In The

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

William L. Evans, )
Dorothy J. Evans, and )
Carolyn S. Stump, ) No. ___________
Petitioners, )
) Petition For Extraordinary
v. ) Relief in the Nature of a
) Writ of Mandamus
Eric K. Shinseki, )
Secretary of Veterans Affairs, )
)
Thomas J. Murphy, Director of )
Compensation and Pension Service, )
)
Nicholas Miller, Staff Attorney, )
Indianapolis VA Regional Counsel, )
)
R. Dean Slicer, Fiduciary Manager, )
Indianapolis VA Regional Office, )
)
and )
)
Ena Lima, Veterans Service Center )
Manager, Indianapolis VA Regional )
Office, )
Respondents. )

Pursuant to the All Writs Act (“AWA”), 28 U.S.C. § 1651(a), and the Court’s

Rule of Practice and Procedure 21, Petitioners William L. Evans, Dorothy J. Evans, and

Carolyn S. Stump petition the Court for extraordinary relief in the nature of a writ of

mandamus. Extraordinary relief is compelled in this matter because the Secretary’s

illegal actions now threaten the financial destruction of the Evans family, their health,

and possession of their home. Undersigned counsel has made repeated written and verbal

pleas for relief to responsible VA officials, up to and including the C&P Director. The
Secretary’s only action has been to seek recoupment of funds Ms. Stump expended on

medical treatment for her father. At the same time, she is nearing financial ruin from

paying her father’s expenses out of her personal funds because the Secretary schemes

with the current fiduciary to withhold payment for failure to comply with illegal,

inconsistent, and punitive conditions. A writ of mandamus is thus appropriate and

necessary to force the Secretary to prevent the total destruction of Petitioners’ lives.

Summary of the Petition

When Petitioner Evans became seriously ill in February 2009, he asked his

daughter, Petitioner Stump, to become his guardian for medical decision purposes. Mr.

Evans desired a medical guardianship because he was suffering numerous serious health

conditions, including Alzheimer’s, and wanted someone he knew and trusted to direct his

medical care if he could not. Mrs. Evans, his wife of over 60 years, could not serve

because she faced many serious medical conditions herself. Ms. Stump was, therefore,

the logical choice to carry out his healthcare wishes because she was not only his

daughter, but a registered nurse who had long taken care of her elderly parents.

In attempting to carry out her father’s wishes, Ms. Stump contacted the

Indianapolis VA regional office for assistance. Instead of directing Ms. Stump to the VA

Medical Center where she could obtain a simple form for appointment as her father’s

medical guardian, the Secretary’s employees directed Ms. Stump to request appointment

as a “federal fiduciary” over her father’s finances. The Secretary’s employees then used

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the medical information that Ms. Stump provided to have Mr. Evans declared

“incompetent” and thus in need of the federal fiduciary that they created.

Ms. Stump agreed to serve as the federal fiduciary because she mistakenly

believed that she could continue to manage her parents’ finances as she had done for over

a decade without complaint. The Secretary’s employees moved quickly to dispel the

notion that a federal fiduciary had any responsibility or authority to actually look out for

the beneficiary’s interests. VA instead quickly made clear that Mr. Evans’s interests,

health, and welfare carried no weight.

The Secretary’s employees literally appeared at the Evans’s door and within an

hour mandated an inflexible budget based not on Mr. or Mrs. Evans’s needs or desires,

but on “saving” an arbitrary amount from the monthly VA benefits for Mrs. Evans's

future needs. The Secretary’s employees strictly prohibited spending any amount of

monthly benefits on “emotional spending” – even for medical treatments. Thus, the

Secretary’s employees transformed a family enjoying the twilight of a veteran’s life into

a nightmare of financial crises and uncertainty.

Ms. Stump, however, courageously continued acting in the best interests of her

father. Trained as a nurse, not an accountant, Ms. Stump also attempted to comply with

the Secretary’s byzantine and outdated funds request and financial reporting

requirements. The Secretary’s employees, however, ridiculed her efforts and demanded

that she conform her actions to VA’s arbitrary dictates rather than her father’s interests.

