Excerpt from decision below:
“Unfortunately, the facts of this case support the “growing consensus outside of VA that the fiduciary system is broken.” Solze v. Shinseki, 26 Vet.App. 118, 127 n. 13 (2013) (Lance, J., dissenting in part). The Court’s concern about VA’s fiduciary system extends to the agency’s ability to thoroughly and impartially investigate misuse allegations raised by incompetent veterans. The Court is particularly troubled that, despite the Secretary’s assertions, there is little evidence that VA thoroughly considered the multitude of circumstantial evidence indicating serious abnormalities and perhaps criminal malfeasance in the relationship between the petitioner and the Froikin firm. Pet. at Exhibit 4; Resp. 1 at Exhibits 3-8, 11-22; Resp. 2 at Attachments 72-73; Reply at Exhibit 1, Attachments 29, 46-47, 49.
===========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2651
JAMES MIMMS, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
AND
STEVEN KELLER
AND
R. DEAN SLICER, RESPONDENTS.
Before PIETSCH, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On September 4, 2012, the petitioner, James Mimms, submitted through
counsel a petition
for extraordinary relief in the form of a writ of mandamus requesting that
the Court (1) compel the
Board of Veterans’ Appeals (Board) to immediately issue a decision
addressing his appeal of a VA
regional office (RO) determination that he is incompetent to handle the
disbursement of funds; (2)
order that the Board issue no decisions in cases with a higher docket
number than the one assigned
to his case until it has decided his case; (3) compel VA to complete an
investigation into possible
misuse or misappropriation of funds by his VA-appointed fiduciaries; and (
4) compel VA to return
funds that were misused or misappropriated by his fiduciaries to him.
Petition (Pet.) at 1-2, 19.1
On September 26, 2012, the Court ordered the Secretary to respond to the
petitioner’s
arguments. The Secretaryresponded on October 26, 2012. The Court, however,
determined that the
Secretary’s arguments and attachments were not satisfactory and, on
December 10, 2012, it ordered
The petition page numbers cited here and throughout this order are
supplied by the Court. As it did in a prior
order in this case, the Court reminds the petitioner that, pursuant to
Rules 21(b)(1) and 32(d) of the Court’s Rules of
Practice and Procedure, page numbers are required on all petitions
submitted to the Court.
1
the Secretary to submit a supplemental response. The Secretary submitted
his second response on
February 11, 2013. Soon thereafter, the petitioner asked that he be given
an opportunity to reply to
the Secretary’s submissions. The Court granted his request, and on March
11, 2013, he submitted
his reply.
The Court has the authority to issue extraordinary writs in aid of its
prospective jurisdiction
pursuant to the All Writs Act. 28 U.S.C. § 1651(a). 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 the Court may
issue a writ: (1) the
petitioner must lackadequate alternative means to attain the desired
relief, thus ensuringthat the writ
is not used as a substitute for the appeals process, (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). For
the reasons that follow, the Court concludes that extraordinary relief is
not warranted in this case.
I. BACKGROUND2
The petitioner served on active duty in the U.S. Army from January 1968
until March 1970,
including a period of service in Vietnam. Pet. at Exhibit 1. In June 1997,
the RO granted the
petitioner a 100% disability rating for post-traumatic stress disorder and
proposed that he be found
incompetent to manage his affairs. Id. at Exhibit 2. In July 1997, VA
informed the petitioner that
it had determined that he is incompetent to manage his affairs and that a
fiduciary would be
appointed to receive and administer his VA benefits on his behalf. Id. at
Exhibit 3.
According to the petitioner’s wife, she was the petitioner’s first
fiduciary. Petitioner’s March
11, 2013, Reply (Reply) at Exhibit 1, Attachment 2. However, the
petitioner’s wife stated, with “no
notice or explanation,” she was removed as fiduciary and Colleen Doyle of
Chillicothe, Ohio, was
named as her replacement. Id. Sometime thereafter, VA assigned an
agencyrun byStuart and Roger
Froikin to serve as the petitioner’s fiduciary. Id. The petitioner’s wife
stated that she and her
husband attempted to determine what became of VA benefits sent to Ms.
Doyle, but they were told
by VA that “no such person exists.” Id. The petitioner’s wife stated that
she and her husband asked
VAto sendthem information concerninganysavings that might
haveaccumulatedfromunspentVA
benefits, but were “told this information is confidential.” Id.
In April 2007, Roger Froikin responded to a VA inquiry regarding an
excessive fee taken for
his services as the petitioner’s fiduciary. Secretary’s February 13, 2013,
Response (Resp. 2) at
Attachments 73. According to his statement, the Froikin firm was owed
about $1,200 per period in
fiduciary fees for periods running from February 2005 until January 2006,
January 2006 until
December 2006, and December 2006 until December 2007. Id. Mr. Froikin
justified a $3,218.48
fee taken during the last of these three periods by referring to it as a ”
catch-up” for fees that were
owed but not taken during the previous two periods. Id.
The Court has compiled the factual background recorded here from
statements made by the parties and from
the numerous documents attached to the parties’ pleadings.
2
2
On June 8, 2007, the petitioner was charged with harassing Stuart Froikin
during telephone
conversations. Reply at Exhibit 4. On June 20, 2007, the petitioner’s
attorney contacted VA and
requested that a copy of annual accountings and all other paperwork
associated with the petitioner’s
fiduciaries be forwarded to him. Pet. at Exhibit 4. The attorney stated
that the petitioner believes
that “his VA funds are not being spent on his behalf by his fiduciary and
payee,” that his fiduciary
is retaining as compensation more of the petitioner’s benefits than the
amount allowed per year for
that purpose, and that his fiduciary is using VA benefits “for their own
personal purposes.” Id. The
attorney requested that “all of the individuals involved in the managing
of this veteran’s money who
are VA employees or who have been appointed by the VA including R. L.
