William E. Freeman v. Eric K. Shinseki

willing presumption was not to extend the citing pertinent significant Johnson, regularity willing in I am not authority if it newly-discovered were after presumption regularity to extend the (However, his briefs were filed. if VA’s point such a in this case. procedure truly has been so clear cut and delegation standing, surely so long Alternatively, in order comply with presented argu- should have stance, majority’s Mr. Parrish could ment to the possible Court at the first (1) recognized delegation have that a last.) opportunity, rather than the Yet the authority could have allowed the USB to only Court notes that it was at argu- oral comply with the statute and that a desig- Secretary argued ment that the that the nation was not in contained the record and M21-MR delega- constitutes a deficiency called this to the Court’s and tion of the in authority USB’s accordance Secretary’s attention in his initial brief. 3.100(a). §with For majority to con- could have then searched clude Mr. Parrish should have ob- provided VA’s files and delegation tained the document in order to rebut the memorandum responded in his brief presumption of authority the Sec- that a designation had been made from the. —when retary could not be bothered to USB to the & P C Director a format to the argument truly Court until oral other than delegation memorandum. —is placing an undue burden on the appellant. brief, In his initial Mr. specifi- Parrish cally argued that “[njothing 3.311 [§ ]

provides may delegate that the USB responsibility to P (Ap- the C & Director” 7)

pellant’s Brief at and that “the Secre- tary nothing cites in the indicating record delegated USB his responsibility 3.311(c) under section P Di- C & rector in this (Appellant’s case” Reply FREEMAN, Petitioner, William E. 4) at (emphasis Brief in original). Yet the Secretary, response, SHINSEKI, Secretary Eric K.

merely cited to 38 C.F.R. 3.100 stat- Affairs, of Veterans ed that the general USB “has the authori- Respondent. ty designate supervisory personnel findings applicable [VA] make under law No. 10-1462. regulations,” and that the P Di- C & reports directly rector to the USB. Secre- United States Court of Appeals tary’s Brief at 6. brief for Veterans Claims. would have the appropriate been time to April point the Court’s and Mr. Parrish’s atten- applicable provision of the M21-MR, effectively which designates the

PC & Director to exercise the 3.100(a).

delegated § It would have also been appropriate in compliance with Rule 30 of the Court’s Rules of Prac-

tice and Procedure for the Secretary to file

a letter of supplemental authority with the Allen,

sister, fiduciary to C. Debora benefits. The manage petitioner’s VA on the opposes petition to of whom that the determination grounds peti- fiduciary manage to appoint as within the benefits is a matter tioner’s VA and out- discretion of sole jurisdiction of this Court or side follow, the reasons that For the Court. request for grants petitioner’s a extraordinary relief and will issue writ mandamus.

I. FACTS Army served in the U.S. petitioner 5, February to February

from 1975, 6, May to 1975, February and from by the 6, rating decision issued 1976. In a (RO) on Waco, Texas, regional office VA 2009, 22, petitioner was December paranoid for connection granted service a 100% disabil- schizophrenia awarded date of Decem- with an effective ity rating 22, granted entitle- He was also ber compensation monthly special ment to same That on aid and attendance. based incom- to be petitioner found the decision of funds handle the disbursement petent to award, based to as a result due him that had examination a VA medical MOORMAN, HAGEL, for incompetent Before petitioner found LANCE, received Judges. handling his funds purposes peti- lay statement from and on a VA that also indicated tioner’s sister ORDER pur- for that incompetent petitioner PER CURIAM: 2010, 8, sent a February the RO On pose. 30, indicating filed 2010, petitioner April On letter extraordinary paid as a petition appointed a had Shelia Horace with his VA of mandamus. control over nature of writ to exercise relief peti- February that the Court is- requested benefits. On petition That the RO’s both ac- an NOD with directing the tioner filed writ sue a with rating decision December Disagree- Notice cept petitioner’s February (NOD) appointment with the ment fiduciary.1 On Horace as petitioner’s Ms. federal instead NOD, NOD concern- effective date. The an earlier petitioner’s addition initial subsequently ac- date ing the effective fiduciary, requested request change his February the RO sent letter to positions consistent asserted the Secre- indicating that it was not tary, both in this matter other possible him to file an NOD regarding litigation, regard with present- to the issue the selection of his On Febru- by ed the petition. instant The Court will 26, 2010, ary petitioner, the through his grant these motions and consider the ex- sister, objection renewed ap- hibits attached to them. pointment of Ms. Horace. above, As noted the petitioner filed an- After a subsequent exchange of corre- other motion supplement on March spondence regarding presently issues not However, 18, 2011, February on the Court, petitioner

before the the filed his Court ordered that additional filings in this petition extraordinary relief with this matter were to electronically be filed no on April 2010. On September later than 5:00 p.m. February 21, on 2010, this Court ordered to Accordingly, deny the Court will peti- respond to petition, and the Secre- 7, 2011, tioner’s March motion supple- tary’s response was received on September ment. 17, 2010. The Court then determined that it would argument hear oral in this case as III. PARTIES’ CONTENTIONS

