Single Judge Application, Challenging a Fiduciary, Freeman, 24 Vet.App. (2011)

Excerpt from decision below:
"In Freeman, the Court addressed whether the Secretary's authority to appoint a fiduciary pursuant to 38 U.S.C. § 5502 was a matter reviewable by this
Court. 24 Vet.App. 404(2011). The Court answered this question in the affirmative: "We therefore conclude that section 5502 falls within the congressional grant of jurisdiction given to the Board and to this Court in the [Veterans' Judicial Review Act of 1988, Pub. L. 100-687, 102 Stat. 4105]." Id. at 416; but see id. at 415 (recognizing that "[o]ther provisions of [section] 5502 contain language that indicates that the Secretary has 'discretion' over acts involving suspected improper acts by a fiduciary," which may be outside the Board's and this Court's jurisdiction).
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"Therefore, to the extent that the petitioners seek to challenge VA's
selection of GBC as the fiduciary for the veteran, the Court's decision in Freeman clearly establishes an administrative remedy to address their grievance. Id. at 413 (holding that the Secretary is "compelled to recognize" a Notice of Disagreement concerning VA's selection of a VA fiduciary).
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"To the extent that the petitioners seek an accounting of the veteran's funds paid to the VA-appointed fiduciary, GBC, the Court notes that this request is contingent upon the propriety of the appointment of GBC, which will be addressed by the Agency in accordance with Freeman."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1605
WILLIAM L. EVANS, ET AL., PETITIONERS,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, ET AL., RESPONDENTS.

Before SCHOELEN, Judge.
ORDER

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On May20, 2011, the petitioners, veteran William L. Evans, his spouse,
Dorothy Evans, and
his daughter, Carolyn S. Stump, filed with the Court a petition for
extraordinary relief in the form
of a writ of mandamus. The petition raises numerous allegations regarding
the Secretary's
appointment of Greenfield Banking Company (GBC) as a fiduciary for the
veteran, who has been
declared incompetent to handle the disbursement of VA funds; the removal
of Ms. Stump as the veteran's fiduciary; VA's "refusal" to reimburse Ms. Stump for expenses purportedly incurred for the veteran's benefit; VA's January 18, 2011, determination that Ms. Stump "misused" the veteran's funds and its request for remittance; and VA's refusal to acknowledge Ms. Stump's authority as the
veteran's attorney-in-fact and State court-appointed guardian over the
person and estate of the veteran.
The petitioners seek the following relief: (1) "A writ of mandamus
ordering the Secretary to cease and desist from any action to seek money from [Ms. Stump] and voiding, reversing, and vacating the Secretary's finding of misuse by [Ms. Stump]"; (2) "An order declaring that the Secretary's disregard of the powers granted in the executed Durable Power of Attorney and associated property rights of the attorney-in-fact and competent spouse violate the United States Constitution, the laws of the State of Indiana, and the requirements in 38
U.S.C. § 5502(b) for state
court approval of actions conflicting with grants of power"; (3) "A writ
of mandamus ordering the
Secretary to recognize the authority of [Ms. Stump] under the October 19,
2005, Durable Power of
Attorney executed by [the veteran, Mr. Evans,] and all relevant laws of
the State of Indiana, as well
as the October 1, 2010[,] Order Appointing [Ms. Stump] as Permanent
Guardian Over the Person
and Estate of William Louis Evans, Jr., executed by a Marion [Indiana]
Superior Court Judge"; (4)
"A writ of mandamus ordering the Secretary to immediately revoke the
authority of the currently
assigned federal fiduciary and immediately return all funds held by that
fiduciary, VA, or any VA


