AMANDA JANE WOLFE, PETER BOERSCHINGER, Claimants-Appellees v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant
2020-1958
United States Court of Appeals for the Federal Circuit
March 17, 2022
Appeal from the United States Court of Appeals for Veterans Claims in No. 18-6091, Judge Joseph L. Falvey, Jr., Judge Michael P. Allen, Judge William S. Greenberg.
ERIC P. BRUSKIN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.;
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for amici curiae The American Legion, Disabled American Veterans, Paralyzed Veterans of America, Veterans of Foreign Wars. Also represented by BENJAMIN PAUL CHAGNON; ELIZABETH MOULTON, Menlo Park, CA.
JILLIAN BERNER, Veterans Legal Support Center and Clinic, School of Law, University of Illinois Chicago, Chicago, IL, for amicus curiae National Law School Veterans Clinic Consortium.
MICHAEL B. MILLER, Morrison & Foerster LLP, New York, NY, for amici curiae Erwin Chemerinsky, Heather Elliott, Richard D. Freer, Paul Ryan Gugliuzza, Helen Hershkoff, Andrew Stuart Pollis, Cassandra Burke Robertson, Adam Steinman, Howard M. Wasserman, Adam Zimmerman.
Before DYK, REYNA, and STOLL, Circuit Judges.
DYK, Circuit Judge.
This case involves the scope of the Department of Veterans Affairs’ (“VA‘s“) reimbursement of the cost of hospital visits to veterans enrolled in the VA health care system. The statute bars reimbursement for “any copayment or similar payment.”
The Secretary of the VA (“Secretary“) appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court“) granting a petition for a writ of mandamus (1) invalidating a VA regulation prohibiting the
Because deductibles are excluded from reimbursement under the correct interpretation of the statute and other adequate remedies were available with respect to coinsurance, mandamus was inappropriate. We reverse.
BACKGROUND
I
The VA provides health care to nine million enrolled veterans through its Veterans Health Administration, the largest health care system in the country. Veterans Health Administration, U.S. Dep‘t of Veterans Affs., https://www.va.gov/health (last visited Feb. 22, 2022). Enrollment in the VA health care system is determined by statute. See
Simple on its face, the implementation of this approach was complex. Before 1999, the VA had limited authority to pay for private, non-VA emergency care for veterans. In general, it could only reimburse for emergency treatment relating to a service-connected condition or disability.
Section 1725 as originally enacted directed the VA to reimburse veterans enrolled in the VA healthcare system for “the reasonable value of emergency treatment furnished the veteran in a non-[VA] facility” if they, among other conditions, (1) had “no entitlement to care or services under a health-plan contract” (“the contract provision“) and (2) had “no other contractual or legal recourse against a third party that would, in whole or in part, extinguish” liability to the provider (“the third-party provision“).
Under the provisions of the 1999 legislation, veterans with even minimal health insurance coverage, such as through a state-mandated automobile insurance policy, might wind up responsible for essentially the full cost of emergency treatment. H.R. Rep. No. 111-55, at 2–3 (2009). Congress addressed this problem in 2010 by revising
The statute does not define “copayment” or “similar payment,”
- A copayment is a “fixed amount that a patient pays to a healthcare provider according to the terms of the patient‘s health plan.”
- A deductible is “the portion of the loss to be borne by the insured before the insurer becomes liable for payment.” Deductible, Black‘s Law Dictionary (11th ed. 2019).
- “Coinsurance” is “health insurance in which the insured is required to pay a fixed percentage of the cost of medical expenses after the deductible has been paid and the insurer pays the remaining expenses.” Coinsurance, Merriam-Webster, https://www.merriam-webster.com/dictionary/coinsurance (last visited Feb. 4, 2022).
After Congress passed the ECFA in 2010, the VA revised its regulations, differentiating between situations involving third-party liability and those involving health plan contracts despite the seeming overlap between the two. It struck “or in part” from the regulation corresponding to the third-party provision,
II
In Staab v. McDonald, 28 Vet. App. 50 (2016), the Veterans Court considered the statute, as amended in 2010 by the ECFA, and the 2012 regulations. There, a veteran incurred emergency expenses at a non-VA hospital and sought reimbursement for the portion not covered by Medicare. Id. at 52. The Board of Veterans’ Appeals (“Board“) denied his claim as a matter of law under the contract regulation because Medicare covered some, but not all, of the veteran‘s costs. Id. The Veterans Court reversed the Board‘s determination, concluding that the regulation was invalid. Id. at 56. The Veterans Court did not explain the cost-sharing mechanisms involved. Id. at 52–53. But in interpreting the language and legislative history of the ECFA, the Veterans Court found that “Congress intended that veterans be reimbursed [aside from copayments] for the portion of their emergency medical costs that is not covered by a third party insurer and for which they are otherwise personally liable.” Id. at 55. The Secretary appealed Staab to this court but voluntarily withdrew the appeal. J.A. 7.