well as receive briefing additional from the parties. order, Subsequent to that amicus A. Argument Petitioner’s curiae, Organization the National of Veter- petitioner The asserts that the plain lan- Advocates, ans’ granted leave to file a guage of the statutes in is deter- brief and be heard at oral argument. On jurisdictional minative of the question be- February 18, 2011, 16 and amicus and the fore the Court. Specifically, petitioner petitioner opposed filed motions for leave argues § that 38 U.S.C. 5502 indicates that to file supplemental information. The appointment is a matter argument heard oral on the merits “affects the of benefits” and petition of the and the outstanding motions 511(a). by thus covered supplement February on 2011. On Section 7104 of title 38 of the U.S.Code March the petitioner an filed addi- provides any decision of the Secretary tional motion for leave to supplemental file that is by covered section is entitled information, which again opposed to one review on Secretary. Secretary. The Board is agency the final authority any such appeals. Therefore, the Board II. PRELIMINARY MATTERS can appointment review the of a fiduciary, As a preliminary matter, the Court will and may the Court review such deci- address the outstanding motions for leave 7252(a). sion the Board. 38 U.S.C. supplemental file information. The February petitioner The sup- motions to asserts that there are plement seek leave to sufficient include and regulatory record stan- documents—a pleading permit filed dards to Secre- effective review of tary in the U.S. District Court for an appro- Northern District of Texas correspon- priate fiduciary. petitioner points to dence sent to the petitioner by §§ VA in 38 U.S.C. 5502 and 5507 for statutory February and March 2010—that peti- support and to regu- 38 C.F.R. 13.55for tioner and argue amicus demonstrate in- latory guidance. asserts

cepted by and is therefore petition. not at issue in this support appointing tions clearly de- provisions that these to sever the amicus cites argument follow Secretary to for the process lineated where, court district cases federal al appointing when asserts, Secretary has advanced process Secretary’s execution posi Court.2 with his by the Board in direct conflict argument reviewed this Court. now before petition acknowledges While Administration, Judkins See in the discretion some has (E.D.N.C.2005); 613, 617-18 F.Supp.2d fiduciary, he asserts Administra v. U.S. Veterans Whitmire discretionary authority of that the exercise (W.D.Wash.1986); tion, F.Supp. 720 Citing judicial review. preclude does Jane, 2277490 2005 Carney v. G.I. WL Gardner, 387 U.S. v. Abbott Labs. both 2005). addition, 16, (S.D.Tex. Sept. 1507, 681 140, 18 L.Ed.2d 136, 87 S.Ct. by filed amicus information supplemental Chaney, 470 U.S. (1967), Heckler v. fur in was submitted 1649, 714 84 L.Ed.2d 105 S.Ct. argument. judicial therance that (1985), asserts clear stat- unless there is is favored review that, However, we observe peti- it. The utory language precluding of this question us is a before matter that, rare in some acknowledges tioner by made an assertion jurisdiction, Court’s instances, granted statutory discretion exclusive in court that party another that broad may be so Court, even reposed in this jurisdiction is which to by standard will be no there made, jurisdic may not confer expressly if decisions, thereby prohibiting his review derives This Court upon this Court. tion above, However, as noted judicial review. Thus, the from statute. jurisdiction its 5507, as 5502 that sections contends he the Secre regarding argument amicus’s implement regulations as the well perhaps en position, while tary’s litigating statutes, can be law that those impact cannot troubling, or even lightening reviewing the Sec- in by the Court applied own of our outcome of particular retary’s decision West, 11 Vet. Heath v. See jurisdiction. 400, (holding 402 App. Arguments B. Amicus’s obligation and an right has a always Secretary is argues that the The amicus jurisdiction). its examine own this Court estopped arguing from questions to the Court’s In response this matter jurisdiction over not have does order, the amicus November its contesting Secretary, because tak- positions with the substantially agrees deci- to review courts jurisdiction other It asserts petitioner. veter- en affecting appointment sions fiduciary is a a federal appointment of fiduciaries, the U.S. asserted that has ans’ of bene- that affects matter has for Claims Appeals 511(a) and is therefore under section Secretary’s ac- fits to review jurisdiction principle long-standing argument fundamental petitioner also advances an avoid reach- chal- ... that courts refusal allow restraint of the lenge questions ing advance constitutional " We do process Lyng to a violation. deciding quoting amounts due necessity them.’ because, as dis- here reach that issue not Cemetery Associa- Protective Indian Northwest below, and caselaw are 1319, the statutes cussed tion, 99 108 S.Ct. 485 U.S. Bucklinger v. See dispositive case. in this (1988).). L.Ed.2d 534 (1993) ("It Brown, is '[a] 441 Vet.App. and, to review at the Board conse- his own behalf in this Court nor admin- quently, to this Court. istrative proceedings before VA. As the petitioner .does not challenge compe- VA’s Secretary’s Arguments

C. tency and that determina- primary argu makes two impact has no standing in this First, ments. he contends that this case is Court, the propriety competency of VA’s Brown, controlled Willis v. Vet.App. determination is before this Court and (1994). He asserts the Willis does not warrant further discussion. decision has applied by been a long line of standing cases proposition that this A. Standard for the Issuance Court is without to review the of the Writ Secretary’s appointment This Court has authority to issue ex an incompetent veteran-beneficiary. He traordinary jurisdiction, writs in aid of its further asserts that Willis was not affect potential jurisdiction, pursuant ed the U.S. Court of Appeals for the Act, 1651(a). All Writs See (Federal Circuit) Federal Circuit’s decision West, (Fed.Cir. Cox v. 149 F.3d 1363 Nicholson, (Fed. in Bates v. 398 F.3d 1355 1998). However, remedy “[t]he of manda Cir.2005). Second, the Secretary asserts one, mus ais drastic to be only invoked even if preclud review is not extraordinary situations.” Kerr v. U.S. ed, there can be no review if the statute in Court, Dist. 426 U.S. 96 S.Ct. question has no meaningful standard 2119, (1976); 48 L.Ed.2d 725 see also against which judge to agency’s exer Lamb v. Principi, 284 F.3d 1384 discretion, cise of citing Chaney, supra. (Fed.Cir.2002) (“ ‘[Extraordinary writs The Secretary concedes that section 5502 cannot be used as appeals, substitutes for does not prohibit judicial specifically re even though hardship may result from de view and does affect the of bene ” lay and perhaps unnecessary trial.’ (quot 511(a). fits as described in section

