[00:00:00] Speaker 03: The first is number 20-1958, Wolf v. McDonough, Mr. Bruskin. [00:00:09] Speaker 04: May it please the Court. [00:00:11] Speaker 04: This is an appeal from a decision of the Veterans Court granting a petition for a writ of mandamus and certifying a class. [00:00:18] Speaker 04: The Court made multiple errors as highlighted in our briefs, but I'd like to discuss two today, Your Honors. [00:00:24] Speaker 04: Ms. [00:00:24] Speaker 04: Wolf had adequate alternative means to obtain the relief she was seeking by continuing the Title 30A process, obtaining a board decision, and appealing it to the Veterans Court. [00:00:34] Speaker 04: Second, the Court, although it recognized that the All Writs Act cannot expand its jurisdiction, it directly reviewed VA's rulemaking, which is a function that Congress vested exclusively in this Court in Section 502. [00:00:47] Speaker 04: On the first point, Title 38 provides veterans like Ms. [00:00:51] Speaker 04: Wolfe with multiple avenues of administrative remedies and judicial review. [00:00:55] Speaker 04: The Staub case not binding on the government in this case is a matter of collateral estoppel, right? [00:01:01] Speaker 04: It is not on collateral estoppel. [00:01:03] Speaker 04: No, the Staub decision addressed the criteria for eligibility for payments under Section 1725. [00:01:11] Speaker 04: It did not interpret or address 1725C4D. [00:01:14] Speaker 03: It wouldn't make any difference if it had, would it? [00:01:18] Speaker 03: I mean, as I understand the Veterans Court, they're saying, yes, the Stout decision would resolve this issue. [00:01:25] Speaker 03: Let's assume that they're right about that, but that still wouldn't be binding on the government, right? [00:01:31] Speaker 03: No, I mean, the government is... It's binding in that case, but it's not binding in future cases. [00:01:37] Speaker 04: Well, if it's a precedential decision, then it can have binding effect. [00:01:41] Speaker 04: What about this court? [00:01:42] Speaker 04: What's that? [00:01:43] Speaker 04: Not on this court. [00:01:44] Speaker 04: No, Your Honor, of course not. [00:01:45] Speaker 04: I thought. [00:01:46] Speaker 03: No, not this court. [00:01:47] Speaker 04: I'm sorry. [00:01:47] Speaker 04: And this doesn't answer your question. [00:01:50] Speaker 03: No, it doesn't have binding effect on this court. [00:01:51] Speaker 03: You're correct, Your Honor. [00:01:53] Speaker 03: Or on the government, because you're entitled to litigate the issue that you lost in the Stout case in another case, right? [00:02:02] Speaker 04: Right. [00:02:02] Speaker 04: I mean, the court, if it had simply waited for the board decision, could have invalidated VA's regulation based, if it wanted to, on its reasoning in STOB. [00:02:12] Speaker 04: But it viewed the VA's regulation as somehow evading the determination made in STOB. [00:02:20] Speaker 04: But STOB only talked about the criteria for eligibility. [00:02:23] Speaker 04: It did not talk about the payment regulation. [00:02:25] Speaker 04: So it did not decide the issues that VA was left to deal with following the STOB decision. [00:02:33] Speaker 04: This court in Lamb and Newman and others have opined that unless there's no meaningful avenue of review, mandamus is not appropriate. [00:02:44] Speaker 04: Lamb is particularly important because it talked about the adequacy of the Title 38 processes. [00:02:50] Speaker 02: Counselor, I'm interested in this question about whether there's an adequate alternative remedy. [00:02:56] Speaker 02: If we find that [00:03:00] Speaker 02: If we take a particular decision, it's going to just result in a useless exercise, meaning that the issue is going to come back to us. [00:03:07] Speaker 02: The very issue that is squirrely planted in this court is going to come back to us. [00:03:14] Speaker 02: Then how would we say that that's an adequate remedy? [00:03:18] Speaker 04: Well, it would be, the question is, [00:03:21] Speaker 04: Aside from mandamus is what's available to her adequate for Ms. [00:03:25] Speaker 04: Wolfe to obtain her relief. [00:03:27] Speaker 04: If she had waited for the board decision and appealed to the Veterans Court, the Veterans Court could have reviewed the regulation in an as applied challenge. [00:03:34] Speaker 04: But on the question of uselessness, Your Honor, I have several responses to that. [00:03:39] Speaker 04: First, as we note in our brief, it would not have been useless for the board to address the questions in this case first and to build a record of the proceedings. [00:03:49] Speaker 04: The 7252B requires the Veterans Court to make decisions on veterans cases on the record before the board. [00:03:58] Speaker 04: Congress, in section 511A, said it wanted the secretary and the board to make determinations on questions of law, in fact, even though the board is not able to overturn a regulation. [00:04:10] Speaker 04: So just on the question of whether it's useful. [00:04:12] Speaker 02: What would happen then? [00:04:13] Speaker 02: The board cannot overturn its own regulations. [00:04:17] Speaker 02: In my crystal ball, I