Following Staab, the VA revised the contract regulation to allow reimbursement when a veteran “does not have coverage under a health-plan contract that would fully extinguish the medical liability for the emergency treatment.”
In September 2016, Amanda Wolfe, who was enrolled in VA health care, obtained emergency treatment at a non-VA health care facility, incurring expenses of $22,348.25. Her employer-sponsored healthcare contract covered most of the expenses, but she was responsible for a copayment of $202.93 and coinsurance of $2,354.41. The VA denied reimbursement of these expenses in February 2018 because “patient responsibility (deductible, coinsurance, co-payment) [is] not covered.” J.A. 199. In July 2018, Ms. Wolfe filed a Notice of Disagreement (“NOD“), a predicate to an appeal to the Board of Veterans’ Appeals. In October 2018, rather than await the outcome of her appeal, Ms. Wolfe filed a mandamus petition at the Veterans Court seeking class relief invalidating the similar payments regulation and ordering “the Secretary to reimburse veterans for coinsurance and deductibles . . . incurred by veterans in seeking emergency medical treatment at a non-VA hospital[] and . . . not covered by the veteran‘s health insurance carrier.” J.A. 54. While it appears that Ms. Wolfe did not herself have an issue as to deductibles, she pursued a ruling as to deductibles on behalf of the class.
In September 2019, a three-judge panel of the Veterans Court certified Ms. Wolfe‘s requested class and granted her petition. On the merits, a majority of the panel determined (1) that the similar payments regulation was inconsistent with the Staab decision‘s interpretation of
The Secretary appeals. We have jurisdiction under
DISCUSSION
In reviewing decisions from the Veterans Court, this court “shall . . . decide all relevant questions of law, including interpreting constitutional and statutory provisions” but “may not review [] a challenge to a factual determination, or [] a challenge to a law or regulation as applied to the facts of a particular case.”
The All Writs Act authorizes “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions.”
I
We first consider whether, under the correct interpretation of
It is a “fundamental canon of statutory construction” that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning[] . . . at the time Congress enacted the statute.” Perrin v. United States, 444 U.S. 37, 42 (1979). The presumption against surplusage additionally provides that a “statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (citing 2A Norman J. Singer, Statutes and Statutory Construction § 46.06, at 181–86 (rev. 6th ed. 2000)).
To resolve this issue, we first need to address the effect of the deletion of the “or in part” language from the third-party provision, given the significance that Ms. Wolfe attributes to that statutory amendment. As noted earlier, before the enactment of the ECFA in 2010, the statute
But that does not resolve the question whether deductibles and coinsurance are “similar payments” to copayments. We agree with the government that “similar payments” necessarily means that some payments that are not copayments are “similar payments.” The arguments by the Veterans Court and Ms. Wolfe that “similar payments” was simply meant to include copayments when the provider used different language to describe them are untenable. See, e.g., Rousey v. Jacoway, 544 U.S. 320, 324, 329 (2005) (holding that “[t]o be ‘similar,’ an IRA must be like, though not identical to, the specific plans or contracts listed in [the statute], and consequently must share characteristics common to the listed plans or contracts” under a Bankruptcy Code provision allowing debtors to exempt “a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of . . . age” from estate).
But equally untenable is the government‘s argument that both deductibles and coinsurance are “similar
The Secretary, citing to the ACA, also argues that the similar payments regulation is a reasonable reflection of “the common understanding of which health plan expenses are ‘similar’ to copayments.” VA Br. at 46. The ACA defines “cost-sharing” to include “deductibles, coinsurance, copayments, or similar charges” as well as “any other expenditure required of an insured individual which is [paid
Having considered the interpretations offered by the Veterans Court and advanced by the parties, we conclude that the correct reading of the statute is one in which a deductible is a “similar payment” to a copayment, but coinsurance is not. Rather, coinsurance is the very type of partial coverage that Congress did not wish to exclude from reimbursement. This interpretation gives meaning to all terms and provisions in the statute and is also consistent with the plain meaning of the terms: copayments and deductibles are fixed quantities which become known once insurance is purchased, while coinsurance is a variable quantity that becomes known only after medical expenses are incurred and is quintessentially partial coverage. The Veterans Court and Ms. Wolfe urge that deductibles are similar to coinsurance for veterans who have health insurance plans with high deductibles, but there is no indication that Congress wished to distinguish high deductible plans from other plans (with lower deductibles) when determining the categories of payments excluded from reimbursement.
