Freeman v. Shinseki, No. 10-1462, Fiduciary Assignment and Veteran Due Process Rights

Fiduciary Assignment and Veteran Due Process Rights

The Court's posting of oral arguments in Freeman v. Shinseki, No. 10-1462 provides insight into how the VA handles the assignment of Fiduciaries for incompetent Veterans. While the oral arguments are quiet lively, the published opinion will be the record upon which citation can be exacted.
We have provide the Court Order calling for the issues to be addressed in the Oral Arguments and two of the key CFR's, 13.55 and 13.58. Of note is that CFR 13.58 was brought up by the Court and not by either counsel.

Oral Arguments can be downloaded from the Court's Website at:
http://www.uscourts.cavc.gov/oral_arguments/2011OralArguments.cfm
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1462
WILLIAM E. FREEMAN
V.
PETITIONER,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
RESPONDENT.

Before HAGEL, MOORMAN, and LANCE, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

On November 1, 2010, the Court directed that this case be submitted to a panel and that the proceedings be stayed to permit possible arrangements for representation of the petitioner. The petitioner has since obtained counsel and on November 15, 2010, the petitioner filed a motion for oral argument in this case. The petitioner informed the Court that, after having communicated with the Secretary's counsel, the motion for oral argument is unopposed. The Court will grant the motion for oral argument. Accordingly, the Court will direct the parties to submit memoranda of law in this matter to include the issues discussed below.
The issue before the Court is whether the Court has jurisdiction to review the Secretary's decisions concerning appointment of a VA fiduciary under 38 U.S.C. § 5502.
The petitioner's sister asserts status as holder of the veteran's power of attorney and requests that she be appointed the veteran's fiduciary in place of the currently appointed VA fiduciary. The Secretary asserts that the appointment of a fiduciary is within his sole discretion and is not reviewable by this Court or any judicial body. See Willis v. Brown, 6 Vet. App. 433 (1994). The parties should address the following questions in their memoranda:
1. Whether the U.S. Court of Appeals for the Federal Circuit's decision in
Bates v. Nicholson, 398 F.3d 1355 (2005), and its rationale affect this Court's
holding in Willis;
2. Whether the appointment of a VA fiduciary is subject to review by the
Board of Veterans Appeals; and
3. As outlined in Bates, whether the appointment of a fiduciary is a
Secretarial decision


under a "law that affects the provision of benefits" subject to review in
this Court. 38 U.S.C. § 511(a); see 38 U.S.C. §§ 7104(a), 7252(a).
The Court also notes the November 17, 2010, filing of an unopposed motion
for leave to appear as amicus curiae by the National Organization of Veterans' Advocates, Inc. (NOVA). NOVA requests that it be allowed to "intervene" in the case as amicus curiae.
The Court observes that intervention and appearing as amicus curiae have different procedural implication and are controlled by two different Rules of the Court. See U.S. VET. APP. R. 15 & 29. Thus, the Court will grant NOVA's motion to appear as amicus curiae in support of the position of the petitioner under Rule 29 of the Court’s Rules of Practice and Procedure (Rules), not as an
intervener under Rule 15. The petitioner may share a portion of his allotted time for oral argument with the amicus as the petitioner deems appropriate. The parties should inform the Court of any division of time for oral argument between the petitioner and amicus curiae not later than two days prior to the oral argument.
Upon consideration of the foregoing it is ORDERED that the motion of the petitioner for oral argument is granted.
The Clerk of the Court will schedule the oral argument in accordance with the Court's Rules.
It is further ORDERED that NOVA's motion for leave to appear as amicus curiae is granted.
The amicus should file its memorandum of law before the Court in accordance with Rule 29. It is further ORDERED that the November 1, 2010, stay of proceedings is lifted and the parties file memoranda of law taking into account the issues discussed in this order.
The petitioner will file his memorandum of law within 30 days of the date of this order, and the Secretary will file his response within 30 days after service of the petitioner’s memorandum of law. See U.S. Vet. App. R. 21, 31.
Each memorandum of law shall not exceed 20 pages.

