Beaudette v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: February 27, 2024
• Docket: 22-1264
• Status: Published

Opinion

Case: 22-1264 Document: 81 Page: 1 Filed: 02/27/2024

United States Court of Appeals for the Federal Circuit ______________________

JEREMY BEAUDETTE, MAYA BEAUDETTE, Claimants-Appellees

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant ______________________

2022-1264 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 20-4961, Judge Joseph L. Falvey, Jr, Judge Joseph L. Toth, Judge Michael P. Allen. ______________________

Decided: February 27, 2024 ______________________

IGOR VICTOR TIMOFEYEV, Paul Hastings LLP, Washing- ton, DC, argued for claimants-appellees. Also represented by RENEE A. BURBANK, BARTON FRANK STICHMAN, I, Na- tional Veterans Legal Services Program, Arlington, VA; MICHAEL J. FISHER, Miller Barondess, LLP, Los Angeles, CA.

SOSUN BAE, Commercial Litigation Branch, Civil Divi- sion, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. Case: 22-1264 Document: 81 Page: 2 Filed: 02/27/2024

MCCARTHY; JANE ROTHSTEIN, BRYAN THOMPSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

MORGAN MACISAAC-BYKOWSKI, Veterans Law Insti- tute, Stetson University College of Law, Gulfport, FL, for amicus curiae National Law School Veterans Clinic Con- sortium.

ALEC UMBERTO GHEZZI, Veterans’ Voice of America, Sil- ver Spring, MD, for amicus curiae Vietnam Veterans of America. ______________________

Before MOORE, Chief Judge, DYK and STOLL, Circuit Judges. MOORE, Chief Judge. The Secretary of Veterans Affairs (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 permitting the Board of Veterans’ Ap- peals (Board) to hear appeals of adverse decisions rendered under the Program of Comprehensive Assistance for Fam- ily Caregivers (Caregiver Program). For the following rea- sons, we affirm. BACKGROUND A. History of the Caregiver Program In 2010, Congress established the Caregiver Program to provide assistance to caregivers of seriously injured com- bat veterans. Caregivers and Veterans Omnibus Health Services Act of 2010, Pub. L. No. 111-163, Title I, 124 Stat. 1130, 1132–40 (2010) (codified principally at 38 U.S.C. § 1720G) (Caregiver Act). The Caregiver Program provides family caregivers benefits such as medical care, training, support, counseling, mental health services, and a monthly Case: 22-1264 Document: 81 Page: 3 Filed: 02/27/2024

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stipend. 38 U.S.C. § 1720G(a)(3)(A). To qualify, the vet- eran must require personal care services because of “an in- ability to perform one or more activities of daily living” or a need for supervision, protection, or extensive instruction due to the nature of the injuries. 38 U.S.C. § 1720G(a)(2)(C). An eligible veteran and family caregiver seeking to participate in this program must jointly submit an application to the Secretary. 38 U.S.C. § 1720G(a)(4). After initial approval, the veteran’s and family caregiver’s eligibility are generally reassessed on an annual basis. 38 C.F.R. § 71.30. In 2015, the Department of Veterans Affairs (VA) promulgated a final rule implementing the Caregiver Act. Caregivers Program, 80 Fed. Reg. 1357 (Jan. 9, 2015). The VA explained that all decisions under the Caregiver Act are medical determinations that are not subject to the jurisdic- tion of the Board. Id. at 1366. The VA noted the statute at 38 U.S.C. § 1720G(c)(1), titled “Construction,” states: “A decision by the Secretary under this section affecting the furnishing of assistance or support shall be considered a medical determination.” Id. The VA explained “medical determinations are not subject to the jurisdiction of the Board of Veterans’ Appeals under 38 U.S.C. 7104, or pur- suant to our implementing regulation.” Id. The VA rea- soned that a longstanding regulation restricted the Board’s review of medical determinations. See 38 C.F.R. § 20.101(b) (1992) (“Medical determinations, such as deter- minations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board’s juris- diction.”). Under the VA’s interpretation, the Caregiver Act deemed all decisions medical determinations, and thus such decisions “may not be adjudicated in the standard manner as claims associated with veterans’ benefits.” Caregivers Program, 80 Fed. Reg. at 1366. Case: 22-1264 Document: 81 Page: 4 Filed: 02/27/2024