Froikin, Stuart Froikin
and James Boardax be replaced immediately.” Id. The attorney stated that
the petitioner further
alleged (1) that he has not been provided “with sufficient funds on which
to survive and meet his
ongoing monthly needs,” (2) that his wife visited the Froikins’ office,
saw the petitioner’s account
on a computer screen, and noticed a record of two checks for $1,000 made
payable to one of the
Froikins for “undisclosed reasons,” (3) that the petitioner’s wife was
told that one of the Froikins had
used $2,000 of his own moneyto paythe petitioner’s bills because the
petitioner’s account “had been
short of money,” and thus the checks were made out to reimburse those
expenditures, and (4) that
the Froikins are “saving substantial amounts of money out of each check
for a rainy day, rather than
giving it to the [petitioner] for ongoing living expenses.” Id. The
petitioner’s attorney asserted that
these facts indicate that the petitioner’s fiduciary inappropriately co-
mingled the petitioner’s funds
with his own. Id.
In September 2007, an unidentified VA employee “left a detailed message”
with the
petitioner’s attorneyinforming him “that I conducted a review of the [
petitioner’s] records held at his
payee’s office and I found no evidence to substantiate the allegations.”
Resp. 2 at Attachments 22.
In January 2008, VA contacted Roger Froikin and asked him to explain
certain funds reported on
an accounting statement for the period from January 2006 until December
2006. Id. at Attachments
72. Mr. Froikin explained that no room and board or rent payments were
made on the petitioner’s
behalf during that period because the petitioner was staying at his mother-
in-law’s home. Id. Mr.
Froikin stated that $990 listed under room and board on the accounting
statement was actually spent
on a storage unit “that the [petitioner] no longer has.” Id.
The Froikin firm remained the petitioner’s fiduciary until the end of 2008.
Secretary’s
October 26, 2012, Response (Resp. 1) at Exhibits 3-10. At that time, the
firm submitted an account
of the petitioner’s finances for the period from December 2007 until
December 2008. Id. at Exhibits
3-8. In an “exit statement,” a Froikin employee accused the petitioner and
his wife of having a
chronic illegal drug habit, of “making false claims to get control of more
funds,” and of involvement
in “possible domestic violence issue[s].” Id. at Exhibits 9. The
relationship between the firm and
the petitioner, the employee wrote, deteriorated as a result of a “change
in VA rules.” Id. The
employee expressed extreme distaste for VA’s handling of the petitioner’s
case, and lamented that
the Froikin firm was removed as fiduciary.3
Id. at Exhibits 10.
The materials before the Court also include an undated letter from Roger
Froikin to the petitioner. Reply at
Exhibit 1, Attachment 29. In it, Mr. Froikin informed the petitioner that
his VA benefits payment “is yours when we pay
it out to you or on your behalf. It is not yours until then as a matter of
law passed by Congress.” Id. Mr. Froikin told
3
3
In November 2008, VA conducted a field examination for the purpose of
establishing First
Corp Services as the petitioner’s new fiduciary. Id. at Exhibits 13-22.
According to the report from
that examination, a change in fiduciaryresulted from a “[m]anagement
decision due to investigation
bythe Office of the Inspector General.” Id. at Exhibits 15. The field
examiner stated that there “have
been numerous issues concerning the use of VA Benefits and how they have
been used over the
years. At this time junction it is hard to determine what actually
occurred.” Id. at Exhibits 18. The
field examiner indicated that an error by the Froikin firm resulted in an
overdraw of funds from the
petitioner’s bank account. Id. The field examiner next noted that an
insurance invoice dated
November 2004 reveals that Roger Froikin, while serving as the
petitioner’s fiduciary, sold the
petitioner a life insurance policy. Id. at Exhibits 19. The field examiner
stated that “[i]f this is true
it seems there was a direct conflict of interest.” Id.
According to the field examiner, Mr. Froikin and his associates told the
petitioner that they
“had absolute power” over his funds and caused him to believe that they ”
had guardianship over
him.” Id. at Exhibits 20. He also alleged that Froikin employees “had
represented themselves as
attorney[s] to the Child Support Enforcement Agency on several occasions
and other . . . legal
issues.” Id. Neither the petitioner nor his spouse could recall requesting
that a life insurance policy
be purchased, the field examiner stated. Id. The field examiner confronted
Froikin employees with
the insurance invoice, but they could not “remember it nor gave an
explanation as to why this was
beingdone.” Id. The field examiner recommended referring the matter to the
Office of the Inspector
General. Id.
In December 2008, VA requested that the Froikin firm explain evidence of
excessive
fiduciary fees, payments for automobile costs, unauthorized payments for
Christmas expenses, an
excessive postage payment, and expenditures for “household,” all dating to
the period from
December 2007 until December 2008. Id. at Exhibits 11. On December 17,
2008, Roger Froikin
responded in a brief e-mail. Id. at Exhibits 12. He explained that the
fiduciary fees were
“appropriate and as instructed – made up of fees for previous period
plus current.”4
Id. All other
the petitioner that almost all of his VA benefit was spent each month. Id.
He stated: “As much as you seem not to
understand it, there is no endless supply of money for you.” Id. Mr.
Froikin next noted that Stuart Froikin had been
threatened by the petitioner “in your phone call and it is recorded and we
saved the recording. Not too wise, James.”
