Circuit Court for Prince George’s County
Case No. CAE-15-19452


                                                       REPORTED


                                           IN THE COURT OF SPECIAL APPEALS

                                                     OF MARYLAND

                                                           No. 2419

                                                  September Term, 2016


                                               JING MIAO MISEVETH

                                                             v.

                                               JEANNE AELION, ET AL.



                                               Wright,
                                               Graeff,
                                               Nazarian,

                                                             JJ.



                                                   Opinion by Wright, J.


                                               Filed: December 21, 2017
       In 2015, Jing Miao Miseveth, appellant, filed, in the Circuit Court for Prince

George’s County, a petition for guardianship of the person and property for her husband,

Theodore Miseveth. The circuit court ultimately granted appellant’s request to be

guardian of the person; however, the court ordered that a third-party, Jeanne Aelion,

appellee, be guardian of the property. In 2016, Aelion was appointed by the Department

of Veterans Affairs (the “VA”) to be the fiduciary of Mr. Miseveth’s VA benefits

(hereinafter “Representative Payee”). Not long after, appellant submitted an application

to the VA requesting that she be named Representative Payee. That application was

granted. Aelion thereafter filed a petition in the circuit court regarding, among other

things, appellant’s appointment as Representative Payee. Following a hearing, the court

ordered that appellant reinstate Aelion as Representative Payee or, in the alternative, that

appellant submit a portion of Mr. Miseveth’s VA benefits to Aelion every month.

Appellant then filed a motion for reconsideration, which the court denied.

       In this appeal, appellant presents the following question for our review:

       Pursuant to 38 U.S.C. § 511(a) and the interpreting case law, did the Circuit
       Court lack subject matter jurisdiction to pass any order addressing the
       appointment of the fiduciary for or the distribution of Mr. Miseveth’s
       Department of Veterans Affairs disability benefits?

       For reasons to follow, we answer appellant’s question in the affirmative. Because,

however, the circuit court’s judgment contains various other provisions not challenged in

the instant appeal, we reverse only that part of the judgment concerning Mr. Miseveth’s

VA benefits.




                                             1
                                    BACKGROUND

      Mr. Miseveth, a veteran, suffered a stroke in May of 2015 that left him disabled.

Not long after, appellant, Mr. Miseveth’s wife of approximately four years, filed a

petition seeking to become guardian of her husband’s person and property. The circuit

court held a hearing on that petition in November of 2015 and ultimately granted

appellant’s request to be guardian of Mr. Miseveth’s person. Appellant’s request to be

guardian of the property, on the other hand, was denied. In so doing, the court expressed

concerns about appellant’s accounting practices and management of Mr. Miseveth’s

funds. As such, a court-appointed attorney, Aelion, was named as guardian of Mr.

Miseveth’s property.

      In or about March of 2016, Aelion, as part of her duties as guardian of Mr.

Miseveth’s property, was named by the VA as Representative Payee of Mr. Miseveth’s

VA benefits, which equaled $3,068.90 per month. As part of that appointment, the VA

issued a Fiduciary Agreement that itemized Mr. Miseveth’s monthly expenses and how

his VA benefits would be used to pay those expenses. Included in that itemization were

expenses for auto insurance; utilities, mortgage, and insurance on a primary residence;

utilities and insurance on real property owned by Mr. Miseveth; utilities and insurance on

another piece of real property owned by Mr. Miseveth; and, a $1,000.00 monthly stipend

for appellant. The total for those expenses was $2,976.89, all of which was covered by

Mr. Miseveth’s VA benefits.

      Around the same time that Aelion submitted her application, appellant also

submitted an application to the VA to become Representative Payee, but the VA denied

                                            2
that application and instead named Aelion. Several months later, appellant, unbeknownst

to Aelion, again applied to become Representative Payee. The VA ultimately granted

that application and named appellant as Representative Payee. As part of that

appointment, the VA issued a notice to Mr. Miseveth and Aelion informing them of the

new appointment. The VA also created a new list of Mr. Miseveth’s expenses and how

his VA benefits would be used to pay those expenses. That list of expenses, which

differed significantly from the list that had been issued following Aelion’s appointment,

included expenses for auto insurance; utilities and insurance on a primary residence; a

“cleaning service” for the residence; appellant’s prescriptions; “lawn care”; “groceries”;

and “special foods” for Mr. Miseveth. The total for those expenses was $2,724.35.