agent, to Mr. Evans's authorized attorney-in-fact"; (5) "A writ of
mandamus ordering the Secretary
to retain a qualified accountant, independent of VA, to conduct an
accounting of Mr. Evans's VA
benefits since October 2010 and ordering the Secretary to make Mr. Evans
whole for all costs, fees,
and expenses related to the actions of the VA-assigned fiduciary including,
but not limited to, fees
paid to the fiduciary, check and other banking charges, and the cost of
obtaining any VA-required
bond"; and (6) "A writ of mandamus ordering the Secretary to pay
reasonable costs and attorneys
fees in this matter." Petition at 5-6.
The petitioners also filed a motion for panel decision on June 2, 2011,
and a motion for leave
to file supplemental information on June 22, 2011. On June 15, 2011, the
Secretary filed a response
in opposition to the motion for panel decision. Because the Court has
determined that this matter
may be resolved by a single judge, the Court will deny the motion for
panel decision. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will grant the
petitioners' motion to file
additional information and will consider the correspondence and documents
appended to the motion
as part of this petition. For the reasons stated below, the petition for
extraordinary relief will be
denied.
The Court has the authority to issue extraordinary writs in aid of its
jurisdiction, or potential
jurisdiction, pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox
v. West, 149 F.3d 1360,
1363-64 (Fed. Cir. 1998). However, "[t]he remedy of mandamus is a drastic
one, to be invoked only
in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (
1976). Accordingly, three
conditions must be met before a court may issue a writ: (1) The petitioner
must lack adequate
alternative means to attain the desired relief, thus ensuring that the
writ is not used as a substitute
for an appeal; (2) the petitioner must demonstrate a clear and
indisputable right to the writ; and (3)
the Court must be convinced, given the circumstances, that the issuance of
the writ is warranted. See
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).
In Freeman, the Court addressed whether the Secretary's authority to appoint a fiduciary pursuant to 38 U.S.C. § 5502 was a matter reviewable by this
Court. 24 Vet.App. 404(2011). The Court answered this question in the affirmative: "We therefore conclude that section 5502 falls within the congressional grant of jurisdiction given to the Board and to this Court in the [Veterans' Judicial Review Act of 1988, Pub. L. 100-687, 102 Stat. 4105]." Id. at 416; but see id. at 415 (recognizing that "[o]ther provisions of [section] 5502 contain language that indicates that the Secretary has 'discretion' over acts involving suspected improper acts by a fiduciary," which may be outside the Board's and this Court's jurisdiction). The Court rejected the Secretary's contention that
because it was a matter committed to his sole discretion his execution of
the obligation to select a
fiduciary was not reviewable by this Court, or by any court. Id. at 411-16.
Consequently, "if [a]
veteran disagrees with the Secretary's manner of selecting a fiduciary,
the veteran may appeal that
decision to the Board." Id. at 414.
Therefore, to the extent that the petitioners seek to challenge VA's
selection of GBC as the
fiduciary for the veteran, the Court's decision in Freeman clearly
establishes an administrative
remedy to address their grievance. Id. at 413 (holding that the Secretary is "
compelled to recognize" a Notice of Disagreement concerning VA's selection of a VA fiduciary). The
Court recognizes that
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the petition and its supporting exhibits demonstrate a convoluted and
contentious history among the
parties concerningthe selection and appointment of a fiduciaryfor the
veteran. In light of the Court's
holding in Previous HitFreemanNext Hit, the Court trusts that the Secretary will act in
accordance with this Court's
decision and issue a Statement of the Case (SOC) in response to the
petitioners' disagreement with
the appointment of GBC as the veteran's fiduciary as well as to their
ancillary request that VA
recognize Ms. Stump as attorney-in-fact and court-appointed guardian over
the person and estate of
the veteran. If the Secretary refuses to issue an SOC, the petitioners may
re-file their petition, as appropriate. To the extent that the petitioners seek an accounting of the veteran's funds paid to the VA-appointed fiduciary, GBC, the Court notes that this request is contingent upon the propriety of the appointment of GBC, which will be addressed by the Agency in accordance with Freeman. As
a result, the Court concludes that the petitioners have not established
the right to a writ as their request is premature. See Cheney and Freeman, both supra.
The petitioners' assertion that the Secretary has taken the position that
their "due process
rights have expired" leaving them without a remedy absent Court
intervention is not persuasive.
Petition at 16. The petitioners mistakenly rely on the regional office's
referral to "due process" in
a July 2009 rating decision as it related to VA's determination that the
veteran was not competent
to handle the disbursement of funds – an issue that has not been
contested by the petitioners. See
38 C.F.R. § 3.353(e) (2011) (providing that "[w]henever it is proposed to
make an incompetency
determination, the beneficiary will be notified of the proposed action and
or the right to a hearing").
To the extent that the petitioners assert that Ms. Stump has been unable
to challenge VA's misuse determination and that no alternative means are available to prevent the Secretary from arbitrarily seizing money from Ms. Stump, the petitioners have not demonstrated that the Board, and
therefore this Court, would have jurisdiction to address this matter. Petition at 17. See Cheney, Freeman, and Cox, supra. Even assuming jurisdiction exists, the petitioners also have not demonstrated that the issue is ripe for review. See Texas v. United States, 523 U.S. 296, 300 (1998)("A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as
anticipated, or indeed may not occur at all.'" (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotations omitted))). The only
sanction levied against Ms. Stump as a result of VA's misuse determination has been her removal as the veteran's fiduciary and the subsequent appointment of GBC – an issue that will be addressed by the Agency in accordance with the Court's decision in Freeman, supra. There is no indication in the record that VA has initiated State court proceedings for restitution nor has the Secretary pursued criminal proceedings
in accordance with title 18, either of which would afford Ms. Stump an opportunity to defend the allegations made against her in accordance with her rights guaranteed by the U.S. Constitution. See 38 U.S.C. §§ 6101, 6106; 18 U.S.C. § 641; 38 C.F.R. § 13.100 (2011).
With regard to the parties' dispute concerning Ms. Stump's request for
reimbursement of
expenses, the Court notes that the documents appended to the petitioners'
June 22, 2011, motion
demonstrate that VA has approved and reimbursed Ms. Stump for expenses in
the amount of
$8,083.17. VA also informed Ms. Stump that further documentation was
required to approve the
remaining items and stated that she may provide additional documentation
to supplement her
reimbursement request. As a result, even assuming the Board, and therefore
this Court, have
3


jurisdiction to review this matter, the Court concludes that the
petitioners have not demonstrated that
they have a clear and indisputable right to the writ or that they have
exhausted their administrative
remedies. See Cheney, supra; see also Friscia v. Brown, 8 Vet.App. 90, 91 (
1995) (per curiam
order) (exhaustion of administrative remedies required to establish
entitlement to a writ).
Upon consideration of the foregoing, it is
ORDERED that the petitioners' June 2, 2011, motion for a panel decision is
DENIED. It is
further
ORDERED that the petitioners' June 22, 2011, motion for leave to file
additional
supplemental information is GRANTED. It is further
ORDERED that the petitioners' request for extraordinary relief is DENIED.
DATED: July 15, 2011
BY THE COURT:
MARY J. SCHOELEN
Judge

Copies to:
Katrina J. Eagle, Esq.
Douglas J. Rosinski, Esq.
VA General Counsel (027)
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