see the issue going up to the Veterans Court. [00:04:22] Speaker 02: And then after that, what's going to happen? [00:04:25] Speaker 02: The issue's going to come up to us. [00:04:26] Speaker 04: If it's appeal, but it might not, Your Honor. [00:04:28] Speaker 04: The decision may not be appealed by either side. [00:04:31] Speaker 04: So it wouldn't necessarily come here. [00:04:33] Speaker 04: Of course, as we note in our brief, Ms. [00:04:35] Speaker 04: Wolf has Section 502 as an adequate means in addition to following her case through the Title 38 process, because she could today file a challenge [00:04:44] Speaker 04: to the VA regulation in this court and get direct review by this court. [00:04:48] Speaker 01: So just to clarify, it's your position that a 502 action could be filed now? [00:04:53] Speaker 01: Yes. [00:04:53] Speaker 04: The regulation she's challenging was promulgated in 2018 or 19, I believe. [00:04:57] Speaker 04: And so it's within the six year time frame for such a challenge. [00:05:01] Speaker 04: So it could be filed this afternoon, Your Honor. [00:05:04] Speaker 04: The other issue with futility, and there's two questions, two additional points I'd like to make. [00:05:09] Speaker 03: The first is that there wouldn't be any problem with addressing the validity of the regulation in an individual benefits case, right? [00:05:20] Speaker 03: Correct. [00:05:21] Speaker 03: There would not be. [00:05:22] Speaker 03: The Veterans Court in 7261 is in power. [00:05:25] Speaker 03: It has basically two roots here, either to bring a 502 challenge in this court or to raise that issue in her individual case. [00:05:36] Speaker 03: You're just saying 502 prevents mandamus. [00:05:40] Speaker 04: 502 prevents mandamus for several reasons here. [00:05:43] Speaker 04: One is it is one of the adequate avenues she had for relief. [00:05:47] Speaker 04: So under the Cheney test for mandamus, she doesn't satisfy it. [00:05:50] Speaker 04: The other is that Congress gave this court exclusive jurisdiction to review rulemaking in 502. [00:05:56] Speaker 04: By granting the writ here, the Veterans Court directly reviewed VA's regulation. [00:06:01] Speaker 04: That is not within its jurisdiction. [00:06:03] Speaker 01: It was an individual case, right? [00:06:06] Speaker 04: True, but it's not a direct challenge if it's an individual case. [00:06:10] Speaker 04: It's as applied challenge based on the record of proceedings before the board. [00:06:14] Speaker 04: And 7261 powers are triggered by a final board decision under 7252A. [00:06:20] Speaker 04: which requires a board decision to reach the Veterans Court to mount an as-applied challenge. [00:06:25] Speaker 04: And that was going to be the other point I made on the uselessness question, is that 7252A is a jurisdiction requirement for a board decision to reach the Veterans Court. [00:06:35] Speaker 04: And so it is not subject to waiver for futility or a waiver of administrative exhaustion. [00:06:40] Speaker 01: What about the All Writs Act, which states that the court can enter writs in cases in which it would aid their jurisdiction? [00:06:48] Speaker 04: Sure, so there is the limited notion of perspective or potential jurisdiction where there's a plausible claim that something is preventing the petitioner from reaching the Court of Appeals. [00:06:59] Speaker 04: Here, Ms. [00:07:00] Speaker 04: Wolf did not allege that she was being prevented from obtaining a Board decision for appeal to the Veterans Court. [00:07:06] Speaker 04: In her petition, she told the Veterans Court she was continuing to pursue her relief at the Board. [00:07:11] Speaker 04: And all she needed to do was wait and obtain that board decision, and she could have appealed to the Veterans Court. [00:07:17] Speaker 04: So yes, there are limited situations where a prospective jurisdiction can provide a court the ability to reach down below a jurisdiction requirement, but only if the writ is in aid of actually exercising jurisdiction at some point. [00:07:32] Speaker 01: If we were to agree with you that there were no alternative avenues for relief available, what would the agency's position be on remand? [00:07:41] Speaker 04: on remand. [00:07:43] Speaker 01: I assume that if we were to say that the petition was improvidently granted, then the case would go back down to the board? [00:07:51] Speaker 04: Yes. [00:07:52] Speaker 04: So if the court vacated the writ here, it would also dissolve the class. [00:07:58] Speaker 04: And it would go back down to the board to re-adjudicate in light of the court's decision. [00:08:02] Speaker 04: And then she would get a decision that she could appeal to the Veterans Court. [00:08:05] Speaker 04: The Veterans Court would have a record of the proceedings, as Congress intended, and it could review the regulation in an as-applied challenge. [00:08:13] Speaker 02: If that's the case, then why are we back to this being a useless exercise? [00:08:17] Speaker 04: Because it's not useless. [00:08:18] Speaker 04: Congress designed the system so that the Veterans Court only had the power to conduct as-applied regulatory review based