In other words, the Secretary’s employees explicitly prohibited any expenditure that

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would add any value, meaning, or purpose to Mr. Evans’s remaining life. As to Mrs.

Evans, the Secretary’s employees just ignored her, as they did every Indiana law

regarding the powers and authority of a spouse and attorney-in-fact.

Unhappy with Ms. Stump’s actions to provide medical treatment and simple

comforts to her ill 80-year-old father, the Secretary’s employees removed her as the

federal fiduciary – a position she had not originally sought, nor been allowed to properly

perform. The Secretary has now threatened legal action against Ms. Stump unless she

remits over $20,000.00 in funds the Secretary now alleges she “misused” as “emotional

spending.” Thus while Ms. Stump is under legal threat and exhausts her personal savings

to pay her parents’ bills, the Secretary allows tens of thousands of dollars of her father’s

benefits to pile up in the very bank that refuses to pay Mr. Evans’s bills. Meanwhile, the

Secretary’s employees banter back and forth in email about the “fun” this case provides

them.

To be clear, Petitioners do not challenge that Mr. Evans is suffering from medical

conditions that make him incompetent to handle his own finances. What Petitioners do

challenge is the Secretary’s deliberate, arbitrary, and destructive actions in a case where

none of the harms the fiduciary program is intended to prevent ever existed or were

threatened – but have now been created by the Secretary. Petitioners also challenge the

Secretary’s willful disregard of legal authority under an effective Power of Attorney,

State Court order, and spousal rights under the laws of the State of Indiana, as well as the

arbitrary “expiration” of due process that the Secretary uses to shield his employees from

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challenges to wrongful, harmful, and legally baseless decisions. Petitioners also challenge

the right of senior VA officials to knowingly turn their backs on documented and harmful

actions by their subordinates for which they know or should know are without legal basis.

This Court thus must act, and quickly, to prevent the Secretary and his willfully

blind officers from further ruining the lives of people who, when undisturbed by VA

employees, were seeking only to enjoy the final days of a veteran’s life.

I. Precise Relief Sought

A. A writ of mandamus ordering the Secretary to cease and desist from any action to

seek money from Petitioner Stump and voiding, reversing, and vacating the Secretary’s

finding of misuse by Petitioner Stump.

B. An order declaring that the Secretary’s disregard of the powers granted in the

executed Durable Power of Attorney and associated property rights of the attorney-in-fact

and competent spouse violate the United States Constitution, the laws of the State of

Indiana, and the requirements in 38 U.S.C. Section 5502(b) for state court approval of

actions conflicting with grants of powers.

C. A writ of mandamus ordering the Secretary to recognize the authority of Petitioner

Stump under the October 19, 2005, Durable Power of Attorney executed by Petitioner

Evans and all relevant laws of the State of Indiana, as well as the October 1, 2010 Order

Appointing Petitioner Stump as Permanent Guardian Over the Person and Estate of

William Louis Evans, Jr., as executed by a Marion [Indiana] Superior Court Judge.

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D. A writ of mandamus ordering the Secretary to immediately revoke the authority of

the currently assigned federal fiduciary and immediately return all funds held by that

fiduciary, VA, or any VA agent, to Mr. Evans’s authorized attorney-in-fact.

E. A writ of mandamus ordering the Secretary to retain a qualified accountant,

independent of VA, to conduct an accounting of Mr. Evans’s VA benefits since October

2010 and ordering the Secretary to make Mr. Evans whole for all costs, fees, and

expenses related to the actions of the VA-assigned fiduciary including, but not limited to,

fees paid to the fiduciary, check and other banking charges, and the cost of obtaining any

VA-required bond.

F. A writ of mandamus ordering the Secretary to pay the reasonable costs and

attorneys fees in this matter.