Id. Mr. Froikin stated that he would call the police if the petitioner
made additional threats. He wrote: “I suggest [you]
do not. I think you know me well enough to know I do not joke about such
things.” Id.
In a second undated letter (supplied by the petitioner’s wife), Mr.
Froikin alleged that the field examiner
responsible for handling the petitioner’s case had (1) been abusive and
threatening both to Mr. Froikin and veterans, (2)
“lied to veterans and slandered payees and guardians,” (3) demonstrated no
concern for the welfare of veterans, (4) had
given orders like a “little dictator,” (5) demonstrated that he thinks he
can “lie with impunity,” and (6) “order[d veterans]
around and if they don’t comply, abuse[d] them.” Id. at Exhibit 1,
Attachment 47. Mr. Froikin mentioned the petitioner
and his wife, calling them a “nice couple.” Id. The field examiner, Mr.
Froikin stated, was repeatedly abusive to the
petitioner. Id. Finally, Mr. Froikin asserted that the field examiner is
not qualified for his job. Id.
This excuse is problematic. Other evidence, already cited above, indicates
that Mr. Froikin gave a similar
excuse for an excessive fee for the period ending December 2007. Resp. 2
at Attachments 73. The evidence, therefore,
reveals that Mr. Froikin took excessive fees in back to back accounting
periods and in both cases explained that the
4
4
fees, he stated, were approved by VA. Id. No documents were submitted in
support of these
assertions. A VA official has stated that Mr. Froikin’s responses were
found to be “satisfactory.”
Id. at Exhibits 1.
On May 1, 2009, the petitioner requested that a new fiduciary be assigned
to him. Id. at
Exhibits 37. In June 2009, the petitioner was charged with contacting VA
and making threats in
contravention of a prior court order. Reply at Exhibit 4. In a November
2009 decision, the RO
determined that the petitioner continued to be incompetent to handle the
disbursement of VA funds.
Pet. at Exhibit 6.
According to the petitioner’s representative, on March 31, 2010, a VA
employee accused the
petitioner of abusing VA funds. Pet. at 4. On April 1, 2010, the
petitioner’s attorney contacted VA’s
fiduciary unit to report that the petitioner is “dissatisfied with his
current VA appointed fiduciary”
and that he wanted a copy of his fiduciary file to be provided to him. Pet.
at Exhibit 7. On April
7, 2010, the petitioner contacted First Corp and reported that his online
cable statement revealed that
his cable provider had not received any payment for services during the
period from October 2009
until March 2010. Reply at Exhibit 1, Attachment 7. According to the
petitioner, the only payments
recorded on the statement were made directly by the petitioner, and
multiple late payment notices
and fees were posted to the account. Id. An April 26, 2010, document
reveals that VA refused to
provide the petitioner’s attorney with any information from the
petitioner’s fiduciary file. Pet. at
Exhibit 8. Also in April 2010, VA benefits payments issued in the
petitioner’s name on January 1,
2009, and January 30, 2009, were canceled. Resp. 2 at Attachments 51.
According to the petitioner’s attorney, the petitioner’s storage facility
received no payment
in April 2010, returned a payment check in May 2010 because the amount
payable on the check was
insufficient to cover both the missed April 2010 payment and the May 2010
fee, charged the
petitioner a late fee, issued a notice stating that it would open the
petitioner’s unit and sell the
contents if he did not take action, returned a second payment check as
unacceptable, and stated that
it would now only accept cash, a money order, or a cashier’s check as
payment for the petitioner’s
unit. Reply at Exhibit 1, Affidavit Page 6.
On May 8, 2010, VA contacted First Corp because it had not received an
accounting of the
management of the petitioner’s VA benefits that was due in December 2009.
Reply at Exhibit 7.
VA warned First Corp that the accounting was “seriously overdu,” and that
failure to comply “may
be interpreted as misuse.” Id. It appears that an accounting was
eventually received. Reply at
Exhibits 8-9. On May 12, 2010, VA informed the petitioner that it had in
its possession a number
of canceled checks revealing that First Corp had submitted payment on his
cable bill. Reply at
Exhibit 1, Attachment 14. The petitioner’s field examiner stated that the
petitioner and his wife
“need to call the cable companythemselves” to determine whythe payments
were not posted to their
account. Id. On May 17, 2010, the petitioner informed VA that his storage
facility returned a check
sent by First Corp to pay for his unit and issued a “Final Notice of Lock
Cutting and Intent to Sell.”
excessive fees were taken because a regular fee was not taken during the
previous accounting period. Id. VA has not
demonstrated that it is aware of this discrepancy.
5
Replyat Exhibit 1, Attachment 17. The petitioner requested that First
Corp resolve the error and pay
any late fees posted to the petitioner’s account. Id.
According to May2010 documents, an angryexchange between the petitioner’s
attorneyand
the VA field examiner resulted in the field examiner complaining to the
attorney’s supervisor,
requesting that the attorney never contact him again, and threatening to
file a “harassment claim”
against the attorney and his employer. Reply at Exhibit 1, Attachment 19.
The parties agree that
during the exchange in question, the petitioner’s attorney stated that he
would report the field
examiner’s behavior to police. Id. The field examiner and the attorney
differ on whether this
statement was made in malice or in jest. Id.
On May 18, 2010, Central Ohio Payee was appointed to serve as the
petitioner’s new
fiduciary. Pet. at Exhibit 10. However, the June 1, 2010, installment of
the petitioner’s VA benefits
was sent to First Corp. Resp. 2 at Attachments 51. In a June 7, 2010,
letter to VA, the petitioner’s
attorneyasserted that the petitioner’s fiduciaries “have not
beenprovidingforthe[petitioner’s wife].”