B. Procedural History Jeremy Beaudette served in the Marine Corps from 2002 to 2012, including five combat tours in Iraq and Af- ghanistan. Mr. Beaudette suffered multiple concussions, resulting in traumatic brain injury and rendering him le- gally blind. He was medically discharged, and the VA rated him 100% disabled. Mr. Beaudette and his wife Maya Beaudette (collec- tively, the Beaudettes) applied for Caregiver Program ben- efits in March 2013. The VA found them eligible based on Mr. Beaudette’s inability to perform activities of daily liv- ing and his substantial need for supervision and protection. The Beaudettes remained in the Caregiver Program for over four years and the VA consistently found them eligible during its annual reassessments. In October 2017, the VA initiated its regular reassessment of Mr. Beaudette. Due to Mr. Beaudette’s ongoing recovery from major surgeries, the Beaudettes requested a delay in the reassessment until he could physically participate. The VA denied the request and proceeded to reassess his status based solely on his medical records. In February 2018, the VA notified the Beaudettes they were no longer eligible for Caregiver Program benefits. The Beaudettes appealed the VA’s decision through the VA Clinical Appeals process. See Caregiver Program, 80 Fed. Reg. at 1366; see also VHA Directive 1041 (Oct. 24, 2016) (J.A. 23–33). They first appealed to the VA Southern Ne- vada Healthcare System (SNHS), the first-level reviewer, which affirmed the VA’s decision. The Beaudettes ap- pealed the SNHS decision to the second-level reviewer, the Director of the Sierra Pacific Veterans Integrated Service Network (VISN), which affirmed. The decision was consid- ered final and could not be appealed. The Beaudettes sought to appeal the final adverse de- cision by filing a Notice of Disagreement with the Board in August 2019. The Board issued no decision in response, Case: 22-1264 Document: 81 Page: 5 Filed: 02/27/2024

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nor did the Board dismiss the Notice of Disagreement for lack of jurisdiction. Nearly a year later in July 2020, the Beaudettes filed a petition for a writ of mandamus with the Veterans Court pursuant to 28 U.S.C. § 1651. The petition sought an order to permit Board review of adverse Care- giver Program decisions and sought to certify a class of sim- ilarly situated veterans and caregivers. In April 2021, a majority of a three-judge panel granted the Beaudettes’ petition and certified the request for a class. Beaudette v. McDonough, 34 Vet. App. 95, 99 (2021). 1 The majority held Congress mandated Board re- view of all Caregiver Program decisions. Id. at 105 (citing 38 U.S.C. § 7104(a)). The majority disagreed with the Sec- retary’s position that the phrase “medical determination” in § 1720G(c)(1) is a direct reference to a longstanding VA rule, 38 C.F.R. § 20.104(b), excluding medical determina- tions from Board review. Id. at 101 (citing 38 U.S.C. §§ 511(a), 7252(a)), 103. Under the canons of statutory con- struction, the majority concluded the Secretary did not meet his burden to overcome the strong presumption favor- ing judicial review of administrative action. Id. at 102–03. The majority declined to provide a definitive interpretation of § 1720G(c)(1). Id. at 105.