on the record of proceedings before the board. [00:08:27] Speaker 04: And what we see here is the practical problem with what the court did instead. [00:08:32] Speaker 04: If she filed a 502 challenge, there'd be an administrative record, right? [00:08:35] Speaker 04: Federal Circuit Rule 15 governs administrative records. [00:08:40] Speaker 04: If she raised this in a proper as applied challenge, there'd be a record of proceedings which the court is required to review under 7252B. [00:08:49] Speaker 04: The Veterans Court has rules for that, Rule 10 and 28.1. [00:08:52] Speaker 04: There are no rules for it to review regulations directly. [00:08:57] Speaker 04: where it hasn't yet been applied by the board in that case. [00:09:00] Speaker 04: And so what we have here, you'll see it in the record, is the Veterans Court issuing order after order to the VA because it has questions, because it doesn't know the record. [00:09:08] Speaker 04: It doesn't know what supports this regulation because it was outside the bounds of the statutory scheme in conducting a direct regulatory review. [00:09:18] Speaker 01: Counsel, in response to that prior question that I asked about what would happen if we were to send the case back or vacate the writ, [00:09:26] Speaker 01: What about the fact that the board already issued a decision in Ms. [00:09:30] Speaker 01: Wolf's favor? [00:09:32] Speaker 04: That is a difficult question. [00:09:33] Speaker 04: I'm not sure what the board would do in that circumstance because that board decision should not have issued because her case is still on appeal. [00:09:42] Speaker 04: So to be honest, I don't know exactly how the board would deal with Ms. [00:09:46] Speaker 04: Wolf's case itself. [00:09:49] Speaker 04: So I don't have a direct answer to that. [00:09:51] Speaker 04: I think the board probably hasn't been put in that situation [00:09:54] Speaker 04: frequently, so I'm not sure the board would even necessarily know exactly how it would proceed in that case. [00:10:00] Speaker 04: But for other veterans whose claims have not yet been adjudicated, obviously the adjudication will stop to evaluate the decision here and then move forward. [00:10:10] Speaker 04: There is also the situation where the Veterans Court has continued to require the VA to implement the writ, and so the VA has continued to pay money out to veterans under the strictures of the writ. [00:10:22] Speaker 04: So there are a lot of complicated issues [00:10:24] Speaker 04: that will come about because of the way the Veterans Court went about enforcing its writ and preventing the VA from appealing to this court for seven months following the issuance of the order. [00:10:36] Speaker 03: Could we talk for a minute about the regulations and construction of the statute? [00:10:43] Speaker 03: Are you familiar with the legislative history of this provision of the statute? [00:10:48] Speaker 03: of the 17C4D, Your Honor? [00:10:53] Speaker 04: Generally, yes, Your Honor. [00:10:54] Speaker 03: But my understanding is that at the hearings on the bill, the VA, having originally objected to another version of the bill, took the position that what this exception applied to [00:11:09] Speaker 03: was co-payments and deductibles without any mention of co-insurance. [00:11:16] Speaker 03: And why shouldn't we look to that as an interpretation or as legislative history helping us to understand what the statute means? [00:11:28] Speaker 03: In other words, that the statute covers co-payments and similar payments and that the similar payments are deductibles and not co-insurance. [00:11:39] Speaker 03: Well, even if the court were to do that, the writ here would still need to be reversed. [00:11:46] Speaker 03: I'm past that. [00:11:47] Speaker 03: I'm asking about the correct construction of the statute. [00:11:51] Speaker 03: And it strikes me, perhaps, that both sides are wrong about this, that your construction means that partial coverage [00:12:05] Speaker 03: is sufficient to defeat reimbursement. [00:12:08] Speaker 03: Their position is that the word similar payments has no meaning. [00:12:13] Speaker 03: It's limited only to copayments. [00:12:15] Speaker 03: Why isn't there a correct middle ground based on the legislative history that copayments and deductibles fall within the exception, but that coinsurance does not? [00:12:31] Speaker 04: object to the notion that that is a reasonable reading of the statutory language. [00:12:36] Speaker 04: And in fact, VA's regulation from 2012 precluded reimbursement of copayments and deductibles. [00:12:43] Speaker 04: In 2018, the VA explained it was clarifying that in its view, it had also always considered coinsurance to be similar, but had not put it into the regulatory language. [00:12:53] Speaker 04: So your honor is absolutely correct. [00:12:55] Speaker 04: There is a valid ground for arguing that [00:12:58] Speaker 04: the similar language should cover only deductibles and not coinsurance. [00:13:03] Speaker 04: That is a reasonable reading, as we contend is the VA's reading, as perhaps is the petitioner's reading. [00:13:10] Speaker 04: The problem is that