II. Facts Necessary to Understand The Issues Presented

1. Petitioner William L. Evans is a veteran of Korea and Vietnam currently receiving

VA compensation benefits for his service-connected conditions. He lives with Petitioner

Dorothy Evans, his wife of over 60 years, in their home in Indiana. Although over 80

years old and suffering from numerous ailments, Mr. Evans still loves to travel, visit

friends and enjoy his remaining years with family. See Ex. A (Notice of Disagreement of

Dorothy J. Evans) ¶¶ 8.

2. Petitioner Carolyn S. Stump is the Evans’s daughter. In October 2005, Mr. Evans

appointed Ms. Stump his attorney-in-fact under Indiana state law. Ex. B (Durable Power

of Attorney). This appointment has not been questioned or challenged in any court.

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3. Under the “General Powers” in the Durable Power of Attorney, Mr. Evans granted

Ms. Stump authority “to draw and endorse checks” and to “receive and to demand all

sums of money, debts, dues, accounts, legacies, bequests, interest, dividends, annuities,

and demands whatsoever (as are now or shall hereafter become due, owing, or payable,

or belonging to me) and to compromise or discharge the same.” Id. at 1. Further, the

Power of Attorney explicitly stated that the attorney-in-fact “is not limited (in any way)

from doing anything that would benefit himself or herself.” Id. at 2.

4. The Power of Attorney further stated that “this Power of Attorney shall not be

affected by the fact that [Mr. Evans] might become incompetent hereafter, but shall

remain in full force and effect.” Id. at 2.

5. In February 2009, Mr. Evans was hospitalized (in a non- VA facility) suffering

from a number of conditions, including the effects of Alzheimer’s disease. His physicians

prepared a formal Physician’s Report with the Indiana Probate Court documenting Mr.

Evans’s need for a guardian to make medical decisions for him and a letter for Ms. Stump

to provide to VA in order to assist her in obtaining an appointment as her father’s medical

guardian.

6. On February 12, 2009, Ms. Stump went to the Indianapolis regional office,

explained the situation, presented the letter and Probate Court filing, and requested

assistance in establishing a medical guardianship for her father. The Secretary’s

employees misdirected her to apply as a “fiduciary” over her father’s benefits, although

VA had not yet determined Mr. Evans incompetent to handle his finances. See Ex. C.

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(“applying for fiduciary for my dad William Evans in order to get him medical treatment

for dementia, Alzheimers”).

7. The Secretary’s employees took the medical information regarding her father and

initiated an incompetency determination that resulted in a rating decision dated July 17,

2009, in which the Secretary found Mr. Evans “not competent to handle disbursement of

funds.” Ex. D.

8. The July 17, 2009, Rating Decision stated “Expiration of Due Process On

04/01/2009.” Id. at 3.

9. Ms. Stump, under the direction and advice of the Secretary’s employees,

submitted a Request for Appointment of a Fiduciary, Custodian, or Guardian, which was

approved by a VA Adjudication Officer on July 21, 2009.

10. Upon approval of the fiduciary assignment, the Secretary immediately forced Ms.

Stump to comply with an arbitrary budget established after a single hour-long visit by VA

“field examiners.” Ms. Stump was expressly prohibited from exercising any independent

judgment regarding Mr. Evans’s interests.

11. A letter from Mrs. Evans to her Congressman a mere two months after VA seized

control of their lives documented the outrageous conditions the Secretary created:

We were told [by a VA field manager] that my social security, my

husband’s social security, retirement from military and veterans [benefits]
would be accounted for and we could no longer get any loans, use a bank
card, etc, I feel that this is an infringement on my rights. I have been
married to my husband for nearly 60 years. . . . We never asked for this
kind of intrusion into our financial affairs. We simply wanted payee status
changed and legal guardianship for my husband’s health matters. Please
help us fix this awful mess.

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Ex. E.