DATED: November 23, 2010
Copies to:
Douglas J. Rosinski, Esq.
VA General Counsel (027)
Katrina J. Eagle, Esq.
PER CURIAM.

One might want to look at GOSSETT v. CZECH, No. 06-16973 (Argued and Submitted June 4, 2009. -- September 09, 2009) 9th Circuit, where it stated:
"Pursuant to the VBA's implementing regulations, the VA may select and appoint a person best suited to receive VA benefits in a fiduciary capacity for a beneficiary who is incompetent. 38 C.F.R. § 13.55(a)(“The Veterans Service Center Manager [VSCM] is authorized to select and appoint the person or legal entity best suited to receive Department of Veterans Affairs benefits in a fiduciary capacity for a beneficiary who is mentally ill (incompetent) or under legal disability”). Disbursal of benefits to this fiduciary is subject to the condition that he or she use the benefits for the beneficiary's “best interests.” 38 C.F.R. § 13.58(b)(2)(i)."
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TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 13 - VETERANS BENEFITS ADMINISTRATION, FIDUCIARY ACTIVITIES

13.55 - Veterans Service Center Manager to select and appoint or recommend for appointment the person or legal entity to receive Department of Veterans Affairs benefits in a fiduciary capacity.

(a) Authority. The Veterans Service Center Manager is authorized to select and appoint (or in the case of a court-appointed fiduciary, to recommend for appointment) the person or legal entity best suited to receive Department of Veterans Affairs benefits in a fiduciary capacity for a beneficiary who is mentally ill (incompetent) or under legal disability by reason of minority or court action, and beneficiary's dependents.

(b) Payees. Authorized payees include: (1) The beneficiary (13.56(c)); (2) The beneficiary under supervision (supervised direct payment) (13.56 (a) and (b)); (3) The wife or husband of an incompetent veteran (13.57); (4) The legal custodian of a beneficiary's Department of Veterans Affairs benefits (13.58); (5) A court-appointed fiduciary of a beneficiary (13.59); (6) The chief officer of the institution in which the veteran is receiving care and treatment (13.61); (7) The bonded officer of an Indian reservation (13.62); (8) A custodian-in-fact of the beneficiary (13.63); (9) Dependents of the veteran by an apportioned award (13.70).

(c) Certification. The Veterans Service Center Manager's certification is authority to make payments to the designated payee.

[40 FR 54247, Nov. 21, 1975]
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TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 13 - VETERANS BENEFITS ADMINISTRATION, FIDUCIARY ACTIVITIES

13.58 - Legal custodian.

(a) Authority. The Veterans Service Center Manager is authorized to make determinations as to the person or legal entity to be appointed legal custodian to receive Department of Veterans Affairs payments on behalf of a beneficiary who is incompetent or under legal disability by reason of minority or court action. In the absence of special circumstances, the person or legal entity to be appointed legal custodian will be the person or legal entity caring for and/or having custody of the beneficiary or the beneficiary's estate.

(b) Payment to. Department of Veterans Affairs benefits may be paid to a legal custodian subject to the following conditions: (1) The Veterans Service Center Manager has determined that it would be in the best interests of the beneficiary to appoint a legal custodian.

(2) The proposed legal custodian is qualified to administer the benefits payable and will agree to: (i) Apply the benefits paid for the best interests of the beneficiary, (ii) Invest surplus funds as provided by Department of Veterans Affairs regulations, (iii) Furnish, upon request, evidence of compliance with agreement as to usage and investment of Department of Veterans Affairs benefits, and (iv) Inform the Veterans Service Center Manager of any change in the beneficiary's estate or any other circumstances that might affect entitlement or the manner in which payments are to be made.

[40 FR 54247, Nov. 21, 1975]
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