He requested that an apportionment of the petitioner’s benefits equal to a
dependent benefit be paid
directlyto the petitioner’s wife, and he argued that a fiduciarycommission
was inappropriatelytaken
from the money designated for the petitioner’s wife and should be returned.
Pet. at Exhibit 11. On
June 14, 2010, the petitioner’s attorney sent a letter to Central Ohio
Payee. Pet. at Exhibit 12. In it,
he alleged that First Corp was continuing to make payments on the
petitioner’s behalf even though
it was no longer the petitioner’s fiduciary, that the rent payment made by
First Corp for June 2010
was incorrect, that the petitioner’s cable was turned off on June 12, 2010,
that the petitioner’s cable
provider reported that it had not been receiving payments from the
petitioner’s fiduciary, that the
petitioner and his wife were not receiving the full amount of their
spending allowance, and that a
vehicle payment was no longer necessary because the debt on the vehicle
was satisfied. Id.
On June 17, 2010, the petitioner’s attorneysent a letter to VA in which he
objected to the VA
field examiner’s decision to authorize a monthly payment of $5 to the
petitioner’s storage facility to
compensate the facility for issuing a monthly bill to the petitioner’s
fiduciary. Pet. at Exhibit 13.
The attorney also requested that VA investigate a document indicating that
the petitioner’s January
2009 benefit check was voided because it was not cashed, and he noted that
the petitioner’s field
examiner refused to discuss the potential existence of an Office of the
Inspector General report
addressing malfeasance bythe petitioner’s fiduciary. Id. The
attorneyrequested that anydocuments
in the possession of the Inspector General’s Office regarding an
investigation into the petitioner’s
fiduciary be forwarded to him. Id. On June 25, 2010, the petitioner was
formally informed that
Central Ohio Payee had been appointed to serve as his fiduciary. Resp. 2
at Attachments 55. The
petitionerwas asked to forward his new fiduciaryhis rental payment address,
storagebillingaddress,
and “copy of TV subscription service.” Id.
On June 28, 2010, the petitioner’s attorney contacted VA to report that
the petitioner’s cable
bill had not been paid. Pet. at Exhibit 14. The attorneynoted that the
petitioner’s fiduciarymayhave
sent payment checks to an incorrect address. Id. Also on June 28, 2010,
the VA field examiner sent
the petitioner’s attorneycopies of canceled checks madeout tothe
petitioner’s cableserviceprovider.
Reply at Exhibit 1, Attachment 25. The field examiner suggested that the
attorney contact the
6
provider to research anypayments that were not applied to the
petitioner’s account. Id. Later on that
date, the petitioner’s attorney informed the field examiner that the
petitioner’s cable provider was
unable to find record of payments made on the dates the checks were issued.
Id. The attorney also
stated that it appears that the canceled checks had been sent to the wrong
address. Id.
On July 1, 2010, the petitioner’s attorney contacted VA to report that the
petitioner’s cable
service had not resumed and that he had learned that First Corp had mailed
payment checks to the
wrong branch office of the petitioner’s service provider. Pet. at Exhibit
15. The attorney stated that
he had attempted to inform VA of this discovery by telephone, but was ”
hung up on.” Id. The
attorney stated that the petitioner’s cable service provider has no record
of a number of payments
that, according to First Corp accounting statements, were drawn from the
petitioner’s VA benefits
and made to the provider. Id. The provider informed the petitioner’s
attorney that if it discovered
that his payments had indeed been received by the incorrect branch office,
they would be applied to
his account. Id. The attorney asserted that, while this action would
likely rectify the petitioner’s
cable service interruption, the episode “raises serious questions about
the competencyof [First]Corp
Services and the oversight of VA’s fiduciary office.” Id. The attorney
noted that First Corp sent 19
payments to the incorrect address, but did not correct its error even
though the petitioner’s cable
billing statements clearly indicated that payments were not applied to his
account. Id. The attorney
asserted that, even though he complained about the situation to VA, no
efforts were made to correct
the fiduciary’s error. Id. The attorney stated that, because the
petitioner’s bill was not properly paid,
the petitioner used “money intended for other purposes,” to keep his cable
service active, and that
he had incurred late fees and a reactivation fee. Id. He requested that
those funds be reimbursed.
On July 8, 2010, the petitioner’s attorney informed VA that the
petitioner’s cable service
provider had discovered definitive evidence that several payments for the
petitioner’s cable service
were sent to an incorrect branch office. Pet. at Exhibit 16. A substantial
credit on the petitioner’s
account resulted, and no monthly payment to the service provider was
required for some time. Id.
The petitioner’s attorney stated that the funds allocated for a cable
payment should be used to pay
for service on a truck the petitioner wanted to give to his son, and that
any additional funds should
be added to the petitioner’s spending account until the credit was
exhausted. Id.
Also on July 8, 2010, the petitioner’s attorney informed VA that he had
learned that the
petitioner’s January 2009 benefit check was canceled because it was never
cashed. Reply at Exhibit
1, Attachment 33. He asked that the funds disbursed in the January 2009
check be restored to the
petitioner. Id. On July 9, 2010, VA informed the petitioner’s attorney
that the cable credit would
be applied toward the petitioner’s cable subscription and would not be
refunded to the petitioner.