ing Bankers Holland, Cas.& Co. v. Life U.S. 74 S.Ct. IV. 98 L.Ed. ANALYSIS (1953))). Before the Court issue matter, As an initial the Court notes writ, three conditions must be satisfied: that VA’s competency determination is not (1) The must demonstrate that at issue. A fiduciary VA appointed will be he lacks adequate alternative means to if a beneficiary is determined to be incom- obtain relief, ensuring desired thus petent to handle VA benefits which he is that the writ is not used as a substitute for entitled. case, the instant petition- (2) the appeals process; er does not VA’s contest determination must demonstrate a clear and indisputable that he incompetent is to handle VA funds. right writ; (3) to the the Court Petitioner’s Memorandum of must Law at 6. convinced, be given circumstances, The Court observes that VA’s competency the issuance of the only writ is warranted. extends to a See veteran’s ability Cheney Court, handle U.S. VA Dist. benefits to which he U.S. 3.353(b)(1) 380-81, entitled. 38 C.F.R. 124 S.Ct. (stating 159 L.Ed.2d 459 (2004). the rating agency has propriety of a writ of manda determine competency purposes for mus of in- here turns on of whether surance benefits). and disbursement of we would have to review the The competency determination does not appoint particular decision to extend to petitioner’s ability to act on individual as a fiduciary to receive and (a) pay- for person Any certification of a veteran- on behalf benefits VA apply beneficiary to that of ment of benefits beneficiary. beneficiary’s as such person Regulatory Statutory and B. of this title shall section 5502 under Appointment Framework of— n made on basis Fiduciary aof (1) investigation by the or inquiry authority to Secretary derives person Secretary of the fitness § 5502. from 38 U.S.C. fiduciaries fiduciary for that benefi- as to serve investigation— ciary, inquiry such appears it Where beneficiary would be the interest of (A) to be conducted advance un- of benefits thereby, payment served certification; such by the Secre- administered any law der (B) to in- practicable, extent the benefi- directly to made tary may be with interview clude a face-to-face other or some a relative ciary or to person; such the use and benefit fiduciary for (C) in- practicable, extent dis- any legal regardless of beneficiary, report a credit copy of clude a beneficiary. ability part on the year one within person issued such Secretary, Where, opinion in the appoint- proposed the date of on behalf receiving funds ment; beneficiary acting Department certifica- evidence that adequate to make as of cases such a number fiduciary for person tion of that properly to conserve impracticable beneficiary is in the interest that persons the supervise or estates to (as beneficiary determined such beneficiaries, Secretary may re- the the Secretary regulations); under the in such payments future fuse to make that any bond furnishing of the prop- Secretary deem the cases as Secretary. the may be required er. investiga- (b) or any inquiry part As 5502(a)(1). au- The statute § (a), any under subsection person tion of a fiducia- appoint to Secretary thorizes the request information Secretary shall the that Secretary ry “it appears when person has that concerning whether beneficiary would be the the interest of under offense convicted been a fiducia- [by appointment of the served resulted law which or State Federal author- Secretary is thus ry].” Id. The year. than one for more imprisonment to the determination to make ized convicted has been person that If and, if he necessary fiduciary is a whether may cer- offense, Secretary the an such determines, determina- upon to act so only if the as a tify person the grant of is a basic 5502 tion. While section is an person the Secretary finds Secretary appoint to allowing the to act as person appropriate regulations fiduciaries, statutes and other the under beneficiary concerned for the quali- or entities the individuals determine circumstances. outline act as fiduciaries fied to 5507(a)-(b). Specifically, § U.S.C. when must Secretary follow process inqui- perform Secretary is required fiduciary. a appointing of an the fitness into investigation or ry may be individual before individual standards 5507 contains Section fiduciary. “[T]o as a in- serve certifying an certified Secretary to when follow Secretary is re- practicable,” fiduciary: extent qualified a dividual as quired to hold face-to-face interview with ciaries to the Veterans Service Center potential fiduciary, (VSCM) perform and to Manager office; at each regional § potential credit check on the fiduciary. provides 13.55 also a list persons who (C). 5507(a)(1)(B), § eligible U.S.C. are In all to serve instanc- as fiduciaries. Under es, § required 13.55 the VSCM can make conduct a determina- tions as to background person criminal who inquiry appoint- will be poten- ed legal custodian Also, tial beneficiary to the statute requires re- apply ceive and VA benefit adequate payments “for presented evidence be which the best interests of the beneficiary.” shows that the certification particular 13.58(b)(2)(i). C.F.R. regulation This individual particular as a beneficiary’s fidu- specifically that, states “[i]n absence of ciary is in the interest of beneficiary. special circumstances, person legal or Thus, the acknowledges statute that a entity to appointed legal custodian will showing must be made that certification of be the person or legal entity caring for a certain individual to handle the beneficia- having custody of beneficiary and/or or ry’s funds is “in the interest” of the benefi- beneficiary’s estate.” 38 C.F.R. ciary. Further, section 5507 allows the 13.58(a).3 expedite process of certi- The Secretary’s adjudication manual fying fiduciary in certain cases, identified provides guidance further person- including where individual under con- nel the field as to which individual or sideration for fiduciary certification is the entity as a fiduciary. The M21- parent of a minor beneficiary, spouse 1MR contains 22 pages specifically de- parent incompetent of an beneficiary, or scribing process to be followed when a person who has appointed been an in- appointing a fiduciary. M21-1MR, Part competent beneficiary’s fiduciary by a XI, Chapter E, Section 1-23. This sec- court of competent jurisdiction. 38 U.S.C. tion of the manual includes a list of stan- 5507(c). exceptions These show that the dards to be adhered to when making the only required is not to take the (2-E-12), and also contains beneficiary’s account, interests into but specific a paid statement fiduciaries that there is also an expedited process or a only should appointed when there is no preference for certain individuals with a qualified fiduciary willing to serve without close relationship to the beneficiary. (2-E-20). compensation The extant statu- While section 5507 specific states these tory and regulatory framework provides requirements, it specifies also that the Sec- guidance for the Secretary retary may promulgate require- further in the appointment fiduciary. On the 5507(a)(2). ments in regulation. 