Joe Whitcomb
Karen R. Shorette, the legal guardian of veteran Charles R. Shorette, filed a petition for a writ of mandamus and a motion for a preliminary injunction against Denis McDonough, the Secretary of Veterans Affairs. Shorette is seeking to compel the VA to reinstate her as representative payee for her husband, address complaints about the current fiduciary, and release withheld funds. The Court of Appeals for Veterans Claims denied the motion for an injunction, but granted the petition for a writ of mandamus in part. Charles R. Shorette served in the U.S. Air Force for 26 years and receives monthly VA compensation.
In 2008, Shorette was admitted to the Marion VA Medical Center (VAMC) with multiple sclerosis and dementia. Karen R. Shorette was certified as her husband's spouse payee and granted letters of guardianship over his person and estate. In 2018, the VA suspended Shorette's benefits and appointed a new payee without explanation. Shorette's attorney demanded an explanation or reinstatement as payee, but received no response.
The Court of Appeals for Veterans Claims granted the petition for a writ of mandamus in part, ordering the VA to provide an explanation for the change in payee. The VA claims that Karen Shorette misused her husband's funds, which led to the appointment of a new payee. Shorette's attorney challenges the misuse determination and argues that the VA has withheld over $81,000 in payments. In 2021, the VA determined that Shorette did not misuse her husband's funds, but did not reinstate her as payee.
The VA argues that the request to change the payee must come from the veteran, not the spouse. Shorette's attorney argues that the misuse allegation was the sole reason for removing her as payee, and requests reinstatement and reimbursement. Karen Shorette, the legal guardian of veteran Charles Shorette, filed a petition for a writ of mandamus and a motion for a preliminary injunction against the Secretary of Veterans Affairs. Shorette argues that the VA violated the order of guardianship by conducting an interview with her husband in her absence. Shorette requests that the VA issue a written decision regarding her entitlement to be reinstated as representative payee, address her complaints about the current fiduciary, and release the withheld funds.
The Secretary of Veterans Affairs argues that Shorette lacks standing to bring this action, and that the reinstatement of a former fiduciary is not a specific right afforded to the beneficiary. The court denies the motion for an injunction, but grants the petition for a writ of mandamus in part. Shorette argues that she has standing as the veteran's legal guardian and spouse, and that she is entitled to the same notice and due process as the veteran. Shorette asserts that she has not been inactive or passive since the November 2018 decision, and has made multiple attempts to communicate with the VA.
The petitioner argues that the VA's refusal to recognize her guardianship powers is a denial of the veteran's right to appeal the appointment of a fiduciary. The Secretary counters that this matter is best characterized as the petitioner's attempt to have herself reinstated as the veteran's VA fiduciary. The Court discusses its jurisdiction and the limitations of the All Writs Act (AWA), noting that the AWA does not extend the Court's jurisdiction.
The Court also discusses the petitioner's standing to appeal the November 2018 fiduciary appointment decision, with the Secretary conceding that a veteran's legal guardian has standing to initiate an appeal on behalf of the veteran. The Court further discusses the appealability of fiduciary decisions, with the Secretary asserting that VA's refusal to appoint the petitioner as a successor fiduciary is not appealable, but that the appointment and removal of a fiduciary are appealable to the Board and the Court.
The Court discusses the requirements for establishing standing, emphasizing that the petitioner must demonstrate an injury in fact that is concrete, particularized, and actual or imminent. The Court references the Freeman case, which established that section 5502 is a law that affects the provision of benefits and that the selection of a fiduciary is not a discretionary matter. The Court outlines the three conditions that must be met before a writ of mandamus can be issued: the petitioner must lack alternative means to attain relief, must demonstrate a clear and indisputable right to the writ, and the Court must be convinced that the writ is warranted.
The Court discusses the VA's amendment of its regulations for the fiduciary program, which clarifies the rights of beneficiaries and the roles of the VA and fiduciaries. The Court references 38 C.F.R. § 13.30, which outlines the rights of beneficiaries in the fiduciary program, including the right to appeal the appointment of a fiduciary and to request a disbursement of funds. The Court discusses the regulations governing the appointment of a successor fiduciary, which can occur if the VA or a court determines that the fiduciary misused or misappropriated VA benefits.