in MnDemis, they had to prove that it was clearly and indisputably invalid as to both coinsurance and deductibles. [00:13:17] Speaker 04: And so even accepting Your Honor's reading of the statute, the Veterans Court erred in throwing out the entire regulation as it pertained to deductibles as well. [00:13:28] Speaker 04: And as Judge Falvey noted in dissent, even if the court did not believe that VA's regulation would survive a 502 arbitrary and capricious challenge, that does not mean it is clearly and indisputably invalid so as to justify mandamus. [00:13:42] Speaker 04: The court simply needed to wait for Ms. [00:13:43] Speaker 04: Wolf to obtain a decision or some other veteran to obtain a decision. [00:13:47] Speaker 01: Can I ask you something? [00:13:48] Speaker 01: You say clearly and indisputably invalid. [00:13:51] Speaker 01: Is it more clearly and indisputably that the agency's interpretation is unreasonable? [00:13:56] Speaker 01: Is that the inquiry? [00:13:57] Speaker 01: Because it's under Chevron step two, right? [00:14:00] Speaker 04: Sure, yes. [00:14:01] Speaker 04: It could be, yes. [00:14:02] Speaker 04: But the standard is higher, right? [00:14:04] Speaker 04: It has to be clear and indisputable, not just simply is it unreasonable in the courts of law. [00:14:08] Speaker 01: It's clearly and indisputably unreasonable. [00:14:11] Speaker 04: Invalid for unreasonable, sure, Your Honor. [00:14:13] Speaker 03: But then just a step two Chevron question. [00:14:17] Speaker 03: There's an argument that this can be resolved at step one of Chevron as a construction of the statute itself, right? [00:14:22] Speaker 03: That's true. [00:14:23] Speaker 04: And we did not ask for deference to the agency's interpretation [00:14:27] Speaker 04: this case, we don't believe it. [00:14:28] Speaker 01: But that is how the court below interpreted it, right? [00:14:31] Speaker 01: I read the court, the Veterans Court's decision, as saying, we're going to assume, we're going to move to Chevron step two. [00:14:39] Speaker 01: And that's how it was evaluated. [00:14:40] Speaker 04: It did. [00:14:41] Speaker 04: I mean, the court did not linger long on the language of the statute. [00:14:44] Speaker 04: It jumped sort of directly to what it viewed was wrong with the regulation and assumed ambiguity. [00:14:51] Speaker 04: And as we know it, it did not really address [00:14:53] Speaker 04: in depth, the similar payment language. [00:14:56] Speaker 04: It also did not at all address the other parts of 1725 that give VA the responsibility for determining the criteria for eligibility and limiting the amount of payment. [00:15:08] Speaker 04: So you're right, Your Honor. [00:15:10] Speaker 04: We are not making a Chevron Step 2 argument at this point. [00:15:14] Speaker 04: But on Chevron Step 1, our position is there are various reasonable readings of the statutory language. [00:15:20] Speaker 04: It's clearly not defined in the statute. [00:15:23] Speaker 04: And in that circumstance, there is no clear and indisputable proof that the regulation needs to be invalidated. [00:15:29] Speaker 04: I see I'm over my time. [00:15:32] Speaker 03: I'll give you two minutes for remote. [00:15:35] Speaker 03: Mr. Griffin. [00:15:54] Speaker 00: May it please the court, Sean Griffin, for the petitioner appellees. [00:16:04] Speaker 00: Your Honor, I'd like to start. [00:16:05] Speaker 03: So you say on page 10 of your brief, referring to the Stout case, you say that holding has been binding on the VA from the date of the decision. [00:16:14] Speaker 03: That is simply not correct. [00:16:16] Speaker 03: There is no affirmative collateral estoppel against the government under the Supreme Court's decision in Mendoza. [00:16:23] Speaker 03: The Staub case is not binding on the government in any case other than Staub, right? [00:16:30] Speaker 00: I believe that in the Veterans Court it is binding as a presidential decision. [00:16:34] Speaker 00: I concur with what you're saying that it is not a Staubel and it's not binding in this court. [00:16:42] Speaker 03: Okay, and the Veterans Court order seems to tell the government that they have to comply with Staub right away, that they have no ability to appeal that or challenge it in this individual case. [00:16:57] Speaker 03: I mean, surely they do have the right. [00:16:59] Speaker 03: Even though they decided not to appeal in Staub, they can appeal in this case from a decision of the Veterans Court saying that this statute excludes [00:17:10] Speaker 03: deductibles and co-insurance and get a decision from us, right? [00:17:16] Speaker 00: I agree that this appeal is properly before the court, and I agree that the government has the right to try and argue that the new regulation, the interim rule, is valid. [00:17:29] Speaker 00: However, there is a relationship [00:17:31] Speaker 00: between that interim rule and STAB that I think was important and was motivating the court below? [00:17:37] Speaker 03: Well, maybe so. [00:17:39] Speaker 03: But even so, I mean, even if it were a direct decision, if STAB would have been a direct decision about the regulations that