38 U.S.C. Court, record before the only docu- The Secretary has promulgated 38 mentation concerning the process VA used §§ C.F.R. 13.58, 13.55 alia, inter to to select Ms. as paid Horace fiduciary guide his own decision-making process in for Mr. Freeman a single e-mail and a this area. 13.55, Pursuant the Secretary VA report February dated 2010.4 A 3% delegated has his authority to appoint commission, fidu- to be out of paid petition- 3. While necessary not 5, 2010, to the Court’s April decision On response VA e-mailed its concerning petition, Congressman there is some evi- Sam Johnson's office after he dence inquired has veteran been cared into request at the matter supported by his veteran. The text father and his the e-mail sister for all stated: portions or years. of the last 30 Why appointed sister fiduciary: [sic] not years of during the last by a state court benefits, Ms. Hor- authorized for was er’s a the state year life. More than before his report concluded The ace’s services.5 conservator, appointed her the Sec who court family or friends has no veteran “[t]he act person named another as retary had in this case.” payee serve as are able to purposes veteran for fiduciary for the Memoran- December Petitioner’s disability compensation ensuring that VA Exhibit B. of Law dum entitled were to which he was payments Reviewability C. purposes and for his bene used for lawful that his exe Secretary asserts After the veteran’s Vet.App. fit. 6 at 434. a to select obligation cution of the (the death, veteran’s conservator Court, by any by this or not reviewable the deceased daughter) sought fees from January court. benefits order to cover veteran’s VA at 10-11. We dis of Law Memorandum incurred in her role as the costs she had agree. According state-designated conservator. seeking to be ly, appellant was Controlling Not Willis challenging the earlier named position, support fiduciary, but rather appointment of VA opinion that our makes the assertion payment expenses of funds to cover sought in this matter. How is Willis controlling in her role as state- incurred previously ever, a case that dealt with Willis was not father, conservator for her appointed fiduciary. Secretary’s appointment veteran. in Willis one of the appellant seeking with VA filing After claim appoint who had been daughters veteran’s father, veteran, from the deceased veteran’s such funds for her ed conservator years capacity for several (cid:127) has served in this Examiner made the decision The VA Field report large satisfactory retroactive noted the fact of the manner.” The based on payment were obtained that no character witnesses (cid:127) fiduciary and obtained, is a bonded Shelia Horace report based both and no credit necessary garner the estate will be able to “prior dealings with VARO Waco.” her protection (cid:127) time of the field exam was Sister—at the that, although the record 5. The Court notes family unemployed and none of the other disability the amount of com- does not reveal necessary estate members could offer petitioner cur- pensation payments that the qualify protection to month, recent rently each the most receives (cid:127) paid fiduciary is a Shelia Horace that a published VA indicate rate tables 20, 2011, Memoran- December Petitioner's deemed to dependents who is veteran without L. The also dum of Law Exhibit monthly com- is entitled to disabled 100% February report a VA dated attached $2,673. pensation in the amount of B, to Memorandum of labeled Exhibit his (effective Compensation Rate Tables Benefits petitioner's report This stated Law. 1, 2009), http://www.vba.va.gov/bln/21/ Dec. currently unemployed, his father sister was (last Rates/compOl.htm# FNB visited Mar. disabled, had limited and his brother-in-law Thus, 22, 2011). assuming current this is the required protection will be due to income and monthly compensation received amount of report The the veteran's assets. the size of $32,076 per petitioner, entitled to he is “Appointing a Paid Federal further stated: for her year, and Ms. Horace's commission appears Fiduciary legal to be as custodian Further, annually. $962.28 would be services meth- logical choice and least restrictive most large retroactive was awarded available.” No further statement od granted benefits. The payment when he was why any these individuals were made as to provided with infor- not been Court has petitioner’s' fiduciary. not fit to serve as re- Horace, whether Ms. Horace would mation as to report stated that she to Shelia As that award. commission from Fiduciary and ceive a recognized Paid Federal 3% is "a account, benefit which was denied extent that the panel commented on the RO, appealed the conservator to the jurisdiction appoint- Court’s to review the Board. The Board rendered a decision ment of a fiduciary, VA its discussion was claim, denying the conservator’s and the necessary dicta because it was not appealed conservator to the Court. The Court’s decision to affirm the Board’s deni- Court affirmed the Board’s decision that conservatorship al of fees. remaining divided the veteran’s benefits Darrow, Willis, In which was cited equally between the conservator-daughter distinguished power its to re- and the surviving daugh veteran’s other view decisions of the upon based ter. The Court noted that “the sole issue equitable relief from involving those on is whether [conservator- authority to award upon benefits based daughter] is entitled to conservatorship composed specific scheme ele- fees.” Id. at 435. The Court observed Darrow, 2 Vet.App. ments. at 304. That the conservator’s claim raised “the specifically ease dealt with matters under particular concurrent issue of whether VA equitable powers, codified appointments of fiduciaries are renewable 503(a). Darrow, in section the Secre- by this Court....” Id. The Court then tary granted equitable had relief to the the Secretary’s equitable powers discussed appellant in the amount of a 70% disability under 38 U.S.C. an example 503 as rating. appellant The disagreed with that review, discretion not rating sought in- rating have Derwinski, citing Darrow v. Vet.App. creased to 100%. The Court held that the (1992), then, somewhat ambigu grant of benefits under the Secretary’s ously, “or, here, added appointment equitable authority was distinct from a Willis, of a fiduciary.” Vet.App. at 436. grant of upon benefits based statutory en- panel Willis then went on to note titlement. is authorized to that, (1) it, in the case before exercise his discretion to award benefits if appointed the years VA five be he believes that such im- benefits were (2) death, fore the veteran’s since the claim properly withheld due to administrative for compensation brought by the conserva 503(a). error. 38 U.S.C. The Court tor-daughter for her services as a court- authority noted that the grant benefits appointed only conservator arose after the equity the basis of given death,

