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NO. 12-2651 JAMES MIMMS, PETITIONER,
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
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 Secretary responded 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.
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 lack adequate alternative means to attain the desired relief, thus ensuring that 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 agency run by Stuart 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 VA to send them information concerning any savings that might have accumulated from unspent VA 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.
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 money to pay the 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 attorney informing 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
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 fiduciary resulted from a "[m]anagement decision due to investigation by the 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 being done." 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
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 company themselves" to determine why the 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.
Reply at 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 May 2010 documents, an angry exchange between the petitioner's attorney and 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 attorney asserted that the petitioner's fiduciaries "have not been providing for the [petitioner's wife]." He requested that an apportionment of the petitioner's benefits equal to a dependent benefit be paid directly to the petitioner's wife, and he argued that a fiduciary commission was inappropriately taken 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 attorney sent 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 by the petitioner's fiduciary. Id. The attorney requested that any documents 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 petitioner was asked to forward his new fiduciary his rental payment address, storage billing address, 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 attorney noted that the petitioner's fiduciary may have sent payment checks to an incorrect address. Id. Also on June 28, 2010, the VA field examiner sent the petitioner's attorney copies of canceled checks made out to the petitioner's cable service provider. Reply at Exhibit 1, Attachment 25. The field examiner suggested that the attorney contact the 6
provider to research any payments 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 competency of [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 attorney contacted VA and again argued that the petitioner should be "refunded any fees 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 July 14, 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, facsimile indicates that the petitioner's attorney attempted 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 agency to 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 9
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 fiduciary and on which payment was stopped by the 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 February 2005, the policy lapsed 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 immediately issue 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 of the petition requesting an order compelling a competency determination 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, 10 Vet.App. 175, 178 (1997) (per curiam 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 extraordinary relief. 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 may result from delay and perhaps unnecessary trial.'" (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 may pursue 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 heavily on 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. 11
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 M211MR provisions . . . prior to Mr. Wolf's September 2010 memorandum." Id. at 7-8. The Court further determined that Mr. Wolf's review of the petitioner's allegations was not in conformance with 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 Secretary further 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 evidence indicating that a telephone conversation between VA and the petitioner's attorney devolved 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." 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. 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 relief a petitioner seeks must concern a matter before the Secretary that 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 fiduciary is 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 by Mr. 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 notes that there is no evidence that the petitioner has submitted a Notice of Disagreement challenging VA's misuse decisions and thus 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.
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 raised many similar concerns along with his arguments challenging the findings made by the author of the January 2013 memorandum. Reply at 1-7, 9-26. However, having accepted the Secretary's interpretation of the work product of his department at face 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 Disagreement challenging the Secretary's misuse determinations and the Secretary refuses to 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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