it was invalid, the government doesn't have to accept that. [00:17:48] Speaker 03: They can litigate in another case whether that's a correct decision. [00:17:53] Speaker 03: And the problem with the mandamus here is it seems to bar the government from doing that. [00:17:58] Speaker 03: How can that be appropriate? [00:17:59] Speaker 00: I disagree, Your Honor, because of what Staub ordered. [00:18:02] Speaker 00: What Staub ordered was that the rule that the VA was using to deny claims was invalid as a matter of law, and it struck it down. [00:18:11] Speaker 00: It held it unlawful and set it aside in the language of the statute, just like the APA. [00:18:15] Speaker 00: Then they did an appeal. [00:18:16] Speaker 00: Once they abandoned their appeal, [00:18:19] Speaker 03: that regulation is dead they're very quiet i don't understand why that's true i mean it that that was an individual case uh... uh... and yes they're bound in the individual case but i i i i failed to see how it can be that the government is bound in a subsequent case if it chooses to relitigate the issue but if the rule itself is has been struck down if it's been held unlawful and set aside as is proper under seventy two sixty one [00:18:48] Speaker 00: The regulation is no longer law. [00:18:52] Speaker 00: The regulation is no longer available to provide a rule of decision in any case. [00:18:57] Speaker 00: I think that's not correct. [00:18:59] Speaker 03: I think that the government has the right to re-litigate any question in a subsequent case as long as there's an ability to appeal to this court. [00:19:11] Speaker 00: i think you're right believe that when they failed to appeal stop i i would i would draw an analogy to you any p challenge in uh... a regular district court if a district court strikes down a rule that wasn't a p l yes but the power under seventy two sixty one to hold a lawful and set aside was modeled after the a p a needs [00:19:33] Speaker 03: I understand your position. [00:19:34] Speaker 00: Why don't you move on? [00:19:36] Speaker 00: Sure. [00:19:37] Speaker 00: I'd like to talk about clearly and indisputable to pivot off of what the government was saying a second ago. [00:19:47] Speaker 00: Our position, and I believe the Supreme Court's position in Mallard v. District Court, is that clear and indisputable is judged after the court has determined what the law is. [00:19:58] Speaker 00: So for this court to decide whether or not there is a clear and indisputable right to the writ, which is the phrase, they first have to decide what the underlying law is. [00:20:10] Speaker 00: In Mallard, the court actually used mandamus to resolve a circuit split. [00:20:14] Speaker 00: There was an active circuit split as to whether or not a district court could compel an attorney to perform as pro bono counsel. [00:20:24] Speaker 00: The question was clearly unresolved. [00:20:26] Speaker 00: the Supreme Court resolved it, and then they said that the attorney had a clear and indisputable right as we decide the law today. [00:20:33] Speaker 00: And so what that teaches is that a clear and indisputable really just does turn on the merits, which I will also notice how the government framed its opening brief. [00:20:42] Speaker 03: But the merits are not all that clear, right? [00:20:44] Speaker 00: Well, I think, Your Honor, it is fairly clear. [00:20:48] Speaker 00: 1725C4A is the command. [00:20:52] Speaker 03: When Congress passed the... They're limiting similar payment to copayment. [00:20:58] Speaker 03: You're saying it doesn't cover anything else. [00:20:59] Speaker 03: Why would the language of the statute say copayment or similar payment if it didn't include more than copayments? [00:21:08] Speaker 00: I think there is one meaning that everyone agreed below that the phrase more similar payments has, which is to cover copayments by another name. [00:21:18] Speaker 00: So if a health insurer, instead of using the term co-payments on its explanation of benefits, says visit fee. [00:21:25] Speaker 00: that would be a similar payment that would not be reimbursable under C4D. [00:21:32] Speaker 03: Is there any indication of legislative history that was concerned about what was meant by copayments? [00:21:37] Speaker 00: I believe the only relevant legislative history is the one that you cited earlier today. [00:21:42] Speaker 03: Which the VA said it covers copayments in a document. [00:21:46] Speaker 00: But I'm not sure that the VA's position is controlling. [00:21:50] Speaker 03: I think that that is... No, no, it's not controlling, but it surely bears on [00:21:54] Speaker 03: what Congress meant by the language. [00:21:57] Speaker 00: Yes. [00:21:58] Speaker 00: The one thing that that shows beyond question is that the current rule is not a valid application of C4D because it covers all three things. [00:22:07] Speaker 00: By covering all three things, they covered the waterfront and there is no reimbursement under C4A and this is a very clear point. [00:22:16] Speaker 00: The record has no evidence in it. [00:22:18] Speaker 00: There's no example [00:22:20] Speaker 00: of any payment ever being made