veteran’s fiduciary appointment Secretary personally and had not been del- decision the Secretary was not a matter Darrow, egated. 2 Vet.App. at 305. The at redetermination the RO level or at 7104(a), Court noted that section which Board, and, thus, the Court had no Board, defines the con- jurisdiction to review “as fined questions review “to ‘[a]ll a matter was not for Board decision.” ” 511(a).’ ... under section (quoting Id. Id. 7104(a)). Thus, the Court in today, On review it is not clear to the acknowledged Darrow Court whether panel the Willis was ob- grant equitable relief given had been serving that the VA decision to name a the Secretary and it possible was not fiduciary was categorically beyond ju- the Secretary’s Court to review the deter- or, risdiction of the Court in the alterna- mination of whether or not to exercise that tive, therein, that on the facts the time to authority. contest the selection of the VA long passed had objection without or NOD. The Court further notes that Willis dis- clear, however, What is is that tinguished itself from Darrow. While to this 5502 are Court’s placed the Sec- that Darrow noted Willis 511(a) §§ juris- its of 38 powers through application outside U.S.C. retary’s equitable short, diction, concluding Bates, dis- the Court’s In the Federal Circuit between a distinction cussion delineates of whether or held that a determination Willis, Vet.App. at Darrow. Willis an the certification of not to terminate Darrow, matter of the Secre- a mat- attorney practice before VA was was equitable powers tary’s exercise of his a law that affects the ter that arose “under appellant filed primary issue. 398 F.3d at 1361. provision of benefits.” decisions, a Secretary’s with the NOD The Federal Circuit determined issued, was of the Case Statement any refers to word “law” section Board, and the appealed matter that bears a “single statutory enactment to this appealed was then Board decision at number in the Statutes Public Law Willis, the Conversely, in Court. us, sec- Large.” Id. In the case before matter of selection of both that the noted Secretary, conceded is tion as and that fiduciary was never raised a VA section affecting matter benefits under an NOD with the the time to file 511(a).7 expand this Court’s Bates did long passed. since had but rather the Federal Circuit jurisdiction, Thus, was nev- fiduciary determination juris- Board’s the reach of the reiterated at redetermination er considered for any matters that affect the diction over manner, In this or the Board. Id. RO Thus, the of benefits. not reach acknowledged that did Willis by Bates and its broad defini- compelled of whether the selection jurisdic- of the word “law” to exercise if it subject to Board review fiduciary was by the Board tion over matter decided timely Consequently, Wil- appealed. purview of section that falls within precedential au- cannot be considered lis 511(a). Further, holding of under thority on this issue.6 Bates, compelled recog- Provides Precedential 2. Bates concerning a VSCM selection nize an NOD Guidance ,VAfiduciary. is not dis- our decision Willis While acknowledge All section parties hand, Federal the matter at positive of grants operative statute 5502 is the Nicholson, in Bates v. Circuit’s discussion fi- authority appoint Secretary the (Fed.Cir.2005), does 398 F.3d Response to the Secretary’s duciaries. guidance. The Federal Cir- precedential 4; Petitioner’s Memorandum Petition at Bates, concerning analysis cuit’s Further, parties all acknowl- Law at 17. Stat.2031, Act ch. a law that affects that section 5502 is edge that administra- our conclusion supports provision of benefits. to section the pursuant actions undertaken tive had accumu- non-precedential clutter that non-precedential deci- recognize that 6. We age. have relied on Willis sions of this Court lated with concerning precedent review of the Secre- tary's discretion to fidu- exercise of notes that the concurrence 7. The Court However, do not as those decisions ciaries. a narrower definition Bates favored binding precedent of this Court form Bates, (Bry at 1366 "law.” 398 F.3d word issue, we write for control this Willis does not result). son, J., We concurring in the observe precedential time with the first would also fit before the Court that the matter circumstance, it a result of this this issue. As narrow defini the concurrence's more into slate, clean that we write not on a is best said tion. one, attempting to erase some of on a new but 10; Memorandum of Law at Petitioner’s a. No Exclusive Grant Jurisdiction Memorandum of Law at 17. As the Court Supreme Court has made clear that assessment, concurs in this we also ac- judicial there is a strong presumption of any that knowledge Bates affirms law agency review over determinations. that affects of benefits is Holder, the matter of Kucana v. the Su 511(a), contemplated by section even in the preme noted again Court once that there Secretary’s argument face of the that a is “the ‘presumption favoring interpreta judicial tions of statutes allow review [to] matter is committed to his discretion. ” —U.S.-, of administrative action.’ Section 7104 states matter that 130 S.Ct. 175 L.Ed.2d 694 subject under section to a deci- Services, (quoting Reno v. Catholic Social Secretary subject sion of the to one Inc., 43, 63-64, 509 U.S. 113 S.Ct. Secretary. review on (1993)). 125 L.Ed.2d 38 At issue in Kuca- 7104(a); U.S.C. see Disabled American na was ability of the courts to review a Veterans v. Affairs, decision made Attorney General (Fed.Cir.2003). Thus, 327 F.3d 1339 sec- when the decision in had been tion 5502 interpreted preclud- cannot be placed Attorney within the General’s dis ing a veteran from challenging ap- Supreme cretion statute. The Court pointment Accordingly, if subject judi found the matter was disagrees the veteran with the cial review. In support finding, of this selecting fiduciary, manner of the veter- Supreme specifically stated that if may appeal that decision to the Board. Congress judicial wished to erect a bar to grants Section 7252 this Court exclusive review, then it easily could do so with jurisdiction to review decisions of the specific language to that effect. Id. at 837. Thus, Board. 38 U.S.C. the stat- Further, Supreme Court determined utory framework confirms this Court’s ul- if judicial a statute’s bar to review was jurisdiction timate over a decision made subject reasonably divergent interpreta Secretary pursuant to section 5502. tion, the statute should be read to favor “ ‘traditional understandings and basic Applicable 3. No Exception to principle[ ]: executive determinations Presumption Judicial ” generally judicial are review.’ Review (quoting Id. at 839 Gutierrez de Martinez statutory While the gives framework Lamagno, 515 U.S. 115 S.Ct. Board, Court, jurisdiction and thus this to 2227, 132 (1995)). L.Ed.2d 375 review pursuant matters decided to section Supreme Court also articulated this contends that presumption in favor of review in Court lacks because the stat- Fly, its decision Park 'N Inc. v. Dollar utes related to of fiducia- Inc., Park Fly, 469 U.S. 105 S.Ct. ries commit such decisions to the sole dis- (1985). 658, 83 L.Ed.2d 582 In that deci cretion of no sion, the Court stated: judicially renewable standards. As out- No matter how dedicated and how com- below, lined above and further discussed petent be, administrators possi- disagrees the Court and concludes that the bility always of error is present, espe- concerning appoint- framework cially nonadversary proceedings. For ment of presents VA fiduciaries no such that reason the normally assumes impediment jurisdiction. to our that Congress agency intended action to