1 The Veterans Court ordered the Secretary to notify claimants of their right to appeal adverse Caregiver Pro- gram determinations to the Board. Beaudette, 34 Vet. App. at 99. The Secretary did not request a stay of the order. J.A. 1368–73; Appellee’s Response Br. at 15. The VA is- sued over 400,000 notices of potential appeal rights to all veterans and caregivers who ever received a Caregiver Pro- gram decision. See Joint Letter in Response to Court’s Or- der, Dkt. No. 75 at 2. As of December 11, 2023, the Board had issued over 1,000 decisions on appeals of Caregiver Program decisions. Id. at 3. Case: 22-1264 Document: 81 Page: 6 Filed: 02/27/2024

Judge Falvey dissented because he believed the term “medical determination” in § 1720G(c)(1) refers to the longstanding VA rule, which was in existence before Con- gress passed the Caregiver Act. Id. at 109 (Falvey, J., dis- senting). He concluded the Secretary’s interpretation of § 1720G precluding Board review “is the only interpreta- tion that gives effect to all of the statute’s provisions and presumes that Congress understands the implications of its words.” Id. The Secretary appeals. 2 We have jurisdiction under 38 U.S.C. § 7292(a), (c). DISCUSSION I In reviewing Veterans Court decisions, we “shall decide all relevant questions of law, including interpreting consti- tutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). We have “jurisdiction to review the [Veterans Court’s] de- cision whether to grant a mandamus petition that raises a non-frivolous legal question,” and to determine “whether the petitioner has satisfied the legal standard for issuing the writ.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013). We review the Veterans Court’s legal interpre- tations de novo. Monk v. Shulkin, 855 F.3d 1312, 1316 (Fed. Cir. 2017). 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 and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. To obtain a writ of mandamus, the petitioner must show: (1) a “clear and indisputable” right to the relief; (2) no adequate

2 The Secretary does not appeal the Veterans Court’s class certification decision. Appellant’s Opening Br. at 16 n.7. Case: 22-1264 Document: 81 Page: 7 Filed: 02/27/2024

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alternative means to obtain the relief requested; and (3) the writ is appropriate under the circumstances. Wolfe v. McDonough, 28 F.4th 1348, 1354 (Fed. Cir. 2022) (citing Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004)). The Secretary challenges the issuance of the writ. II We consider whether the Beaudettes have a “clear and indisputable” right to Board review under the correct inter- pretation of 38 U.S.C. § 1720G(c)(1). The statute states: “A decision by the Secretary under this section affecting the furnishing of assistance or support shall be considered a medical determination.” 38 U.S.C. § 1720G(c)(1). The Beaudettes’ right depends on whether the term “medical determination” precludes Board (and judicial) review of all Caregiver Program decisions. For the reasons set forth be- low, we hold § 1720G(c)(1) only bars judicial review of Caregiver Program decisions on the furnishing of assis- tance or support. There is a “strong presumption” favoring judicial re- view of agency actions. Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 486 (2015) (quoting Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986)). This rebuttable pre- sumption is overcome if the “statute’s language or struc- ture demonstrates that Congress wanted an agency to police its own conduct.” Id. The party seeking to rebut the presumption, here the Secretary, “bears a ‘heavy burden’ of showing that the statute’s ‘language or structure’ fore- closes judicial review.” Salinas v. U.S. R.R. Ret. Bd., 592 U.S. 188, 197 (2021) (quoting Mach Mining, 575 U.S. at 486). The Secretary has not met its burden to show all Caregiver Program decisions are exempt from judicial re- view. Historically, there was no judicial review of VA benefits decisions. See, e.g., Act of March 20, 1933, ch. 3 § 5, 48 Stat. 9 (1933) (“All decisions rendered by the Administrator of Veterans’ Affairs . . . shall be final and conclusive on all Case: 22-1264 Document: 81 Page: 8 Filed: 02/27/2024

questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by man- damus or otherwise any such decision.”); 38 U.S.C. § 211(a) (1958) (“[T]he decisions of the Administrator on any ques- tion of law or fact concerning a claim for benefits or pay- ments . . . shall be final and conclusive and no other official or any court of the United States shall have power or juris- diction to review any such decision.”). This exclusion re- mained in place for decades. In 1988, Congress, for the first time, established a pathway for judicial review for certain benefits decisions when it passed the Veterans’ Judicial Review Act of 1988 (VJRA). Veterans’ Judicial Review Act, Pub. L. No. 100- 687, 102 Stat. 4105 (1988). The VJRA accomplished this by amending § 211(a) to create exceptions to the general prohibition to judicial review. See 38 U.S.C. § 211(a) (1988); 38 U.S.C. § 511 (2012); Bates v. Nicholson, 398 F.3d 1355, 1362–64 (Fed. Cir. 2005) (explaining the history of § 511, including its predecessor § 211(a)). Specifically, all “matters covered by chapter 72 of this title” were now sub- ject to judicial review. 38 U.S.C. § 211(a)(2)(D) (1988) (ex- empting certain matters from the general prohibition of judicial review); see VJRA § 101. The VJRA also estab- lished that the newly created Veterans Court has jurisdic- tion over all Board decisions that are eligible for judicial review. VJRA § 301 (creating 38 U.S.C. § 4052, renum- bered to current § 7252, to establish jurisdiction). Under the VJRA, the Board continued to have jurisdiction over “[a]ll questions in a matter which under section 511(a) of this title is subject to decision by the Secretary.” 38 U.S.C. § 7104(a). In view of this history, Congress knew how to limit ju- dicial review, including the jurisdiction of the Board, when it passed the Caregiver Act in 2010. In fact, in a related context, Congress expressly prohibited judicial review of all decisions under the Veterans Community Care Program. 38 U.S.C. § 1703(f). There, Congress stated that “review of Case: 22-1264 Document: 81 Page: 9 Filed: 02/27/2024

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any decision under subsection (d) or (e) shall be subject to the Department’s clinical appeals process, and such deci- sions may not be appealed to the Board of Veterans’ Ap- peals.” Id. (emphases added). When Congress intends to prohibit judicial review, it clearly does so. See, e.g., 38 U.S.C. §§ 511(a), 7252(b) (“The Court may not review the schedule of ratings or disabilities . . . or any action of the Secretary in adopting or revising that schedule.”), 7263(d) (“An order of the Court under this subsection is final and may not be reviewed in any other court.”). Congress did not express an intent to prohibit judicial review of all decisions in the plain language of § 1720G(c)(1). 38 U.S.C. § 1720G(c)(1) (“A decision by the Secretary under this section affecting the furnishing of as- sistance or support shall be considered a medical determi- nation.”); see, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340–41 (1997) (explaining the “plainness or ambiguity of statutory language is determined by reference to the lan- guage itself”). Indeed, the statute does not directly address judicial review at all. Though the plain language does not prohibit judicial review, the Secretary argues Congress intended for all Caregiver Program decisions to be exempt from Board re- view. Appellant’s Opening Br. at 21–22, 36–37. The Sec- retary argues “medical determination” is a reference to the VA’s regulation precluding Board review of medical deter- minations, which demonstrates Congress’ intent to exclude them from Board review. Id. at 21–22 (citing 38 C.F.R. § 20.104(b) (1992)). We do not agree. The Secretary’s argument is based on VA regulations issued in 1983, prior to the VJRA, delineating the appellate jurisdiction of the Board. Appeals Regulations, 48 Fed. Reg. 6961, 6970 (Feb. 17, 1983) (codified at 38 C.F.R. pt. 19). The VA established that “[m]edical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an Case: 22-1264 Document: 81 Page: 10 Filed: 02/27/2024

individual, are not adjudicative matters and are beyond the Board’s jurisdiction.” 38 C.F.R § 19.3(b) (1983). The VA has continued to implement regulations, not challenged by either party, that establish the types of matters within the Board’s jurisdiction. See 38 C.F.R. § 20.101(b) (1992); 38 C.F.R. § 20.104(a) (2019). When the Caregiver Act was en- acted, the Board’s appellate jurisdiction was defined: (b) Appellate jurisdiction of determinations of the Veterans Health Administration. The Board’s ap- pellate jurisdiction extends to questions of eligibil- ity for hospitalization, outpatient treatment, and nursing home and domiciliary care; for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances; and for other benefits administered by the Veter- ans Health Administration. Medical determina- tions, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudica- tive matters and are beyond the Board’s jurisdic- tion. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced. 38 C.F.R. § 20.101(b) (1992) (emphasis added). 3 The regu- lation was redesignated in 2019 to section 20.104(b) and

