has no legal authority to pay a Veteran’s cost shares, deductibles, or copayments associated with their other health insurance.” And it is further

ORDERED that within 45days of the date of the order the Secretary prepare and submit to the Court for approval a plan for providing notice to veterans affected by the provision of notice that contained an incorrect statement of the law concerning reimbursement of costs for non-VA emergency care.

DATED: September 9, 2019      PER CURIAM

FALVEY, Judge, dissenting:

I respectfully dissent from my colleagues’ decision to grant mandamus relief. I would deny Ms. Wolfe’s petition because her requested mandamus relief is not in aid of our appellate jurisdiction.240Nor does she demonstrate an indisputable right to a writ. And, our statutorily prescribed appeals process provides her with adequate alternative means to obtain her desired relief. Though I will focus my analysis on Ms. Wolfe, I would, for the same reasons, deny mandamus relief for the Wolfe class. Admittedly, we have authority under the AWA to “issue all writs necessary or appropriate in aid of [our] jurisdiction[]and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a); see also Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017) (“The [AWA] unquestionably applies in the Veterans Court.”). But “[t]he remedy of mandamus is a drastic one, 240I agree with the Court’s decision to dismiss Mr. Boerschinger’s petition as moot.


to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). Mandamus relief is not appropriate unless three conditions are met: (1) The petitioner must demonstrate a clear and indisputable right to the writ; (2) the petitioner must demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted. Cheney v. U.S. Dist. Court,542 U.S. 367, 380-81(2004). Because Ms. Wolfe’s petition is not in aid of our jurisdiction and does not meet the requirements for a writ, the Court should not grant mandamus relief.

1. Not in Aid of our Jurisdiction

The AWA authorizes us to issue only those writs that are in aid of our appellate jurisdiction. 28 U.S.C. §1651(a). This is because the AWA is not an independent grant of jurisdictional authority. Roche v. Evaporated Milk Ass’n, 319U.S. 21, 26(1943). The AWA does not expand a court’s jurisdiction. Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998). Rather, it is “a residual source of authority” that allows us to protect our statutorily prescribed jurisdiction. Pennsylvania Bureau of Corr.v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).”It permits federal courts to fill gaps in their judicial power where those gaps would thwart the otherwise proper exercise of their jurisdiction.” Monk, 855 F.3d at 1318. Or it “remove[s] obstacles to an appeal.” Roche, 319U.S. at 26. But the AWA does not create jurisdiction where it does not already lie. In re Tennant, 359F.3d 523, 530 (D.C. Cir. 2004)(“[M]andamus would otherwise be an original action, not in aid of appellate jurisdiction.”).The party seeking a writ therefore must show “that the action sought by mandamus is within the court’s statutorily defined subject matter jurisdiction.” In re Matter of Wick, 40 F.3d 367, 372-73 (Fed. Cir. 1994).Our jurisdiction is defined by statute. Burris v. Wilkie, 888 F.3d 1352, 1357 (Fed. Cir. 2018). In 38 U.S.C. §7252, Congress granted us appellate jurisdiction over final Board decisions. That statute states that we have “exclusive jurisdiction to review decisions of the Board” and that our review must be “on the record of proceedings before the Secretary and the Board.” It further provides that our review of final Board decisions is “limited by the scope provided in section 7261.” Section 7261 lists actions to take and standards to apply during our appellate review. Of relevance here, the statute states that we may “decide all relevant questions of law,” “interpret . . . regulatory provisions,” and “compel action of the Secretary unlawfully withheld or unreasonably delayed.” 38 U.S.C. §7261(a); see also Martin v. O’Rourke, 891 F.3d 1338, 1343 (Fed. Cir. 2018)(section 7261 “provides the standards the . . . Court must use when reviewing actions of the Secretary”). Taken together, section 7252 and 7261 allow us to decide questions of law and compel unlawfully withheld secretarial action, among other things, in the context of reviewing final Board decisions. We thus may grant a petition for writ of mandamus when the relief sought has some sort of relationship to a final Board decision over which we could exercise jurisdiction. See Cox, 149F.3d at 1364-66 (addressing whether the appellant’s fee agreement dispute could lead to a final Board decision such that a writ of mandamus would be appropriate). But Ms. Wolfe’s petition lacks such a connection. She does 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 our Court.241 She doesn’t want us to remove an obstacle. Instead, she wants to skip the appeals process entirely and bring her regulatory challenge directly to the Court. She asks the Court to directly determine the validity of §17.1005(a)(5) and find, in the first instance, that VA incorrectly denied reimbursement under that regulation. Granting her requested relief would thwart, not aid, our appellate jurisdiction. Because granting Ms. Wolfe’s petition could not lead to a final Board decision reviewable by this Court, and would, in fact, abrogate the need for such a decision, her requests for relief are not in aid of our jurisdiction, and her petition must be denied. Am. Legion v. Nicholson, 21 Vet.App. 1, 7 (2007); Yi v. Principi, 15 Vet.App. 265, 267 (2001)(“[T]he Court’s jurisdiction to issue the order sought by the petitioner depends upon whether the Court would have jurisdiction to review the final Board decision that would issue pursuant to that order.”).The majority concludes that Ms. Wolfe’s requests for relief are in aid of our jurisdiction for two reasons. First, because “the regulation itself risks frustrating the exercise of our statutorily granted jurisdiction over Board decisions.” See ante at 16. And second, because the letters notifying claimants they wouldn’t be reimbursed for “cost-sharing” devices under the regulation could discourage claimants from appealing. Id. But, this is true of everyone who has a disagreement with any regulation promulgated by the Secretary. Put another way, the majority says that we should issue an extraordinary writ whenever a claimant disagrees with a VA regulation and gets a letter telling the claimant he or she was denied based on that regulation. I simply do not agree. Merely citing a regulation that the petitioner believes is invalid is not enough to warrant a writ of mandamus. Many decisions in the VA system turn on the applicability or interpretation of a VA regulation, and”[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr,426 U.S. at 402. Moreover, informing claimants that their claims have been denied under §17.1005(a)(5) is not the functional equivalent of a refusal to act. The Secretary is required by law to inform a claimant of the bases on which VA has denied her claim. 38 U.S.C. § 5104(b). Rather than creating a chilling effect, providing a claimant the reason for a VA denial helps the claimant appeal a wrongful decision. Nor do I agree with the majority that we have the authority to grant Ms. Wolfe’s request for direct regulatory review without the prospect of a final Board decision merely because we have prospective jurisdiction over her claim. Our AWA authority to act in cases within our prospective jurisdiction is not that unfettered. It is tied to the exercise of our actual appellate jurisdiction: we have authority under the AWA to act in cases potentially within our jurisdiction when our action is “in aid of the appellate jurisdiction which might otherwise be defeated. “F.T.C. v. Dean Foods Co., 384 U.S. 597, 603 (1966); see also McClellan v. Carland, 217 U.S. 268, 280 (1910) (“We 241The majority notes that a November 20, 2018, letter from the Secretary states that Ms. Wolfe’s appeal was “closed.” Ante at 10. If this letter showed the Secretary’s refusal to process Ms. Wolfe’s appeal, thus foreclosing the possibility of a final Board decision addressing the denial of reimbursement, the AWA would give us the authority to remove this obstacle to our appellate jurisdiction. See Roche, 319 U.S. at 26.But in her amended petition Ms. Wolfe does not ask us to take this action. Rather, she maintains that her appeal to the Board is being processed and that she is “continu[ing] to pursue her direct appeal.” Am. Pet. at 10 n.2.