415 jurisdiction, bar this Court’s specifically unless the judicial review statutory in and established a framework expressed clear contrary intent is appointment of fiducia- includes language. unambiguous and, thus, the Board’s ries within Thus, 212, the Su- Id. at 105 S.Ct. (see statutory grant of Court’s that, clear unless has made preme Court hold that the use of supra), Section C.l we it, is a prohibits there Congress explicitly “may” “ap- words such as permissive judicial in re- presumption favor of strong pears Secretary” do not constitute perhaps particularly point This view. Secretary’s language precluding the deter- appeals context of to this pertinent regarding mination Court, driving principle given being to the Board appealed from Congress to create the Court that led ultimately to this Court. adjudi- in the to ensure fairness a desire by pro- claims cation of veterans benefits Further, ample had Congress opportuni- safeguard of viding the additional ty to exclude section 5502 from this decision-making. agency of See review jurisdiction. pre- Section 511 was Court’s Nicholson, Legion American generally § 211. viously codified as 38 U.S.C. See 1, (summarizing 21 5 Vet.App. 102-83, (recodifying 388 Pub.L 105 Stat. Alan Cranston statements Senator 211 as section 511 without section Review Judicial support pas- Veterans’ Prior to the changes). substantive 100-687, Act, No. 102 Stat. Act Pub.L. Judicial Review sage of Court). (1988), 100-687, (VJRA), created the With which of 1988 PL Stat. mind, turn to examine the Sec- broad gave we section authority discretionary that were unreview- retary’s grant powers by any Passage court. of the VJRA fiduciaries. able appoint Court, pro- only created this but also above, Secretary’s As discussed exceptions vided a number of Secre- fiduciaries grant authority appoint authority. See 38 U.S.C. tary’s exclusive funds derives from section over veterans’ 511(b). § 5502(a). not contain That does judicial review. Other explicit rewriting an bar to completely than sec- Rather language of section 5502 contain provisions chose to retain the Congress Secretary has “dis- barring that indicates that the review of Secre- language broad im- involving suspected ex- significant cretion” over acts tarial decisions but added however, 511(b). There, fiduciary; Con- it added proper ceptions acts section by the judicial review exception did not use the word “discretion” gress Secretary’s of the use describing Federal Circuit when specifi- rulemaking authority. It also fiduciary under section his 5502(a). of matters under cally provided for review adopts Supreme Kucana, that, gov- §§ matters 1975 and from Court’s observation 38, and mat- by chapter 37 of title to bar this Court’s erned Congress had wished 72 of title by chapter so. ters covered jurisdiction, easily it could have done 7252(b)(“The this Court.8 Section See, which established e.g., 38 U.S.C. subjected decisions ratings the schedule of may not review ”). to review pursuant not made to section Congress As chose disabilities.... 7252(b), clearly which Congressional in 38 U.S.C. example deter- found 8. A further may not review schedu- exempt that the Court specifically certain mat- states mination to ratings under jurisdiction can be lar from this Court’s ters by and subsequently given discretionary authority, the Board this Court. been it can- statutory The intricate construction of this compelled authority not be to exercise congressional structure illustrates the in- unless there are sufficient standards to judi- tent to exclude certain decisions from govern authority when the must exer- be Congress cial others. Thus, review but include Chaney distinguishable cised. gave authority the Board broad to review presented from the issue here. Unlike the questions in a matter ... “[a]ll under sec- situation in Chaney, addressed here the ... to decision Secretary authority did exercise his to ap- Secretary.” U.S.C. Section point fiduciary. 511(a), governed by 5502 is a matter In further discussion of the action vs. Secretary, conceded and not exclud- distinction, inaction Supreme Court cit judicial ed from review. We therefore Bachowski, 560, Dunlop ed to 421 U.S. conclude that section 5502 falls within the (1975). 95 S.Ct. 44 L.Ed.2d 377 In congressional grant given to Dunlop, the Court determined that an