3 Because the statute references a term of art in the VA regulation, the VA is bound by the language in the reg- ulation at the time the Caregiver Act passed. See George v. McDonough, 596 U.S. 740, 746–47 (2022) (“Where Con- gress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” (internal quotations omitted)); Traynor v. Turnage, 485 U.S. 535, Case: 22-1264 Document: 81 Page: 11 Filed: 02/27/2024

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retained nearly the same language. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 177 (2019). We presume Congress legislates with knowledge of ex- isting statutes and regulations. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988) (“We generally pre- sume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.”); see Traynor, 485 U.S. at 545–46. The Secretary argues Congress’ awareness of VA’s longstanding regulation points to their intention to prohibit judicial review. Appellant’s Opening Br. at 28–30. But the Beaudettes do not argue Congress was unaware of the regulation. Rather, the Beaudettes argue that with awareness of the regulation, Congress limited its applica- tion. Oral Arg. at 39:00–41:42, https://oralargu- ments.cafc.uscourts.gov/default.aspx?fl=22-1264_120620 23.mp3. We agree with both parties that the reference to “medical determination” implicates the VA regulation re- garding the Board’s jurisdiction. To the extent the Secretary is suggesting that by refer- encing “medical determination[s],” Congress intended no judicial review of all Caregiver Program decisions, we do not agree. Congress chose to limit the regulation’s applica- bility to only decisions “affecting the furnishing of assis- tance or support.” 38 U.S.C. § 1720G(c)(1); see Oral Arg. at 39:00–41:42. We understand this language to except from Board review only decisions relating to the need for or ap- propriateness of specific types of medical care and treat- ment, which are properly considered medical determinations. The Caregiver Act necessarily requires decisions other than medical determinations, such as whether veterans and caregivers are eligible to receive

545–46 (1988) (explaining that when Congress uses a term of art when enacting a statute, it intends the same term receive the same meaning for purposes of that statute). Case: 22-1264 Document: 81 Page: 12 Filed: 02/27/2024

benefits. 38 U.S.C. § 1720G(a)(2), (a)(4), (a)(5), (a)(7). Ju- dicial review over those decisions is not precluded. The Secretary’s argument is also inconsistent with the regulation itself. The VA’s regulation broadly defines the types of decisions that fall within the scope of the Board’s review. For example, the first sentence of 38 C.F.R. § 20.101(b) states the Board has jurisdiction over eligibility decisions of various benefits, such as outpatient treatment, domiciliary care, and “other benefits administered by the Veterans Health Administration.” 38 C.F.R. § 20.101(b) (1992). 4 Some Caregiver Program decisions are at least within the scope of “other benefits” and would fall under the Board’s jurisdiction. See Appellant’s Opening Br. at 14 n.6. The VA regulation excludes from Board review a nar- row type of medical determination that is essential to VA’s authority to prescribe specific types of medical care or treatment. 38 C.F.R. § 20.101(b) (1992) (describing medi- cal determinations as “determinations of the need for and appropriateness of specific types of medical care and treat- ment for an individual”). The regulation provides exam- ples of medical determinations, such as a type of drug that should be prescribed, type of physiotherapy that should be ordered, or any other similar “judgmental treatment deci- sions.” Id. The language of 38 U.S.C. § 1720G(c)(1) is