under C4A in the nine years it was on the books before the writ. [00:22:29] Speaker 00: Between the ban that was struck down in Staub and the interim rule and the stay in between to make sure that no claims got processed in the gap, the VA successfully avoided making any payments under C4A [00:22:42] Speaker 01: Do you agree that the interpretation that Judge Dyke referred to earlier where the exclusion would include co-payments and deductibles but not co-insurance is reasonable? [00:22:54] Speaker 00: I don't, Your Honor, because deductibles are such an important part in such a large part of veterans liability when we're dealing with partially covered services. [00:23:11] Speaker 00: Co-payments are fixed and small. [00:23:14] Speaker 01: Are deductibles fixed? [00:23:16] Speaker 00: Sort of. [00:23:18] Speaker 00: They're a fixed amount, but they vary over time. [00:23:21] Speaker 00: So if you have an emergency event in January, your deductible is probably not yet exhausted, and you're going to be on the hook for the full thing. [00:23:29] Speaker 00: The same veteran happens to have an emergency in December, the deductible is probably gone, and it's all coinsurance. [00:23:37] Speaker 00: So there's sort of a symbiotic give and take between co-insurance and deductibles? [00:23:40] Speaker 01: Well, presumably that deductible is going to be paid at some point, whether it's through dentist visits, regular doctor visits, or what have you. [00:23:48] Speaker 01: It would have to be paid at some point, whether it's in January or December, right? [00:23:52] Speaker 01: So if it's paid because of an emergency surgery in January, later on when other regular team doctor visits occur, that deductible won't have to be paid because it would be paid already, right? [00:24:03] Speaker 00: That's true, but payments in the regular course and the regular seeking of healthcare, going to the dentist, getting an annual physical, are both scheduled and under the veteran's control. [00:24:14] Speaker 00: uh... deductible for an emergency care is quite different because it comes out of nowhere no one plans on going to the e r no one plans on a heart attack those are policy arguments which you know if you're not relating that to the legislative history or the language of the statute that's the problem well i i mean the question was whether or not the interpretation that [00:24:36] Speaker 03: Well, reasonable doesn't mean reasonable as a policy matter. [00:24:38] Speaker 03: Reasonable means reasonable in terms of the language and legislative history and construction of the statute. [00:24:45] Speaker 03: Is it a reasonable construction of the statute? [00:24:50] Speaker 00: Again, I think the effect of the construction has to be taken into effect. [00:24:56] Speaker 00: I do think that the rules of statutory interpretation for a statute like 1725 are slightly different. [00:25:03] Speaker 00: because of the pro veteran canon and the Supreme Court's decision in Henderson v. Shinseki that we have to look at this in a way that's going to protect the veteran and exposing them to deductibles on an emergency basis is not, I think, consistent with that approach. [00:25:23] Speaker 01: May I ask you about alternative avenues for relief? [00:25:27] Speaker 01: Could Ms. [00:25:27] Speaker 01: Wolf, do you agree that Ms. [00:25:28] Speaker 01: Wolf could have challenged the regulation in a 502 action before this court? [00:25:32] Speaker 00: Why not? [00:25:33] Speaker 00: No, Your Honor. [00:25:34] Speaker 00: As a factual matter, [00:25:36] Speaker 00: In 2018, the statute of limitations was imposed by this court through a local rule and was limited to 60 days. [00:25:43] Speaker 00: That wasn't struck down until December of last year. [00:25:45] Speaker 00: Right now, that's the law. [00:25:48] Speaker 00: She can still file, right? [00:25:50] Speaker 00: So can now? [00:25:51] Speaker 00: Yes, I agree with that. [00:25:53] Speaker 00: Could then? [00:25:53] Speaker 00: No, I don't agree with that. [00:25:55] Speaker 00: Because this interim final rule was published in January with immediate effect. [00:26:01] Speaker 00: The 60-day clock was ticking from the moment it hit the federal register. [00:26:05] Speaker 00: And there was no practical way for Ms. [00:26:08] Speaker 00: Wolfe to figure out that her denial was even based on the IFR before the 60 days had run. [00:26:15] Speaker 01: In your view, is that you have to view the alternative avenue for leave and the availability of it as at the time of the filing of the petition for writ of mandamus? [00:26:23] Speaker 00: I think it's a consideration, Your Honor. [00:26:25] Speaker 00: I think the adequacy, though, is also relevant. [00:26:31] Speaker 00: and 502 or the board, neither of them can provide class protection. [00:26:38] Speaker 00: One of the most important parts of a class action is the fact that it tolls things as the date it's filed. [00:26:44] Speaker 00: That's American pipe in the Supreme Court's cases about class action tolling. [00:26:51] Speaker 00: When the IFR came out, all claims had been stayed for two years. [00:26:55] Speaker 00: Nothing had