12. Ms. Stump repeatedly and consistently complained about the Secretary’s twisting

of her initial request and the overbearing, arbitrary, and capricious VA actions. See, e.g.,

Ex. F(a) (9-3-09: Ms. Stump said all she “wanted was to get medical help, they didn’t

need help with the money and she was going to use [the money] however she feels is

necessary to make the end of her father’s life better”); Ex. F(b) (9-3-09: Ms. Stump “said

she only wanted guardianship over health matters, not financial); Ex. F(c) (7/12/10: Ms.

Stump “said all the family wanted was help with his medical decisions” and “her

mother’s rights have been violated because the VA is telling her what she can do with her

money and what she can’t.”).

13. In July 2010, Ms. Stump reported to the Secretary’s employees that she had spent

the retroactive payment funds on trips to take her father to medical clinics in Arizona and

Maryland where his medicines were adjusted which improved his behavior. She also

informed VA that she also took her father on trips to a reunion and to visit friends in

Virginia, Tennessee, and Florida. Ex. G.

14. A VA “Field Examination Report” dated July 27, 2010, and based on a visit to the

Evans’s home stated that “The beneficiary needs [sic] are being met.” Ex. H at 3. The

report identified a checking account balance of $5,000.00 and a savings account balance

of $952.84 and that the family resided in a two-story 5 bedroom, 3 bathroom home that

was “in good condition and the yard nicely manicured.” Id. at 2-3. Ms. Stump again

“related she used the [retroactive payment] money and took her dad to Arizona, to the

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Banner Alzheimer Clinic for several days [and] took her dad to Virginia to visit Army

friends.” Id. at 3. In addition, the “[Field Examiner] saw the newly purchased washer and

dryer, and numerous boxes of linoleum” for a new floor in the house for which Ms.

Stump stated she did obtain prior approval.” Id. at 3.

15. The July 27, 2010, Field Examination Report explicitly stated that there were “No

questionable expenditures or misuse of funds.” Id. at 5.

16. By letter dated July 29, 2010, VA informed Ms. Stump that it “will continue to

recognize you as legal custodian to receive funds for William L. Evans.” Ex. I. Ms.

Stump was also “reminded that:”

No new loans, credit cards or balance increases are authorized.

You cannot borrow from, or loan funds belonging to the beneficiary. You
may not gift funds belonging to the beneficiary unless specifically
authorized by VA. . . . You may not purchase real estate with the
beneficiary’s VA funds unless you are appointed by the Court and have
both VA and Court approval.

Ex. I at 1 (underline in original).

17. In the same July 29, 2010, letter, VA denied that Ms. Stump had obtained prior

approval for her father’s trips, the washer and dryer, new flooring, and fence repairs. Ms.

Stump was “advised that this indiscretion along with the state of your accounting will be

taken into account when making the decision on whether or not you remain as payee for

Mr. Evans’ VA benefit.” Ex. I at 2.

18. On October 1, 2010, Ms. Stump obtained an Order from the Marion County

Superior Court Probate Division appointing her as “Permanent Guardian Over The

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Person And Estate Of William Louis Evans, Jr.” Ms. Stump was authorized by the Court

to “take all actions necessary to handle [Petitioner William Evans] financial affairs” and

granted “the responsibility of making all of [Mr. Evans’s] healthcare decisions.” Ex. J at

1.

19. On October 7, 2010, VA recognized Greenfield Banking Company (“GBC”) as

“legal custodian to receive VA funds for [Petitioner Evans].” Ex. K at 1. VA directed that

$800.00 “left over” from Mr. Evans’s monthly VA benefits “are to be saved” and

authorized payment of 4% of Mr. Evans’s benefits to GBC. Id. at 2.

20. On November 22, 2010, Ms. Stump informed GBC that she had Power of

Attorney and had been appointed Guardian for Mr. Evans. In response to a GBC request

for copies of the corresponding documents, VA employee Slicer told GBC that “This is a

case where you can and will rely heavy on the statement that you take direction from

VA.” Mr. Slicer also found it humorous that Mrs. Evans had, despite assurances that her

finances were not involved, “refused to give VA any information about her income . . . so

this will be a fun one.” Ex. L at 2 (emphasis supplied).