4 At the panel’s request, the parties submitted sup- plemental briefing on the meaning of “domiciliary care” within section 20.101(b). Supplemental Brief for Appel- lant, Dkt. No. 77; Supplemental Brief for Appellees, Dkt. No. 76. The parties appear to agree the term historically means providing housing to a veteran rather than provid- ing in-home care. Appellant’s Supp. Br. at 2–3; Appellees’ Supp. Br. at 3. Because section 20.101(b) covers “other ben- efits,” we need not address the current meaning of “domi- ciliary care.” Case: 22-1264 Document: 81 Page: 13 Filed: 02/27/2024

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consistent with the VA’s regulation. Section 1720G(c)(1) does not state all Caregiver Program decisions are medical determinations, only decisions about the type of “assis- tance or support.” 38 U.S.C. § 1720G(c)(1). An eligibility decision is not a judgmental treatment decision and thus not a medical determination. Moreover, the Board has the authority to determine the types of Caregiver Program decisions that fall within its jurisdiction. 38 C.F.R. § 20.104(c) (2019) (“The Board shall decide all questions pertaining to its jurisdictional au- thority to review a particular case.”). To comply with 38 U.S.C. § 1720G(c)(1), the Board must view all decisions about the “furnishing of assistance or support” as medical determinations and outside of its jurisdiction. 38 U.S.C. § 1720G(c)(1). An example of such a decision is whether a specific type of mental health service is appropriate, or whether the type of respite care provided for primary fam- ily caregivers is medically and age-appropriate. 38 U.S.C. § 1720G(a)(3)(A)(ii)(II), (a)(3)(A)(ii)(III), (a)(3)(B). Other decisions not related to the furnishing of assistance and support are within the Board’s jurisdiction. For example, decisions about the veteran’s or caregiver’s eligibility, such as whether the caregiver is an appropriate family member, are within the Board’s jurisdiction. See, e.g., 38 U.S.C. § 1720G(d)(3). Here, the Beaudettes were deemed ineligible partially because Mr. Beaudette was not available for an in-person evaluation. J.A. 48–49. This is a procedural issue related to Caregiver Program eligibility and is not a medical deter- mination. The Board has the authority to review the Beaudettes’ decision based on the interpretation of the statute and the VA regulation. We conclude the Beaudettes and other similarly situ- ated veterans and caregivers have an indisputable right to judicial review of Caregiver Program decisions that do not affect the furnishing of support or assistance. The Board Case: 22-1264 Document: 81 Page: 14 Filed: 02/27/2024

has the authority under 38 C.F.R. § 20.104(c) to determine the types of appeals within its jurisdiction in light of the guidance above. III We next consider whether the Beaudettes had no ade- quate alternative means to obtain the relief requested. Wolfe, 28 F.4th at 1354. The Secretary argues the Beaudettes could have filed a direct appeal to this Court pursuant to 38 U.S.C. § 502. Appellant’s Opening Br. at 46–48. A § 502 petition is a challenge to the VA’s regula- tions or rulemaking under the Administrative Procedure Act. 38 U.S.C. § 502 (providing judicial review of VA’s ac- tion under 5 U.S.C. §§ 552(a)(1) or 553). But the Beaudettes do not challenge the VA’s regulation or rule- making for the Caregiver Program. Rather, the Beaudettes seek judicial review of an adverse decision re- garding their eligibility for the Caregiver Program. J.A. 3–4; see also Oral Arg. at 28:42–30:31 (Secretary agreeing the Beaudettes are not challenging a regulation or rule). While the Beaudettes’ arguments challenge the VA’s inter- pretation of a statute, they are not challenging the VA’s rulemaking. Thus, the Beaudettes had no adequate alter- native means to obtain the relief requested and the Veter- ans Court properly issued a writ of mandamus. CONCLUSION We have considered the parties’ remaining arguments and find them unpersuasive. For the reasons given above, we affirm the Veterans Court’s grant of the petition for a writ of mandamus. AFFIRMED COSTS No costs.