Pet. at Exhibit 17. A VA official stated that VA could not authorize the
requested spending on the
petitioner’s truck and that funds saved during the months when a cable
payment was not required
“will continue to accumulate and will not be added to the monthly spending
budget.” Id. Finally,
VA stated that the petitioner’s storage fee would not be paid unless a
bill is presented. Id. On July
9, 2010, the petitioner’s attorney objected to VA’s decision not to allow
the petitioner access to
money saved as a result of a credit on his cable subscription. Pet. at
Exhibit 18. The attorney again
noted that the petitioner was forced to use his own “spending money or
money obtained from other
sources to maintain” cable service during the period when First Corp was
mailing his payment to an
7
incorrect address. Id. The attorney stated that his letter should be
considered a Notice of
Disagreement with VA’s decision not to allow accumulated funds to be spent
on the petitioner’s
truck. Id. The attorney also again noted that the petitioner’s storage
facility required a $5 fee for
issuing a bill. Id. He asserted that a bill is not necessary, that the
petitioner objects to his “funds
being misused to pay for an unnecessary bill to be issued,” and that his
letter should be construed as
a Notice of Disagreement with VA’s decision to require a bill. Id.
On July 12, 2010, the VA field examiner contacted the petitioner’s
attorney and insinuated
that the failure of the petitioner’s fiduciary to correctly pay his cable
bill was the petitioner’s fault
because the “federal fiduciary can only make payments to the acc[oun]t
numbers and address[e]s
supplied by the beneficiary.” Reply at Exhibit 1, Attachment 35. On July
12, 2010, the petitioner’s
attorney informed VA that the petitioner’s storage facility had not
received a monthly payment and
as a result had assessed a late fee and denied the petitioner access to
his unit. Pet. at Exhibit 19. The
attorney also objected to “[VA’s] consistent blaming of the [petitioner]
for the failures of the
fiduciary and the VA Fiduciary Unit.” Id.
On July 14, 2010, the petitioner’s attorneycontacted VA and again argued
that the petitioner
should be “refunded anyfees that had to be repaid” as a result of First
Corp’s failure to send his cable
payment to the correct address. Pet. at Exhibit 20. The attorney also
objected to VA’s requirement
that the petitioner “produce an inventory of the contents of [his] storage
unit before you will
authorize additional payments for the storage unit.” Id. The attorney
complained that this request
“seems clearly retaliatory and intended to humiliate the [petitioner] and
provide an excuse to stop
paying for the storage unit.” Id.
On July14, 2010, VA authorized the RO to reissue the uncashed 2009 benefit
checks. Reply
at Exhibit 1, Attachment 33. In August 2010, Central Ohio Payee received a
benefits payment on
behalf of the petitioner that was double its usual size. Resp. 2 at
Attachments 51. A July 15, 2010,
facsimileindicatesthatthepetitioner’s attorneyattempted to help the
petitioner avoid the $5 monthly
charge for preparation of a paper bill by his storage facility by crafting
a Letter of Understanding to
be signed by a representative of the storage facility and submitted to VA.
Reply at Exhibit 1,
Attachment 41. On July 16, 2010, the petitioner’s representative informed
VA that the July rental
fee for the petitioner’s storage unit had not been paid. Reply at Exhibit
1, Attachment 41. The
representative further informed VA that the petitioner would be “happy to
accept responsibility” for
paying the rental fee for his storage unit. Id. On July 28, 2010, the
petitioner’s attorney was
contacted by Kris Wolf, a VA fiduciary “coach.” Reply at Exhibit 1,
Attachment 44. Mr. Wolf
thereafter reported that the rental fee for the petitioner’s storage unit
was paid for both July and
August. Id.
On September 2, 2010, Mr. Wolf reported that an agent from VA’s Office of
the Inspector
General stated that he had contacted both the petitioner and the Froikin
agencyto discuss a potential
misuse of the petitioner’s VA benefits resulting from the purchase of a
life insurance policy on the
petitioner’s behalf. Resp. 2 at Attachments 69. According to Mr. Wolf, the
agent stated that his
office “did not pursue a formal investigation into this particular issue
because the matter was already
several years in the past and there had been so much water under the
bridge by then that [the
8
petitioner] had some credibility issues.” Id. The agent stated that his
office “definitely do[es] not
have paperwork on this matter since they declined to pursue a formal
investigation.” Id.
On September 9, 2010, Mr. Wolf issued a memorandum relaying findings he
made after
conducting a review of misuse allegations in the petitioners case. Resp. 1
at Exhibits 36-37. Mr.
Wolf reported that in “late 2008/early 2009” two agents at the Office of
Inspector General “declined
to pursue a formal investigation” into the life insurance policy sold to
the petitioner by Roger
Froikin. Id. at Exhibits 36. Regarding excessive fiduciary fees retained
by the Froikin agency, Mr.
Wolf stated that the e-mail response from the firm “was deemed acceptable
and the matter was not
pursued any further.” Id. Mr. Wolf noted that “fiduciary commissions
typically are not considered
misuse unless they are found to be excessive and the fiduciary refuses to
refund the excess upon
demand.” Id. at Exhibits 37. Mr. Wolf described the insurance policy
purchase as “a less than arm’s
length transaction and appears to be a conflict of interest.” Id. However,
he determined that “this
is an instance of very poor judgment, not misuse.” Id. Mr. Wolf noted that
the policy “has value”
to the petitioner, and that the premium was reasonable. Id. He stated that
“[t]rying to sort out who
requested or did not request this policy nearly four years ago appears
almost irresolvable at this
juncture.” Id. Finally, Mr. Wolf stated that the difficulties the
petitioner experienced with his cable
service resulted from “some degree of mismanagement on the part of the
payee.” Id. Mr. Wolf
concluded, however, that there was no evidence of misuse. Id.