think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ may issue in aid of the appellate jurisdiction which might otherwise be defeated.”). Otherwise, “[t]he mandamus would . . . be an original claim, not in aid of appellate jurisdiction.” In re Tennant, 359 F.3d at 530.Ms. Wolfe’s status as a prospective appellant allows us to use our mandamus power only if her requested relief were related to bringing her case within our appellate jurisdiction. But Ms. Wolfe’s petition does not request such relief. Instead, she asks us to rule in the first instance that §17.1005(a)(5) is invalid and that the Secretary wrongfully denied reimbursement under that regulation. In essence, she requests we exercise original jurisdiction over regional office denials of reimbursement under §17.1005(a)(5), rather than act in aid of our appellate jurisdiction over final Board decisions. The AWA does not authorize us to act in these circumstances. Mandamus in support of prospective jurisdiction, “like any exercise of appellate jurisdiction, [i]s limited to review of ‘proceedings in a cause already instituted.'” In re Tennant, 359 F.3d at 530(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-76 (1803)).Also, I do not find that the cases cited by the majority support granting a petition that would effectively deprive the Court of our appellate jurisdiction over a final Board decision. Each of the cases cited by the majority are tied to our actual or prospective appellate jurisdiction, particularly those addressing unreasonable agency delay. As we explained in Erspramer v. Derwinski, we may exercise our mandamus authority to address “inadvertent or intentional administrative delay” because such delay “directly and adversely effects the potential and prospective appellate jurisdiction of this court.” 1 Vet.App. 3, 9 (1990). No case supports the majority’s assertion that we may exercise our mandamus power in a case where a petitioner’s case is not within our actual jurisdiction and granting the petition would remove the case from our prospective jurisdiction. Rather, the AWA “extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected.” See F.T.C., 384U.S. at 603 (emphasis added).I do not read either Monk or Martin as providing us with the authority to act in the absence of an actual or prospective Board decision. Monk dealt with the parties’ complaint that they were not able to obtain a Board decision because of VA’s continual delays. Martin explained that “[b]ecause the statutory obligation of a Court of Appeals to review on the merits may be defeated by an agency that fails to resolve disputes, a Circuit Court may resolve claims of unreasonable delay in order to protect its future jurisdiction.”Martin,891 F.3d at 1342-43(citing Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)).

Neither case addressed whether the Court could issue a petition in a case like this one, where Ms. Wolfe does not intend to seek a Board decision before requesting that the Court review the merits of VA’s denial of her claim. Furthermore, though the majority states that Monk and Martin” seemed to assume” that section 7261 provides the Court with authority to address the Secretary’s actions in the absence of an actual or potential Board decision, ante at 17, neither case so held. Nor could they have done so, as the Federal Circuit is bound by statute, and section 7261 does not provide an independent grant of jurisdictional authority but, rather, defines the scope of our section 7252 jurisdiction to review final Board decisions.