happened since STAB. [00:26:57] Speaker 00: And then the VA immediately turned the engine back on and started pushing claims through as quickly as they could. [00:27:04] Speaker 00: That created a situation in which veterans, Ms. [00:27:09] Speaker 00: Wolf, and everyone were being harmed. [00:27:13] Speaker 00: They believed that they were being harmed by an interim rule, but they couldn't challenge under 502 anymore because they had missed the opportunity based on the way the interim rule was published. [00:27:22] Speaker 03: Why isn't raising the validity of the regulation in her individual case a remedy that's available to her? [00:27:30] Speaker 00: Well, she did that in her individual case without waiting for a board decision. [00:27:35] Speaker 00: If she had to wait for a board decision, then it wouldn't be until five years, and there wouldn't be class action tolling. [00:27:43] Speaker 00: And all of the veterans whose claims had become final in that interim would either be harmed or would be forced to rely on equitable tolling. [00:27:52] Speaker 00: And so that is part of the adequacy of the relief and why if class actions and Monk V. Shulkin are going to be meaningful, they have to be available in situations, extraordinary ones, not all situations, but extraordinary ones where there is mass harm being perpetrated against veterans in the form of a rule that we don't think was validly promulgated. [00:28:19] Speaker 03: You seem to be arguing now that mandamus is available because it would take her five years to get a board decision. [00:28:28] Speaker 03: Did you argue that in your brief in this case? [00:28:31] Speaker 00: Yes, Your Honor. [00:28:32] Speaker 00: We definitely raised unreasonable delay as one of the reasons to talk about mandamus in our brief. [00:28:41] Speaker 00: We mentioned several others, though. [00:28:43] Speaker 03: So mandamus would be available to force the board to render a decision, but you never asked for that. [00:28:49] Speaker 00: That's also an important question, because we disagree with the government's position about prospective jurisdiction. [00:28:55] Speaker 00: In our view, once prospective jurisdictions exist, the first preliminary step, which in this case is clearly met by an NOD, then the court has power. [00:29:06] Speaker 00: And the question of whether mandamus is appropriate isn't a jurisdictional one. [00:29:10] Speaker 00: It's one of the chainy factors. [00:29:12] Speaker 00: And this court's case is like, [00:29:14] Speaker 00: in-rate Google or in-rate Cray. [00:29:17] Speaker 00: And the law professor's brief does a good job of laying that out. [00:29:21] Speaker 00: The government responds, no, even where prospective jurisdiction exists, the only valid exercise is to clear an obstacle to review. [00:29:29] Speaker 00: They would limit it to delay or failure to act. [00:29:32] Speaker 00: And we think that's wrong. [00:29:33] Speaker 00: And I think the Supreme Court said that's wrong in Le Baye. [00:29:37] Speaker 00: In the Supreme Court decision in Le Baye, the party opposing mandamus had specifically said, [00:29:43] Speaker 00: that mandamus must be reserved for cases where review would be frustrated. [00:29:48] Speaker 00: And the Supreme Court said no. [00:29:50] Speaker 00: They said, so long as the Court of Appeals would have jurisdiction in these antitrust cases at some point, at some stage, mandamus is appropriate under appropriate circumstances. [00:30:00] Speaker 00: And they went to the traditional factors from there and found that the question was sufficiently important to address it on an interlocutory basis. [00:30:10] Speaker 03: So you're saying mandamus is available anytime there's an important issue? [00:30:16] Speaker 00: Not anytime there's an important issue, but this court's cases do say, and the Supreme Court's... When is it appropriate? [00:30:23] Speaker 03: I mean, if the importance is the task, when is it appropriate? [00:30:28] Speaker 00: A basic and undecided question of law that is going to affect innumerable cases [00:30:35] Speaker 03: Any time that that's the case. [00:30:38] Speaker 00: Is one of the traditional bases for mandamus. [00:30:41] Speaker 00: That's this court's decision in Ray Cray. [00:30:44] Speaker 00: That's the Supreme Court's decision in Schlagenhoff. [00:30:48] Speaker 00: That is one of the permissible uses of mandamus. [00:30:54] Speaker 03: Even if there's another remedy. [00:30:57] Speaker 00: Well, in Levi, there was another remedy. [00:31:03] Speaker 00: The issue in Le Baye was whether or not the trial was appropriately set before a special master. [00:31:08] Speaker 03: I actually don't think that's the case because if you went through the physical examination you would lose... I believe that's Schlagenhoff. [00:31:20] Speaker 03: Yes, that's Schlagenhoff. [00:31:23] Speaker 03: Under those circumstances, going through the physical examination would itself be an injury, which couldn't be addressed after finals. [00:31:30] Speaker 00: I agree. [00:31:31] Speaker 00: I was referring to the Supreme Court's decision in Levi, which involved a decision by the district