In September 2010, the petitioner’s wife was appointed to serve as his
fiduciary. Pet. at 9.
In November 2010, Roger Froikin allegedly telephoned the petitioner. Reply
at Exhibit 1,
Attachment 46. He and the petitioner “talked about the truck. [The
petitioner] told him he would
never forgive him about the truck. One of the Froik[i]ns was there when
they purchased it. They
needed to purchase it to move furniture for the Froik[i]ns.” Id.
On September 23, 2010, the RO issued a Statement of the Case reaffirming
its November
2009 decision that the petitioner remains incompetent to manage his VA
benefits, and on September
29, 2010, the petitioner appealed to the Board. Pet. at Exhibits 23, 24.
The petitioner asked that his
appeal be certified to the Board as quickly as possible. Id. at Exhibit 24.
On October 29, 2010, the
RO informed the petitioner that his appeal had been certified to the Board.
Id. at Exhibit 25.
On December 13, 2010, the petitioner submitted argument to the Board. Id.
at Exhibit 27.
On January 22, 2011, the Board informed the petitioner that his appeal had
been docketed and that
it would “consider appeals in the order in which they are placed on the
docket, subject to certain
exceptions.” Id. at Exhibit 28.
According to a January 2011 court document, the petitioner alleged that
the Froikin agency
agreed to make child support payments on his behalf, but then failed to do
so, and that he was
arrested and his driver’s license was suspended as a result. Reply at
Exhibit 4. Froikin agency
employees, the petitioner alleged, refused to pay other bills as well, and
continually refused to
provide an accounting of how the petitioner’s VA benefits were spent. Id.
In the same document,
the petitioner alleged that the VA field examiner hung up on him and that
another VA employee
informed him that he “was not allowed to call the VA and then he
terminated the call.” Id. These
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calls, the petitioner alleged, were the basis for allegations of
telephone harassment brought against
him. Id.
In March 2011, the petitioner was found not guilty of telecommunications
harassment. Id.
On July 14, 2011, the petitioner’s attorney contacted Mr. Wolf to request
that VA provide him with
accountings of expenditures of the petitioner’s VA benefits by First Corp
and Central Ohio Payee
and verification that “two monthly compensation checks that were not
initially cashed by the
fiduciaryand on which payment was stopped bythe VA, have been reissued
either to the [petitioner]
or a fiduciary.” Pet. at Exhibit 26. The attorney also requested that VA
provide him with the results
of an investigation into the misuse of the petitioner’s funds addressing
late fees charged by the
petitioner’s storage facility, disconnection and reconnection fees
assessed by the petitioner’s cable
provider, overdraft charges on back accounts “to which only the fiduciary
had access,” payments on
an insurance policy sold by Roger and/or Stuart Froikin, inappropriate
fees charged by the Froikins,
and inappropriate expenses paid by the Froikins. Id.
In July 2011, the petitioner’s representative made attempts to learn the
status of the
petitioner’s appeal of the RO’s competency determination. Id. at Exhibit
29. The representative
resumed his attempts in August 2012 and, after exchanging several e-mails
with a VA employee, he
obtained the petitioner’s docket number. Id. at Exhibit 31.
According to a March 30, 2012, letter sent by the petitioner’s attorney to
VA, Mr. Wolf
agreed to conduct an investigation into the petitioner’s allegations
against his prior fiduciaries and
“take some specific steps to assure that the [petitioner] received funds [
he was] denied access to
because of mistakes by the former fiduciaries.” Pet. at Exhibit 30. The
attorney stated that he had
not conversed with Mr. Wolf since July 2011 and that Mr. Wolf had not
returned his telephone calls.
Id. The attorney renewed his assertion that an investigation should be
conducted. Id.
In February 2013, the petitioner’s attorney learned that the life
insurance policy purchased
by Roger Froikin on the petitioner’s behalf was issued in November 2002,
premium payments were
made in November 2002, December 2003, and February2005, the policylapsed
in November 2004,
and no funds were distributed from the policy when it lapsed. Reply at
Exhibit 1, Attachment 49.
II. ANALYSIS
A. Competency Appeal
In his petition, the petitioner requested that the Court compel the Board
to immediatelyissue
a decision addressing his appeal of the RO’s determination that he is
incompetent to manage his VA
benefits and to order the Board to decide no cases with a higher docket
number than the one assigned
to his case until the Board considered his appeal. Pet. at 1, 19.
In his February 2013 response, the Secretary reported that the Board
issued a decision
addressing the petitioner’s appeal on January 16, 2013. Resp. 2 at 2. The
Secretary attached a copy
of the Board decision to his response. Id. at Attachments 1-10. In the
January 2013 decision, the
10
Board remanded the petitioner’s case for additional development. Id.
This Court adheres to the case-or-controversy jurisdictional restrictions
found in Article III
of the United States Constitution. Mokal v. Derwinski, 1 Vet.App. 12, 15 (
1990); see Bond v.
Derwinski, 2 Vet.App. 376, 377 (1992) (“When there is no case or
controversy, or where a once live
case or controversy becomes moot, the Court lacks jurisdiction”). Because
part of the extraordinary
relief the petitioner sought in this case was Court action to compel the
Board to issue a decision
addressing his competency and the Board has now issued that decision, the
petitioner has obtained
the relief he sought, and thus on this point a controversy no longer
exists. The Court concludes,
therefore, that the portion ofthepetition
requestinganordercompellingacompetencydetermination
by the Board is now moot and should be dismissed. See Mokal, 1 Vet. App.
at 15 (holding that,
because the petitioner sought a writ of mandamus to compel the RO to issue
a Statement of the Case
and a Statement of the Case was issued while a decision on the petition
was pending, the
“controversy surrounding this petition is moot . . . the Court no longer
has jurisdiction and the
petition is dismissed”);Chandler v.Brown,10Vet.App.175,178(1997)(percuriam
order);Thomas
v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order) (a petition should
be dismissed when “there
is no longer a case or controversy for the Court to resolve).