The Court references 38 C.F.R. § 13.600, which outlines the types of fiduciary matters that can be appealed to the Board. The Court discusses the order of preference for selecting a fiduciary, with the beneficiary's spouse and a court-appointed guardian ranking higher than a paid fiduciary. The Court outlines the responsibilities of a fiduciary, which include managing funds in the best interests of the beneficiary and their dependents.
The Court discusses the process for investigating and determining misuse of VA benefits by a fiduciary. The Court references 38 C.F.R. § 13.20, which outlines the information that must be included in a written decision regarding a fiduciary matter. The Court discusses the process for initiating appellate review of a fiduciary decision.
The Court outlines the reasons why a fiduciary may be removed, including if the beneficiary no longer requires fiduciary services or if removal is in the beneficiary's best interest. The Court discusses the issue of standing and jurisdiction, noting that the veteran has rights that he could seek to enforce on his own behalf.
The Court questions whether the petitioner, as the veteran's spouse or former fiduciary, has her own right to challenge VA's actions or whether she, as the veteran's legal guardian, may seek to enforce the veteran's rights. The Court discusses the definition of a Notice of Disagreement (NOD) and the requirements for filing one.
The Court analyzes the primary issues presented, including whether the petitioner's actions reflected an attempt to appeal VA's decision to appoint a new fiduciary or an attempt to appeal VA's refusal to appoint her as a successor fiduciary.
The Court concludes that the petitioner, as the veteran's legal guardian, is authorized to act on his behalf in proceedings before VA and this Court.
The petitioner argues that she has exhausted all administrative remedies and that she and the veteran are suffering financial harm as a result of VA's failure to restore her as payee of the veteran's benefits.
The petitioner provides evidence that she has been the veteran's guardian since 2009 and that VA's decision to appoint a new fiduciary was based on unsubstantiated allegations. The Court concludes that the petitioner is entitled to a writ of mandamus to compel VA to issue an appealable decision regarding the appointment of a new fiduciary. The Court also notes that the petitioner has been acting in her capacity as the veteran's legal guardian throughout the proceedings.
The petitioner requests that the Court compel VA to address her complaints about the veteran's current fiduciary violating the fiduciary agreement. The Court denies this request, noting that the petitioner has not provided evidence that she asked the fiduciary to pay expenses or submitted a misuse report. The Court also questions whether it has jurisdiction over this matter.
However, the Court does grant the petitioner's request for a writ of mandamus to compel VA to issue a Statement of the Case in response to her Notice of Disagreement. The Secretary concedes that the VA failed to serve the petitioner as the veteran's legal guardian, instead sending the decision to Mr. Shorette, who was deemed incapable of handling his affairs.
The petitioner's attorney contacted the VA multiple times from 2018-2021, but the VA refused to recognize the petitioner's authority as the veteran's legal guardian. The petitioner's November 29, 2018 letter is determined to be an NOD expressing disagreement with the VA's decision to appoint a new fiduciary and remove the petitioner as the veteran's fiduciary.
The petitioner requests an injunction to prevent the VA from making changes to the veteran's benefits, citing concerns of fraud, waste, and abuse. The Secretary argues that the petitioner has not shown a likelihood of success on the merits, irreparable injury, or ripeness.
The Court denies the motion for an injunction, but grants the petition for a writ of mandamus in part, ordering the Secretary to issue an SOC based on the petitioner's November 29, 2018 NOD. The petitioner's motion for an injunction is denied. The petitioner's correspondence from August 28, 2022 is filed as a supplement to the petition.
The petition for a writ of mandamus is granted in part and dismissed in part. The Secretary is ordered to issue an SOC responsive to the petitioner's November 29, 2018 NOD. The case discusses the definition of a "fiduciary" according to VA regulations. The case references the circumstances under which VA will require a fiduciary to submit an accounting. The fiduciary hub's actions are called into question for not acknowledging the veteran's diagnosis. The case defines the term "Hub Manager."
The case references changes to section 7105 as part of the Veterans Appeals Improvement and Modernization Act of 2017.The Court does not address the Secretary's contention that a beneficiary in the VA fiduciary program has no right to appeal VA's decision on a request for a successor beneficiary. The case notes that the Secretary did not comply with section 5502(b) when suspending payments to the fiduciary.