court to refer the case, actually two cases, to a special master for trial. [00:31:42] Speaker 00: And in that case, the parties could have gone through trial, objected to it, [00:31:47] Speaker 00: And if the court found that the special master was without power to try it, they would have made it to the trial. [00:31:53] Speaker 03: The theory there was beyond the court's authority to do that, right? [00:31:59] Speaker 00: Well, it was an improper use of Rule 53 was the theory there. [00:32:04] Speaker 00: But that is remediable on appeal from final judgment. [00:32:07] Speaker 00: The same way improper venue cases are sometimes, and here I'm distinguishing [00:32:15] Speaker 00: not transfer cases, but improper venue cases. [00:32:19] Speaker 00: You can appeal that from final judgment. [00:32:20] Speaker 00: And this court has, with some regularity, Inray-Cray and Inray-ZTE are both examples. [00:32:27] Speaker 00: They have allowed those issues, clear and undecided issues, to be resolved through mandamus. [00:32:38] Speaker 03: Yeah, I'm over time. [00:32:41] Speaker 03: Okay. [00:32:41] Speaker 03: Thank you, Mr. Griffin. [00:32:43] Speaker 03: Mr. Preston, I'll give you a couple of minutes. [00:32:57] Speaker 04: Thank you, Your Honors. [00:32:58] Speaker 04: I'd like to make just a few points in response to the other side's argument. [00:33:02] Speaker 04: The first is with respect to unreasonable delay. [00:33:05] Speaker 04: Ms. [00:33:05] Speaker 04: Wolf did not claim unreasonable delay in her case, nor could she. [00:33:09] Speaker 04: She had filed her NOD to challenge the regional office decision only three months before she sought mandamus. [00:33:16] Speaker 04: So she was not being unreasonably delayed by the VA. [00:33:20] Speaker 04: What she's trying to do is rely on it. [00:33:22] Speaker 01: What if it's perspective unreasonable delay? [00:33:24] Speaker 01: Based on history and statistics, I expect there's going to be an unreasonable delay. [00:33:30] Speaker 01: Could that be? [00:33:30] Speaker 04: No, Your Honor. [00:33:31] Speaker 04: This Court has already said in a footnote in Martin that even in cases of unreasonable delay, you have to prove it on an individual case basis. [00:33:38] Speaker 04: You cannot rely on averages because that's speculative. [00:33:42] Speaker 04: And mandamus cannot be based on speculative or anticipated obstruction. [00:33:47] Speaker 04: It has to be proven obstruction. [00:33:49] Speaker 04: So that's the response on the unreasonable delay piece. [00:33:54] Speaker 04: My opposing counsel touched on what I think one of the issues underlying this case is the tension between the Veterans Court's power to aggregate claims in a class action and the statutory requirements that obtain in any case. [00:34:10] Speaker 04: For decades, this court and the Veterans Court have recognized that 7252A imposes a decision requirement before the Veterans Court [00:34:18] Speaker 04: can exercise jurisdiction over most issues, unreasonable delay being an exception. [00:34:23] Speaker 04: But since Monk, we've seen certain judges on the Veterans Court decide that 7252 is, in fact, not jurisdictional, and it can be waived. [00:34:32] Speaker 04: This court is going to see this is just the first in a series of cases that are resulting from the court's attempt to use its class action powers [00:34:41] Speaker 04: to overcome the limits of its jurisdiction as set forth in Title 38 by doing things like certifying classes here with claimants with final unappealable claims. [00:34:50] Speaker 04: or in a case that the court's going to hear soon, SCAR, capturing claimants who never even yet filed claims, so-called future future. [00:34:59] Speaker 04: So there is an underlying tension here. [00:35:01] Speaker 04: How does the court fit its class powers in with statutory requirements? [00:35:05] Speaker 04: And as we note in our brief, the Rules Enabling Act requires that the court not use its power to aggregate claims, to overstep the bounds of its jurisdiction, or to ignore statutory requirements. [00:35:18] Speaker 04: And finally, [00:35:20] Speaker 04: On the question of prospective jurisdiction, it is true that in-rate tenants says if you have started the process, you are potentially within the jurisdiction of a court. [00:35:30] Speaker 04: But the All Writs Act requires the writ to be in aid of the court's actual exercise of jurisdiction. [00:35:36] Speaker 04: That doesn't mean it's necessarily going to get through the case. [00:35:39] Speaker 04: But the writ has to do something to make it more likely that it will do so. [00:35:43] Speaker 04: Here, Ms. [00:35:44] Speaker 04: Woolf's claim disproves that fact here. [00:35:46] Speaker 04: Because of the writ, the VA granted her claim. [00:35:50] Speaker 04: She had no need to go to the Veterans Court. [00:35:52] Speaker 04: So as Judge Falvey correctly noted, the writ here thwarted the court's exercise of jurisdiction. [00:35:57] Speaker 04: It didn't aid it. [00:35:59] Speaker 03: OK. [00:35:59] Speaker 03: Thank you. [00:35:59] Speaker 04: Thank both counsel. [00:36:00] Speaker 04: The case is submitted.