The Court notes that the petitioner presented argument challenging the
substantive findings
in the Board’s January 2013 decision in his March 2013 reply, and that he
asked the Court to order
that he “be restored as his own payee.” Reply at 8-9, 26. Consideration of
this additional argument
by the Court would constitute a usurpation of the adjudicatory process now
underway, and it is not
an appropriate use of the Court’s power to grant extraordinaryrelief. See
Lamb v. Prinicipi, 284 F.3d
1378, 1384 (Fed. Cir. 2002) (“‘[E]xtraordinary writs cannot be used as
substitutes for appeals, even
though hardship mayresult from delayand perhaps unnecessarytrial.'” (
quoting Bankers Life &Cas.
Co. v. Holland, 346 U.S. 379, 383 (1953))). The Court will therefore not
consider the petitioner’s
additional arguments at this time. The petitioner maypursue his case
through the usual adjudicatory
process and he retains the right, should the Secretary prove unresponsive
to the Board’s remand
instructions, to file a later petition with the Court. See DiCarlo v.
Nicholson, 20 Vet.App. 52, 56
(2006) (citing Costanza v. West, 12 Vet.App. 133, 134 (1999)).
B. Misuse Allegations
The petitioner requested that the Court compel the Secretary to
investigate misuse or
misappropriation of his VA benefits by his fiduciaries and to return
misused or misappropriated
funds to him. Pet. at 1-2, 19. In his first response, the Secretary,
relying heavilyon statements made
by Mr. Wolf, asserted that the petitioner’s complaints of misuse had been
appropriately considered
by VA officials. Resp. 1 at 3, 5-6.
In its December 2012 order, the Court noted that, pursuant to the VA
Benefits Adjudication
Procedure Manual Rewrite (M21-1MR), VA has made it clear that it is agency
policy to respond
promptly to misuse allegations and to record all decisions based on those
allegations in writing.
December 10, 2012, Order at 6-7. The Court also noted that VA policy
indicates that referral of a
misuse case to the Office of the Inspector General is a formal process and
must be done in writing.
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Id. at 7. The Court concluded that there was no indication in the
evidence before it at that time that
“VA took any action on [the petitioner’s misuse] allegations in a manner
consistent with the M21-
1MR provisions . . . prior to Mr. Wolf’s September 2010 memorandum.” Id.
at 7-8. The Court
furtherdeterminedthatMr.Wolf’sreview of the petitioner’s allegations
wasnot in conformancewith
the procedure outlined in the M21-1MR, and that “[t]here is no evidence
before the Court indicating
that VA has ever employed its stated procedure to investigate the
petitioner’s allegations.” Id. at 8.
The Court thus requested a further response from the Secretary. Id. at 8-9.
In his February 2013 response, the Secretary asserted that “VA took timely
and appropriate
action on each of those occasions where [p]etitioner expressed concern
with his VA-appointed
fiduciary.” Resp. 2 at 10. The Secretaryfurther argued that the
petitioner’s “complaints of purported
misuse were timely reviewed and addressed by VA” as required by the M21-
1MR, and, “on each
occasion, it was determined that misuse of benefits was not substantiated
by the evidence of record.
There were no missing funds and the VA fiduciaries had effectively
executed their duties on behalf
of [p]etitioner.” Id. at 11-12. The Secretary supported his assertions by
submitting a memorandum
prepared by an attorney and signed by VA officials addressing the
petitioner’s arguments and the
Court’s concerns. Id. at Attachments 11-21. In his reply, the petitioner
made a number of
evidentiary observations, and asserted that the evidence “establishes that
VA appointed fiduciaries
misused . . . VA benefit[s].” Reply at 26. He urged the Court to reinstate
his misused benefits and
the commissions paid to his fiduciaries during periods of misuse. Id.
A brief review of the background information recorded by the Court above
reveals a history
of relationships between the petitioner, his fiduciaries, and VA officials
that have been generally
dysfunctional and often poisonous. An example characteristic of this
assessment can be found in
evidenceindicatingthatatelephoneconversationbetween VA and the
petitioner’s attorneydevolved
into a maelstrom of hostile accusations and open threats. Reply at Exhibit
1, Attachment 19.
Unfortunately, the facts of this case support the “growing consensus outside of VA that the fiduciary system is broken.” Previous DocumentSolzeNext Document v. Shinseki, 26 Vet.App. 118, 127 n. 13 (2013) (Lance, J., dissenting in part). The Court’s concern about VA’s fiduciary system extends to the agency’s ability to thoroughly and impartially investigate misuse allegations raised by incompetent veterans. The Court is particularly troubled that, despite the Secretary’s assertions, there is little evidence that VA thoroughly considered the multitude of circumstantial evidence indicating serious abnormalities and perhaps criminal malfeasance in the relationship between the petitioner and the Froikin firm. Pet. at Exhibit 4; Resp. 1 at Exhibits 3-8, 11-22; Resp. 2 at Attachments 72-73; Reply at Exhibit 1, Attachments 29, 46-47, 49.
The Court’s suspicions and concerns, however, are not adequate reasons to grant extraordinary relief. See Cheney, supra. For the reasons stated below, the Court concludes that it is procedurally and jurisdictionally precluded from employing the “drastic”
remedy of a writ of mandamus. Kerr, 426 U.S. at 402.
