Redwood: Class Certification and A Writ Denied

Redwood v. McDonough, Case Number 23-3260, decided December 6, 2023 concerned VA reimbursement of veterans for the costs of emergency medical care at non-VA facilities when the veteran has other health insurance coverage.

This case builds on Wolfe I and Wolfe II.  Wolfe II found a clear right to relief for veterans with respects to coinsurance but not deductibles, but the veteran had other adequate legal remedies so a writ of mandamus was not required.

Wolfe II led to Kimmel, which invalidated the VA’s exclusion of coinsurance reimbursement  and ordered the VA to amend its regulations within 120 days.  The new regulation allowed veteran’s impacted by the clarification of the law to file claims until February 2024 for reimbursement. 

This case involved an attempt at creating a class of veteran’s impacted by Wolfe I.  Essentially, the Court refused the class certification because the new VA regulations provided an avenue for such reimbursement and nothing indicated the proposed class members had exhausted their remedies before the VA. 

However, the case was more nuanced.  The petitioners argued the Wolfe I decision required the VA to readjudicate the claims whereas the regulation requires them to reapply.  Because the VA had not finished their claims (and doesn’t intend to absent an application), the petitioners reasoned the only remedy from the Court was a writ.  However, the Court explained that Wolfe II reversed the right to a writ of mandamus. 

The conclusion is legally defensible, but reiterates the VA’s unwillingness to assist veterans and desire to create as many barriers to rights as possible.  The Court shifted that responsibility to the class attorneys by suggesting that they could simply notify the class members of the ability to reapply, this is an action that a truly veteran friendly VA would undertake itself.  The Court’s willingness to push this action onto legal representatives rather than require of the VA is troubling.

Decision by Judges Greenberg, Allen,and Falvey.

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