the Board to in this Court the VJRA. agency could compelled to take action b. Judicially Existence of statutory grant when its ex Renewable Standards plicitly compelled agency to take action Nevertheless, in a specific set of Secretary argued has circumstances. The in Chaney distinguished there are no ap- standards for the the facts of pointment that case from Dunlop that are those on capable clarity review. basis of the Secretary While the the standards that determined Chaney support agency cites to whether or not an position, was required his reliance on that to take action. misplaced. Similarly, case is In we dis Chaney, tinguish a group prison present matter from brought Chaney inmates against Chaney suit the basis that of Health and involved an effort (HHS) Human to compel agency Services to act seeking compel present and the (FDA) Drug the Food and matter involves review an agency’s Administration ac tion, to take enforcement action once undertaken. respect with See also Smith v. Derwinski, drugs injec- Vet.App. administered for lethal 278-79 Supreme (holding tions. The that a Board Court ruled favor determination as to entitled, whether a Secretary, “equity HHS veteran is stating “even conscience,” good where Congress affirmatively has not to waiver pre- of indebt review, cluded edness under review is not to be if is a discre had tionary the statute is drawn so that a one but that review of such court would waiver meaningful have no decisions against possible standard which Court is still to judge agency’s determine whether the exercise of discre- Board abused such discretion.). tion.” Chaney, 470 at U.S. 105 S.Ct. us, In the case before