21. By letter dated January 18, 2011, the Indianapolis regional office notified Ms.

Stump “that a determination has been made by the [VA] regarding the estate of William

L. Evans. Misuse of William L. Evans’ VA benefits has been found.” The misuse

allegedly involved “retro benefits of $11, 908.00 and a total of $8,800.00 in monthly

benefits.” Ex. M at 1.

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22. On January 21, 2011, GBC requested approval to reimburse Ms. Stump for

expenditures made on behalf of Mr. Evans in November and December 2010. Although

fully informed that Ms. Stump had long paid bills by electronic means without problem,

VA employee Grover responded that GBC could “only reimburse with original

bills/statements.” Ex. L at 1. As a result, GBC has not reimbursed Ms. Stump for

legitimate expenditures since October 2010 and she has been forced to exhaust her own

savings. Ex. N at 3.

23. In January 2011, Ms. Stump contacted a local television station in hopes of forcing

the Secretary or GBC to release funds withheld since October 2010. Ex. O.

24. As a result, on January 25, 2011, GBC requested that someone from VA call Ms.

Stump to “(1) reinforce the authority of the VA and (2) take some heat off GBC.” Ex. P

at 2 (emphasis supplied). No mention was made of Mr. Evans’s best interests or

reimbursing Ms. Stump for many months of legitimate expenditures.

25. By letter dated March 15, 2011, the Secretary notified Petitioners’ counsel that “A

misuse determination made under Title 38 U.S.C. § 6106 carries no appeal rights.” Ex. Q

at 1.

26. In April and May 2011, undersigned counsel on behalf of Petitioners, began a

series of phone conversations and written correspondence with the Secretary’s employees

and officials responsible for the situation. Of particular relevance, on April 28, 2011,

after numerous phone discussions, counsel provided VA regional staff attorney with

complete documentation of each expenditure for which Ms. Stump sought reimbursement

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supported by a sworn declaration regarding the authenticity of the documents and

appropriateness of the expenditures. Counsel was told unequivocally that this would be

sufficient evidence to permit reimbursement. Ex. R.

27. By correspondence dated May 18, 2011, the regional staff attorney stated that

reimbursement would not be made because “the documents emailed and mailed to [him]

are insufficient for the purpose of seeking reimbursement for the alleged expenses.”

Ex. S. The correspondence also attached a January 2011 letter purportedly sent to Ms.

Stump by the regional office manager that established numerous arbitrary, capricious,

and illegal “guidelines” (i.e., mandatory requirements) mandating “only original billings”

and “only original receipts” despite Ms. Stump’s repeated reports that many of the

recurring bills (e.g., utilities) were received and remitted electronically. Id. at 1. The VA

also made clear that all approved expenses were to be transferred to the fiduciary’s name

and address. Id. at 2.

28. Further, although apparently unknown to VA, this January 2011 letter that

imposed the illegal conditions was returned to the regional office as wrongly addressed.

This fact was discovered by a simple review of the certified mail tracking number on the

US Postal Service website. Ex. T. Thus, VA continues to hold Ms. Stump to conditions

that, even if legal, were unknown to her because of VA error.

29. Failing to obtain any cogent response from any regional office official, counsel

initiated electronic and telephone communications with the C&P Director between May

18 and 19, 2011. Despite numerous statements by the C&P Director to undersigned

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counsel that the situation was “wrong”, “ridiculous,” and “would be fixed,” specifically

including that the reimbursement funds were improperly withheld and would be released,

no such action occurred and communications were unilaterally terminated without notice

or explanation by the C&P Director. Ex. U.

