Wolfe: The ER expenses Class Action and Motions Practice Before the Court

Wolfe and Boerschinger v. McDonough, Opinion Number 18-6091, was decided May 13, 2021 and involves motion practice before the Court.

Substantively, the case deals with a class action related to veterans who have sought reimbursement for emergency medical expenses incurred in non-VA facilities.  The Court had certified the class and ordered corrective action in a September 2019 decision.  In December 2019 the Secretary filed a motion to stay the effect of the order, which was denied by the Court.  The decision was appealed to the Federal Circuit where it remains pending.

Now, the Secretary has filed a motion to the Court asking that the Secretary be authorized to suspend retroactive readjudications of the finally denied and unappealed class claims pending the outcome of the Federal Circuit appeal.  The Court ruled it did have jurisdiction to address the issue and has the inherent authority to grant the motion.  It then denied the Secretary’s motion.

As to jurisdiction, the Court noted

Because the Secretary has appealed the September 9, 2019, precedential order, it might appear at first glance that we lack jurisdiction to consider the Secretary's Motion. But we do not. The Secretary asks only to suspend his own action on some claims. He in no way asks us to exercise "control over those aspects of the case involved in the appeal" currently pending at the Federal Circuit. Therefore, addressing the Secretary's Motion poses no "danger" that both we and the Federal Circuit "would be simultaneously analyzing the same judgment," which generally is the reason why a filing of a notice of appeal functions as an event of jurisdictional significance.

Id. at *2-3.

The Court then determined it had authority to grant the motion.  It initially determined Rule 8 of the Court rules did not have the Court such authority.  Id. at *6-7. 

As to whether to grant the motion, the Court

looks to the "totality of the circumstances" and pays specific attention to the following factors: (1) The movant's likelihood of success on the merits of the appeal; (2) whether the movant will suffer irreparable harm in the absence of a suspension of action; (3) the impact of a suspension of action on the non-moving party; and (4) the public interest. The movant bears the burden of demonstrating that a suspension of action is warranted.

Id. at *7.  The Court then reviewed the factors an denied the motion.  Id. at *10-13.

Judge Falvey dissented principally focused on his belief that the underlying case was wrongly decided and his belief that new legal principals, even when applied retroactively, do not apply to cases already closed.  Id. at *13.

The Secretary’s motion is indicative of the VA foot dragging and unwillingness to concede when they are wrong.  I am glad the Court refused the motion.

Opinion by Judge Allen and joined by Judge Greenberg with a dissent by Judge Falvey.

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