Freeman: Appealing the Appointment of a Fiduciary
William E. Freeman v. Eric K. Shinseki, Opinion Number 10-1462, decided April 30, 2011 concerns a veteran’s request for a writ of mandamus directing the VA accept the veteran’s NOD with the appointment of a federal fiduciary.
The veteran disagreed with who was appointed as his fiduciary and wanted to appeal the decision to the BVA. However, the VA took the position that the determination of a fiduciary is solely within the discretion of the VA and is neither afforded an appeal to the BVA nor review by the Courts.
The Court noted the Supreme Court has made clear that unless Congress explicitly prohibits judicial review, there is a strong presumption in favor of it. Id. at *14. It then found no such explicit prohibition and directed that the BVA accept his NOD.
Judge Lance wrote a concurring opinions saying that VA regulations regarding fiduciary appointments are outdated and do not account for newer probate laws that authorized durable powers of attorney and conservatorships for veterans. He suggested the regulations need to be re-written to take into account and use these laws so as to make the VA system easier rather than harder to navigate.
Decided by Judges Hagel, Moorman and Lance.
