Joe A. Browder, Jr. v. David J. Shulkin
17-0552
| Vet. App. | Dec 12, 2017Background
- Joe A. Browder, Jr. petitioned for a writ of mandamus to compel VA to allow appeal to the Board of Veterans' Appeals of agency decisions declining to investigate alleged fiduciary misuse.
- VA's informal two-step policy: fiduciary-hub officials first decide in their discretion whether there is sufficient evidence to warrant a formal misuse investigation; if not, matter is closed without a formal investigation.
- Browder had alleged fiduciary embezzlement since 2006; VA issued memoranda in 2008 and 2017 concluding there was no need to investigate; Browder sought review of those non-investigation decisions.
- The Secretary argued non-investigation decisions are discretionary and not subject to Board appellate review; the Court formed a panel to consider whether such decisions are appealable.
- While the panel was pending, VA conducted a formal misuse investigation and issued a report (Oct. 6, 2017) and informed Browder of his right to appeal that report to the Board.
- The Secretary’s action rendered the legal question academic as to relief in this case; the Court dismissed the petition as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA decisions not to formally investigate fiduciary-misuse allegations are appealable to the Board and this Court | Browder: non-investigation decisions are reviewable; he should be allowed to appeal them to the Board | Secretary: decisions not to investigate are discretionary and not subject to Board review | Moot — Court did not decide on the merits because VA later conducted a formal investigation, providing the relief sought (right to Board review of investigation report) |
| Whether the petition for mandamus should be dismissed as moot despite not receiving the exact relief requested | Browder: mooting the petition delays relief and may be cynical | Secretary: issuance of a formal report gives Browder the practical relief he sought; petition is moot | Petition dismissed as moot; Court found the formal investigation redressed the alleged injury and no further relief was available |
Key Cases Cited
- FTC v. Dean Foods Co., 384 U.S. 597 (1966) (writ jurisdiction extends to potential appellate jurisdiction where appeal may later be perfected)
- Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998) (stands for appellate jurisdiction principles in veterans cases)
- Freeman v. Shinseki, 24 Vet.App. 404 (2011) (formal misuse-investigation reports are subject to Board review)
- Solze v. Shinseki, 26 Vet.App. 299 (2013) (VA’s duties to inform court of actions taken while petitions pending)
- Mokal v. Derwinski, 1 Vet.App. 12 (1990) (case-or-controversy mootness principles applied to petitions)
- INS v. Chadha, 462 U.S. 919 (1983) (redressability and meaningfulness in controversy analysis)
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (scope and limits of mandamus relief)