The legislative history, though sparse, also supports a reading that deductibles were intentionally excluded from reimbursement as a “similar payment,” but coinsurance was not. When the amendment to
Under the correct construction of the statute, there is a “clear and indisputable” right to relief with respect to
II
It is well established that mandamus is unavailable when there is an adequate remedy by appeal. In Bankers Life, the petitioner sought a writ of mandamus to vacate and set aside a district court‘s order of severance and transfer on the ground of improper venue, contending that mandamus was appropriate in part because the interlocutory order could be reviewed on appeal from final judgment in the case only after “needless expense, hardship and judicial inconvenience.” 346 U.S. at 381–82. The Supreme Court rejected this argument, explaining that “the extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial, and whatever may be done without the writ may not be done with it.” Id. at 383 (citing Ex parte Fahey, 332 U.S. 258, 259–60 (1947); U.S. Alkali Export Ass‘n v. United States, 325 U.S. 196, 202–03 (1945); Roche v. Evaporated Milk Ass‘n, 319 U.S. 21, 31 (1943); Ex parte Rowland, 104 U.S. 604, 617 (1882)). It further explained that mandamus “should be resorted to only where appeal is a clearly inadequate remedy.” Id. at 384–85 (quoting Fahey, 332 U.S. at 259–60). Our court has applied Bankers Life in affirming the Veterans Court‘s denial of a mandamus petition in the context of a benefits decision. See Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002); see also Beasley, 709 F.3d at 1159 (cautioning against “widespread use of the writ of mandamus as a substitute for the ordinary appeals process mandated by Congress“).
Ms. Wolfe notes the Veterans Court‘s finding that the administrative appeals process would have been “futile because the Board doesn‘t have jurisdiction to invalidate the regulation.” J.A. 34. We rejected this reasoning in Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998). The fact that the Board could not address the issue does not mean that the appeals process is futile. In considering an individual case, the Veterans Court and this court can consider a
Ms. Wolfe next contends that mandamus is available to ensure compliance with the Veterans Court‘s earlier decision in Staab. The Veterans Court majority characterized Staab as “the definitive and authoritative interpretation of section 1725,” J.A. 7, and Ms. Wolfe argues that the VA‘s departure from Staab constitutes “extraordinary misconduct” because Staab is “binding on the VA,” Wolfe Br. at 26, 10. There is no basis for these allegations, and both the Veterans Court majority and Ms. Wolfe misunderstand the situation. Mandamus might be appropriate to ensure compliance with the judgment in an individual case, see Clinton v. Goldsmith, 526 U.S. 529, 536 (1999), but mandamus is not available to enforce the principle of stare decisis. Staab did not afford equitable relief barring enforcement of the regulations and constitutes simply an unreviewed decision of the Veterans Court that is not binding on this court or on the government outside of that individual case except as a matter of stare decisis at the Veterans-Court level of review.6 Moreover, Staab
Ms. Wolfe next argues that mandamus is available in aid of the Veterans Court‘s prospective jurisdiction because the VA, through supposed misrepresentations in various communications, has deterred individuals from pursuing their benefits claims and appeals. The Veterans Court similarly found that the VA‘s communications regarding entitlements under the similar payments regulation as well as the regulation itself create “a chilling effect” on would-be claimants. J.A. 17. The answer to this again is twofold. First, this cannot justify mandamus with respect to Ms. Wolfe herself; she was not deterred and filed an appeal with the VA.
Second, as to veterans who never filed claims, even assuming Ms. Wolfe could serve as the class representative, mandamus does not aid prospective jurisdiction where a party has not initiated any proceeding whatsoever. See In re Tennant, 359 F.3d 523, 530 (D.C. Cir. 2004) (mandamus unavailable where petitioner never initiated a proceeding with the agency because “a proceeding of some kind” that “might lead to an appeal” is a preliminary requirement to consider writ); Mylan Labs. Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375, 1380 (Fed. Cir. 2021) (court has prospective jurisdiction only after petition filed with agency); see also FTC v. Dean Foods Co., 384 U.S. 597, 599 (1966) (mandamus available because FTC initiated a proceeding); see generally 33 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 8313 (2d ed.). We have no occasion to determine what forms of equitable
Ms. Wolfe additionally argues that “mandamus is proper to avoid delay in resolving important issues.” Wolfe Br. at 62 (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964); In re Google LLC, 949 F.3d 1338, 1341–42 (Fed. Cir. 2020)). But the cases she relies on involved situations where appeal was not an adequate remedy or where a special need arose due to conflicting district court decisions on a recurring issue, circumstances that are absent here.7
Ms. Wolfe finally argues that the writ was necessary to correct a clear abuse of discretion under La Buy v. Howes Leather Co., 352 U.S. 249, 257–58 (1957).8 Reprising her
Because we conclude that mandamus was inappropriate, we need not and do not reach the issue of class certification.
CONCLUSION
Mandamus was not available in this case because the petitioner did not have a clear and indisputable right with respect to deductibles and had other adequate legal remedies by appeal. We reverse the Veterans Court‘s grant of the petition for a writ of mandamus.
REVERSED
COSTS
No costs.