Wolfe v. McDonough, Opinion Number 18-6091, was decided March 24, 2021 and involves whether the Court should appoint a special master to enforce the Court’s prior order in a class action matter involving non-VA facility emergency medical expenses.
This matter involved certification of a class of veterans whose claims for reimbursement of emergency medical expenses incurred at non-VA facilities was denied in whole or in part on the ground they were part of the deductible or coinsurance for which a veteran was responsible. A September 9, 2019 court order granted certification to the class and appointed class counsel. This led to an appeal to the Federal Circuit and that appeal remains pending.
The Court noted since its order:
While at the time the Court was not
aware of the activities taking place in the wake of our entry of judgment, the
Secretary proceeded with readjudications and provided class counsel with the
status reports we had directed. But the process was not a smooth one, or at
least not one in which the parties could agree that matters were proceeding appropriately
or well. We learned of that reality with the filing of the October 2020 Motion
before us today, the Motion concerning the appointment of a special master. It
suffices to say that class counsel believe that the Secretary is acting too
slowly in terms of readjudications and has provided confusing and inaccurate
status reports, hampering counsels' ability to ensure that VA is complying with
the terms of the September 2019 order.
Id. at *5. Due to the difficulties between the class counsel and the VA, the Court determined it had the authority and should appoint a special master to handle the ongoing dispute. It noted:
we are in a difficult position in
terms of assessing the parties' competing narratives concerning VA's compliance
with our orders. The briefs present different, often starkly different, takes
on the pace of readjudications as well as on the accuracy and utility of the
Secretary's status reports. We attempted to address these issues by designating
a member of the panel to hold a status conference with counsel and, after that,
we directed the parties to work to narrow their dispute. Through no fault of
any party, that process did not succeed either in result or in clarifying the
state of affairs. We conclude that an independent assessment of the factual
underpinnings of the parties' dispute would assist the Court greatly.
Id. at *5. It also concluded by saying:
In sum, we have concluded that a
special master would assist in two principal areas. First, a special master
would assist in providing the Court with information – that is, the special
master would provide an independent assessment of matters related to compliance
with the Court's order. Second, a special master would serve as a facilitator
of sorts. It may be that counsel simply can't work together more effectively
than they have. Sometimes that happens, even when everyone acts in good faith.
But it may be that communication can be improved through the presence of an
independent third party. And if that is the case, it also may be that some of
the issues between the parties can be resolved without formal judicial
intervention.
Id. at *6. The Court then appointed a retired judge from the Court of Appeals for the District of Columbia to serve as special master and tasked him with compiling a report to the Court in 120 days.
This is an astonishing order as it is the next concrete step toward using class actions to fundamentally address VA failings. It shows a willingness of the Court to select a neutral to give it a full opinion and recommendation as to further action. It also suggests that those impacted by Wolfe should be seeing a reimbursement for non-VA emergency care sooner than later.
Opinion by Judge Allen and joined by Judge Greenburg. Judge Falvey wrote a concurring opinion.
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