III. Reasons Why The Petition Should Be Granted

The Secretary is destroying a family. No amount of cajoling, pleading, or appeals

to conscience have been able to divert the Secretary from his arbitrary compliance with

requirements – real and imagined – despite the clear and adverse impacts on a formerly

happy and functioning family. Mr. Evans’s best interests have been subjugated to the

Secretary’s convenience and self-serving defense of indefensible “practices” and

“guidelines.” The persecution of Ms. Stump, the only person to consider Mr. Evans’s

interests, is only the most blatant example of the Secretary’s complete domination of so-

called “fiduciaries.”

The Evans had financial discipline for over 60 years. Even years after Mr. Evans

lost his ability to do so, his wife and daughter managed his finances so that they all

continued to live in a well-kept 5 bedroom, 3 bath home with a well-manicured yard in a

safe, middle-class neighborhood. They took Mr. Evans on trips to see his friends and

grandchildren. He watched ducks in a pond out the window of his home without care

because his wife and daughter worked hard to ensure all his many medical and personal

needs were met.

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 Yet only a few months after VA swooped in to “save” Mr. Evans, his family is

now on the road to financial ruin from arbitrary restrictions on the family’s funds. VA

banned the “emotional expenditures” that gave meaning to Mr. Evans’s life. VA ordered

money saved for Mrs. Evans’s future at the expense of Mr. Evans’s current needs. Mr.

Evans’s wife and daughter were chastised and humiliated for trying to continue to do the

things that they had long done to bring small joys into his daily life. The Secretary’s

employees just don’t care as long as bank account balances are increasing.

That is why the petition should be granted.

Jurisdiction Exists For Review Of The Petition

The Court has jurisdiction to review this Petition and provide the relief sought.

This Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant

to the All Writs Act, 28 U.S.C. Section 1651(a). See Ribaudo v. Nicholson, 20 Vet. App.

552, 555 (2007); Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998). Although, [t]he

remedy of mandamus is a drastic one, to be invoked only in extraordinary situations,” id.

(citing Kerr v. U.S. Dist. Ct. N. Dist. Cal., 426 U.S. 394, 402 (1976)), this is such a case.

See Freeman v. Shinseki, CAVC No. 10-1462 (Apr. 26, 2011). The Secretary’s reduction

of a content and functioning family to poverty and despair, unable to even question the

Secretary’s edicts is such an extraordinary situation. As established below, this petition

satisfies all the conditions for the Court to issue a writ. See Cheney v. U.S. Dist. Ct. D.C.,

542 U.S. 367, 380-81 (2004) (petitioner must lack adequate alternative means to attain

the desired relief; petitioner must demonstrate a clear and indisputable right to the writ;

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and the Court must be convinced, given the circumstances, that the issuance of the writ is

warranted); see also, e.g., Ribaudo, 20 Vet. App. at 555 (petitioner’s right to the writ

must be “clear and undisputable”).

Petitioners Have A Clear and Indisputable Right To A Writ

Mr. Evans has statutory and constitutional property rights in his VA benefits. See,

e.g., Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). Mrs. Evans has similar federal

property rights and corresponding state property rights as a spouse. Ms. Stump has rights

as attorney-in-fact, court-appointed guardian, and in the money the Secretary seeks in

enforcing his “misuse” finding. The Secretary, however, refuses to act in response to

Petitioners’ requests to exercise these rights, having declared “due process expired.” Ex.

D at 3. Contra Freeman v. Shinseki, CAVC No. 10-1462 (Apr. 26, 2011).

Petitioners thus have an indisputable right to, and a compelling need for, a writ

from this Court.

There Are Inadequate Alternative Means To Obtain The Relief Sought

The Secretary has made absolutely clear that there is nothing Petitioners can do to

obtain any relief from his arbitrary, capricious, and damaging actions. His position that

Petitioners’ due process rights have “expired” is essentially unassailable by Petitioners

absent the Court’s intervention. In any event, Petitioners have been repeatedly and firmly

rebuffed in every attempt to seek relief from the dismal financial condition the Secretary

has created for them. Indeed, the Secretary characterized denying Petitioners’ pleas for

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relief as “fun” and has acted only to “take the heat off” the bank that refuses to pay Mr.