First, the Secretary argued that the petitioner “has not shown that the potential jurisdiction of the Court will be frustrated” if a writ of mandamus is not issued. Resp. 1 at 5. The Court agrees.
A writ of mandamus may only be issued if it is in aid of the Court’s
prospective jurisdiction, which
12
in general means that the reliefa petitioner seeks must concern a matter
before the Secretarythat may
be adjudicated by the Board and eventually reviewed by the Court. 28 U.S.C.
§ 1651(a); FTC
v. Dean Foods Co., 384 U.S. 597, 603 (1966) (the power to issue writs ”
extends to the potential
jurisdiction of the appellate court where an appeal is not then pending
but may be later perfected.”);
Cox v. West, 149 F.3d 1360, 1364 (Fed. Cir. 1998). The question in this
case is whether the outcome
of a misuse investigation is a matter that the Board may consider on
appeal. In Freeman v. Shinseki,
24 Vet.App. 404, 414 (2011), this Court held that the appointment of a
fiduciaryis a matter that may
be challenged before the Board and thus is within the Court’s prospective
jurisdiction. The Court’s
decision, however, did not extend to other fiduciary matters, and the
petitioner has not met his
burden of demonstrating that a misuse decision by the Secretary may be
appealed to the Board and
later reviewed by the Court. See Cheney, 542 U.S. at 380-81; Cox, 149 F.3d
at 1364; Freeman,
24 Vet.App. at 415. Because the petitioner has not convinced the Court
that a misuse allegation is
within its prospective jurisdiction, it will not grant extraordinary
relief.
Next, even if a challenge to a misuse review is within this Court’s
prospective jurisdiction,
the petitioner has not demonstrated that he is entitled to the relief he
seeks. The Secretary argued
in both of his responses that the petitioner’s misuse allegations have
been reviewed and been found
to be without merit. Resp. 1 at 6; Resp. 2 at 13. These reviews, according
to the Secretary, include
(1) Mr. Wolf’s September 2010 statement; (2) an October 25, 2012,
statement prepared byMr. Wolf
as a supplement to the Secretary’s first response; (3) the January 14,
2013, attorney’s memorandum
prepared as a supplement to the Secretary’s second response; (4) the
allegation review alluded to in
a September 2007 VA document; and (5) various “timely and appropriate
action[s]” taken by VA
“on each of those occasions where [p]etitioner expressed concern with his
VA-appointed fiduciary.”
Resp. 1 at 3, 6; Resp. 2 at 3, 10-13.
The Court will accept the Secretary’s argument that he has provided the
petitioner with
misuse reviews.5
Thus, it appears that the relief the appellant sought in his petition has
been
provided to him. See Mokal, Thomas, and Chandler, all supra; Pet. at 1-2,
19. To the extent that
the petitioner’s petition constitutes an objection to the adequacy of
those misuse reviews, the Court
notesthatthereis noevidence
thatthepetitionerhassubmittedaNoticeofDisagreementchallenging
VA’s misuse decisionsandthus no evidence that he has attempted to put the
agency’s appeals process
into motion. Had he done so and the Secretary refused to act on his appeal,
then extraordinary relief
potentially would have been warranted. See Costanza, 12 Vet.App. at 134 (
extraordinary relief
warranted if a delay by the Secretary in processing a claim is of such
length that it “amounts to an
arbitrary refusal to act”). However, because the evidence indicates that
the petitioner has not yet
challenged the Secretary’s misuse determinations, he has not demonstrated
that he has exhausted all
available administrative remedies, and extraordinary relief is not
warranted. See Cox, 149 F.3d at
1364-65 (“the court correctly held that a writ of mandamus was not
warranted because Cox had yet
As the Court mentioned above, the petitioner shifted tactics in his March
2013 reply. Instead of resuming the
argument raised in his petition that the Court should order that a misuse
investigation be provided to him, he engaged
the January 2013 reviewer’s statement and the other evidence supplied by
the Secretary and argued that the Court should
find that misuse occurred in his case. Reply at 1-7, 9-26. The Court
interprets this as a concession that VA has reviewed
his misuse allegations.
5
13
to file a [Notice of Disagreement]”); Cheney, 542 U.S. at 380-81.
The Court notes that it continues to harbor the concerns it expressed in
its December 2012
order. In his March 2013 reply, the petitioner raisedmanysimilar concerns
alongwith his arguments
challenging the findings made by the author of the January 2013 memorandum.
Reply at 1-7, 9-26.
However,havingacceptedtheSecretary’s interpretation oftheworkproductofhis
departmentatface
value, the Court concludes that its earlier statements and the
petitioner’s arguments are immaterial
in the current setting because they apply to the adequacy of misuse
reviews, which is a topic to be
addressed during an appeal of those reviews if one occurs. If the
petitioner files a Notice of
DisagreementchallengingtheSecretary’s misuse determinations
andtheSecretaryrefusesto process
his appeal, then the petitioner is free to submit another petition to the Court. See DiCarlo, supra.
At this point, however, a writ of mandamus is not warranted.
Upon consideration of the foregoing, it is
ORDERED that the portion of the petition requesting the Court to compel the Board to issue
a decision addressing the petitioner’s competency is DISMISSED. It is further
ORDERED that the portion of the petition requesting that the Court compel the Secretary to
complete an investigation into the behavior of the petitioner’s
fiduciaries is DENIED.
DATED: June 12, 2013
BY THE COURT:
CORAL WONG PIETSCH
Judge
Copies to:
Hugh F. Daly, Esq.
VA General Counsel (027)
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