However, in Chaney, agency had determined that a fiduciary necessary. was made a determination not to take action. course of the Supreme opinion Court’s fiduciary, indicated Secretary’s delegated au- there judicially were no thority reviewable exercised to an individ- standards that would allow a court to de- ual petitioner’s other than the sister termine agency whether the required petitioner’s handle the VA benefits. As to take Supreme action. The above, Court’s deci- statutory regulatory discussed sion indicates that when an agency provisions has govern process exist that shown, petitioner has and the As the appointing follow when Secretary must supra. conceded, As IV.B. that without the See Section has place Congress did form of extraor- intervention Court’s the Board’s beyond either framework relief, petitioner will not be dinary beneficiary may a jurisdiction, this Court’s Board, his claim to the pursue allowed to Secretary or not the challenge whether is left with the clear understand- authority in this exercised properly of manda- ing that the issuance writ beneficiary would be entitled Such a area. necessary protect potential is to its mus and, appeal on within VA to one review peti- If the jurisdiction over this matter. appeal an to this Court. subsequently, an to ultimately perfect appeal tioner does Board, will be entitled to a full he CONCLUSION V. light in of the and explanation, concludes that all conditions The Court or- regulatory provisions outlined a prior to the issuance of that must be met der, reasons or bases for the of the reaching In writ have been satisfied. 7104(d)(1). Board’s decision. 38 U.S.C. conclusion, observes the Court helped decision Bates Federal Circuit’s clarify, the Court To further because jurisdic- clarify the breadth of the Board’s provisions of sections concludes that any contem- Specifically, tion. regulations as well as the is to one plated by section statutes, provide those le- implement by and that appeal review on by which to gally meaningful standards to explicitly delegated is review Secretarial fiduciary, a appointment evaluate parties agree As all the Board. to petitioner would then be entitled authorizing the Sec- statutory framework Board appeal further final adverse fiduciary to handle YA retary appoint matter to the Court. decision on this falls incompetent veteran benefits for 511(a), the of section purview within the of the Accordingly, upon consideration petitioner is concludes that hereby foregoing, it is entitled to clearly indisputably February 16 and ORDERED of the VSCM to the Board the decision 18, 2011, supplement filed fiduciary.9 motions paid federal Benefits, fiduciary before the House Veterans’ testified notes that the named 9. The Court compensation Disability the VSCM to Assistance was authorized Affairs Subcommittee of the veteran’s entitled in the amount of 3% stated that VA’s and Memorial Affairs and 20, 2010, December benefits. Petitioner’s fiduciary program manages the estates of Law Exhibit B. There is no Memorandum of 110,000 net worth of veterans with a total com- that the veteran’s sister seeks assertion Wol- $3.2 Statement of Michael billion. See fiduciary. pensation as a See 38 for service 17, 2011, coff, http:// at March available 13.64(c) ("Commissions may not be C.F.R. veterans.house.gov/hearings/Testimony.aspx? acting ... close relatives authorized to TID=4423&Newsid=2291&Name=Michael fiduciary capacity on of the beneficia- behalf 26, 2011). (last April If all of visited Wolcoff extraordinary except circum- ry, stances.”). under paid authorized veterans had fiduciaries these necessary deci- While not to our benefits, pres- in the their to collect 3% right juncture, property of the at this sion case, $96 million ent this would amount by any clearly potentially veteran is affected fact, the Court notes fees. In payment from his benefits to a VAis authorized the maximum commission impact potential of VA's breadth of paid award a federal 4% property fiduciary program federal on this is enti- yearly to which the veteran benefits right expansive. Mi- On March 5502(a)(2). tled. 38 U.S.C. Wolcoff, Acting Under chael granted. amicus are It conservation of assets that con- his/her trols, is further not the source of the veteran’s in- come or payments. VA benefits well that the March ORDERED mo- portion be a minor of an overall estate. supplement tion to filed case, such a unnecessarily seems bur- is denied. It is further densome to separate establish a “trustee- ORDERED issue a ship” charge up the veteran to 4% of upon Statement Case based benefits for a that may trustee his/her petitioner’s December Notice of desired, wanted, or needed. Disagreement concerning regulations, While 38 C.F.R. a Upon perfection federal of 13.58, §§ 13.55 and were drafted after the petitioner’s appeal, will (UPC) Uniform Probate Code was enacted certify petitioner’s 1969, they were drafted before the UPC Board. widely adopted and regulations these LANCE, Judge, have not been concurring: they amended since were V, adopted in 1975. Article Part of the fully agree While I with opinion powers UPC concerns durable attorney. case, I separately simply write to note The widely UPC is now adopted many and majority regulations VA con- states, most, if not now recognize statutory cerning fiduciary appointments are from powers durable of attorney wherein the Secretary may 1975 and the up- wish to authority granted survives the incom- regulations date these better petence grantor. of the The Durable Pow- guidance regional offices and to the Attorney er of Act has adopted also been Board on review of their decisions. While by most states. power Under a durable present case does not the ideal fact (veteran) attorney, grantor would have pattern, important it is to note that VA attorney-in-fact selected his or her to act regulations do not cover the situation should, on his or her behalf. That desire where a power durable of attorney —one in my opinion, given deference in the that is statutorily authorized under state fraud, misfeasance, absence of proven law and signed when the veteran compe- malfeasance or incompetence the death or tent —is in place. regulations also fail attorney-in-fact. of the to address the circumstance a where court having jurisdiction in the veteran’s By way domi- comparison, I highlight would cile has established a conservatorship for the more sophisticated structure for the veteran, an incapacitated person. in place proceedings These court comprehen- are within the Security Social Administration (SSA). sive and all interested parties right SSA, VA, have a unlike has an order to be represented during and heard preference in a selecting payee, 20 C.F.R. proceedings. Many jurisdictions require (2010), § 404.2021 a and list of consider- an annual accounting by the conservator ations to be taken into account when se- require a bond. It lecting would seem payee, § a 20 C.F.R. 404.2020 (2010). in the circumstance where such a In its preferences, order of SSA sophisticated employed structure is “legal guardian lists the ... who has cus- conservatorship established, it tody beneficiary” would be of the prefer- as its first unnecessary 404.2021(a)(1). VA use its resources to ence. 20 C.F.R. Two of involve separate itself agency action. the considerations to be taken into account It should be the welfare of “[a]ny legal the veteran and are person, saving up or institution has to the veteran to 4% agency, organization, of his or her that is beneficiary,” customarily charged by act on behalf of the 20 C.F.R. benefits 404.2020(c), potential VA-appointed fiduciary. general, veter- “[w]hether custody beneficiary,” of the 20 ans will be better served if payee has their funds— 404.2020(d). recognizes regardless managed by C.F.R. SSA source—are single individual can legal relationships regulations manage its who them in place intelligently upon familiarity the more detailed structure that is based a real regulations helps within the SSA to ensure with the veteran’s situation and needs. beneficiary’s best interests are actually served.

Regardless of what the de- do, system cides to would benefit the explicitly relationships VA to address the elsewhere, recognized thereby that are

Case Details

Case Name: William E. Freeman v. Eric K. Shinseki

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Apr 26, 2011

Citation: 24 Vet. App. 404

Docket Number: 10-1462

Court Abbreviation: Vet. App.