Evans’s legitimate expenses.

Ms. Stump, in particular, is stymied from challenging the “misuse” finding.

“Misuse” is defined by statute as the use of a beneficiary’s funds for purposes that are not

in his “interest.” 38 U.S.C. § 6002. Yet, as admitted during the Freeman oral argument,

the Secretary does not even have a definition of a beneficiary’s “interest.” Moreover,

even if such a definition existed, the Secretary has not alleged that Ms. Stump’s

expenditures were not in Mr. Evans’s best interests, only that the expenditures were not

“authorized” by VA. Even if true, which Ms. Stump denies, failure to obtain permission

from a VA employee is not a violation of the statute. At the very least, the Secretary

cannot arbitrarily seize money from Ms. Stump without affording her an opportunity to

make these arguments. See Freeman v. Shinseki, CAVC No. 10-1462 (Apr. 26, 2011).

There are thus no alternative means to obtain any relief absent this Court’s

intervention.

Issuance of the Writ is Warranted

The Secretary’s destruction of an elderly veteran’s peaceful remaining years

cannot go unreviewed by this Court. Whatever the Secretary’s motivations, whatever

technical requirements may have gone unmet, whatever the personal irritations, the

undeniable result of the Secretary’s actions has been to create turmoil where there was

contentment, anxiety where there was peace, and despair where there was hope. This

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Court cannot turn away when the Secretary causes such harm and blocks any means for

those affected to seek relief.

In addition, the Secretary’s internal communications make clear that his only

concerns are asserting VA authority and “taking the heat off” of the current fiduciary.

There is thus no indication that the Secretary or the current fiduciary have ever acted, or

have any future intention to act, in Mr. Evans’s interests – which is the sole purpose of

the VA fiduciary program. See Freeman at 6-8. Further, the Secretary has made

absolutely clear that he does not intend to recognize or comport his actions with the

Power of Attorney, October 2010 Probate Court order, or any other applicable state law.

To the contrary, the Secretary has explicitly stated that Ms. Stump can only act in

accordance with court orders with which he agrees. See, e.g., Ex. I at 1 (“You may not

purchase real estate with the beneficiary’s VA funds unless you are appointed by the

Court and have both VA and Court approval.” (emphasis added)).

The Court therefore must issue a writ to enforce the rule of law that a beneficiary’s

interests must come before VA’s or a fiduciary’s interests.

IV. RESPONDENTS

Eric K. Shinseki is the Secretary of Veterans Affairs charged with overall

authority over and management responsibility for the Department of Veterans Affairs. 38

U.S.C. § 303. He also has the authority to prescribe how his subordinates carry out their

legal responsibilities. Id. § 501.

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 Thomas J. Murphy is the Director of Compensation and Pension Service of the

VA's Veterans Benefits Administration and has administrative authority of and control

over employees of the VA Fiduciary Program.

Nicholas A. Miller is a Staff Attorney at the VA Regional Counsel's Office in

Indianapolis, Indiana.

R. Dean Slicer is the Fiduciary Manager for the Indianapolis VA Regional Office.

Ena Lima is the Veterans Service Center Manager for the Indianapolis VA

Regional Office.

CONCLUSION

Mr. and Mrs. Evans and Ms. Stump pray for the Court to issue a writ of

mandamus to the Secretary. They have satisfied all applicable requirements for issuance

of a writ and have a right to the relief requested. Issuance of a writ by the Court is

therefore necessary in the interests of justice.

Respectfully submitted,

/s/ Katrina J. Eagle

KATRINA J. EAGLE

10755 Scripps Poway Parkway

# 353
San Diego, CA 92131
858 549 1561 / 858 549 1167 (fax)
eaglek@sbcglobal.net

Attorney for Petitioners

Dated: 20 May 2011

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EXHIBITS

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