No Clear and Undisputable Right to a Writ

Ms. Wolfe contends that she is entitled to a writ because 38 C.F.R. § 17.1005(a)(5) conflicts with the plain language of 38 U.S.C. §1725(c)(4)(d) and runs afoul of Staab. But the regulation at issue in this case is not the one invalidated in Staab. The Secretary amended §17.1005(a)(5) in response to Staab and he contends that the amended regulation is both a valid interpretation of §1725(c)(4)(d) and consistent with his authority to “delineate the circumstances under which such payments may be made.” 38 U.S.C. §1725(c)(1)(B).The Secretary makes a good argument that the amended § 17.1005(a)(5) is a permissible construction of section 1725.The regulation states that that “VA will not reimburse a veteran under this section 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.” This language mirrors the language of section 1725(c)(4)(D), except for the addition of “deductible, coinsurance.” The Secretary argues that the addition of these terms is consistent with the statute because “deductibles and coinsurance are also cost-sharing tools used in the health insurance industry and, as such, share the same basic function or purpose as copayments.” Secretary’s Response to Am. Pet. at 17. He argues that the term “cost sharing” is an umbrella term that captures deductibles, coinsurance, copayments, and all other similar charges. And he points out that Ms. Wolfe’s interpretation would read out the term “similar payment” from the statute because “if deductibles and coinsurance are not ‘similar payment[s]” to copayments . . . , VA is not aware of any other form of payment that would be.” Id. at 19. It may be that Ms. Wolfe is correct and the new regulation is invalid for the same reasons invalidating the regulation in Staab. But she is not clearly and indisputably correct. The new regulation and the Secretary’s justification for it have not yet been the subject of a decision by our Court. At the very least, the Secretary’s reasoned and persuasive statutory-interpretation argument shows that the invalidity of §17.1005(a)(5) is not a foregone conclusion. Because there is no clear and undisputable right to a writ of mandamus, I would deny her petition.

3. Adequate Alternative Means To Obtain the Requested Relief

We also should deny Ms. Wolfe’s petition because the statutory appeals process provides her with adequate means to obtain her desired relief. “Ordinarily mandamus may not be resorted to as a mode of review where a statutory method of appeal has been prescribed or to review an appealable decision of record.” Roche, 319 U.S. at 27-28. Rather, a successful petitioner “must demonstrate the lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process.”Cheney,542 U.S. at 380-81(2004).Although Ms. Wolfe asks the Court to review the validity of §17.1005(a)(5) and reverse VA decisions that have denied benefits under that regulation, she concedes that she is currently in the process of obtaining a Board decision that addresses these issues. The regional office has denied her claim for reimbursement, she has filed a Notice of Disagreement with that decision, and she is awaiting a Statement of the Case that will allow her to perfect her appeal to the Board. Am. Pet. at 10 n.2 (stating Ms. Wolfe’s belief that her appeal remains open and pending and that she “will continue to pursue her direct  appeal” to the Board).


Ms. Wolfe seeks to use mandamus as a substitute for this appellate process. She would like us to issue a writ in lieu of her completing the statutorily prescribed procedure of appealing a Board decision because it takes too long and, in any event, the Board is obliged to apply VA regulations. But “‘extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.'” Lamb v. Principi, 284 F.3d 1378, 1384 (Fed.Cir.2002) (quoting Bankers Life & Cas. Co. v. Holland, 346U.S. 379(1953)). The AWA does not authorize us to “issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” Pennsylvania Bureau of Corr., 474U.S.at43. Although “hardship is imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from a final judgment, . . . such hardship does not necessarily justify resort to certiorari.” U.S. Alkali Exp. Ass’n v. United States, 325 U.S. 196, 202 (1945).This is particularly true here, where Congress has explicitly conditioned our jurisdiction on a final decision of the Board. As the Supreme Court explained in Roche, when Congress has determined that a court of appeals has jurisdiction over final decisions, it is not appropriate to issue a writ of mandamus to circumvent that jurisdictional requirement. 319 U.S. at 29. “Where the appeal statutes establish the conditions of appellate review an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions.” Id. at 30. Even when obtaining a final decision from the adjudicator below would be costly and inconvenient, this “inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.” Id.

Finally, I note that a Board decision addressing veterans’ claims could find facts in the first instance and develop a record that the Court could base its review on. See38 U.S.C. § 7252(b) (“Review in the Court shall be on the record of proceedings before the Secretary and the Board.”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate for  a for initial fact finding.”).The drastic remedy of mandamus is properly exercised when certain, well established criteria are met. Because Ms. Wolfe’s petition is not in aid of our jurisdiction, she lacks an undisputable right to a writ, and there are adequate alternative means to obtain her desired relief, she does not meet the criteria for issuance of a writ of mandamus. And because she is not entitled to a writ, neither is the class. I therefore would deny her petition and that of the Wolfe class.


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