          In October of 2016, Aelion filed a petition in the circuit court regarding

appellant’s appointment as Representative Payee. Specifically, Aelion argued that, as

guardian of the property, she had insufficient funds to cover Mr. Miseveth’s expenses

because appellant, as Representative Payee, was using some of Mr. Miseveth’s VA

benefits for “questionable” expenses. Aelion asked the court to settle the matter at a

hearing on October 24, 2016, which the court had previously scheduled to address other

issues.

          At that hearing, the circuit court heard evidence regarding appellant’s appointment

as Representative Payee and her use of Mr. Miseveth’s benefits. Based on that evidence,

which is not in dispute, the court found as follows:

                 It’s noted that after the Court appointed the guardian of the property,
          that [Aelion] became the representative payee, that at some point
          [appellant] had that changed and she became the representative payee. And

                                                3
      it really – it appears that the guardian of the property was not opposed to
      that, if she were paying his bills. Because he has a significant number of
      bills, which relate – he has the property next door that he owns, utilities for
      that property, and other items.

              [Appellant] has indicated that she’s paying some of the bills, but not
      all of them. And that being said is the concern, because the guardian of the
      property’s duty and obligation is to safeguard his assets and funds.

              So if [appellant] has his veteran’s check, but she’s not paying all of
      the bills that are attributable to him, that’s not safeguarding his assets and
      funds, and it’s putting the guardian of the property in a position where she
      can’t pay it. I know she still gets a small Social Security check, but that’s
      about 500 and something and the VA check is about $3,000.

              So my ruling is as follows: That the guardian of the property is to be
      appointed the representative payee. I know sometimes it’s difficult for the
      Veteran’s Affairs to do what – they do often what they want to do. In the
      alternative, [appellant] is to transfer all funds, with the exception of $1,000,
      to the guardianship account each month.

             Because the previous order recognized that [Mr. Miseveth] took care
      of his wife financially, and so that’s why we had – we’ve gone over
      everything she needed and we set out $1,000 and that $1,000 was just for
      her and the guardian of the property was paying the bills.

             But based on where the Court is, that appears to be the best way to
      continue. That she continue to get her $1,000, but any funds that she
      receives in excess of that, she must put in the guardianship account for the
      guardian of the property to pay [Mr. Miseveth’s] bills and financial
      obligation, because that’s the whole purpose of the guardian of the
      property’s duties and obligations.

      Following its ruling, the circuit court entered judgment regarding multiple issues

addressed at the hearing on October 24. The only portion of that judgment germane to

Mr. Miseveth’s VA benefits was the following order:

            ORDERED, that [appellant] is hereby directed to reinstate Jeanne
      Aelion as the representative payee for [Mr. Miseveth’s] Department of
      Veterans Affairs income. That until such time, upon receipt of [Mr.
      Miseveth’s] monthly VA benefits, [appellant] shall submit to Jeanne

                                             4
       Aelion, guardian of the property, all monies received except One Thousand
       Dollars ($1,000.00) which amount is hereby permitted to assist [appellant]
       with her personal expenses. The remaining funds shall be used by the
       guardian to safeguard [Mr. Miseveth’s] interest by ensuring that expenses
       associated with and/or in the name of [Mr. Miseveth] are paid[.]

       Appellant thereafter filed a motion for reconsideration, which the circuit court

denied. This timely appeal followed.

                                STANDARD OF REVIEW

       “The issue of subject matter jurisdiction need not be raised by any party, but may

be raised by a court, sua sponte, at any time.” Lewis v. Murshid, 147 Md. App. 199, 202-

03 (2002). “Jurisdiction of the subject-matter means not simply the particular case to

which the attention of the court is directed, but the class of cases to which it belongs, and

over which the authority of the court extends.” Della Ratta v. Dyas, 183 Md. App. 344,

355 (2008) (citations and quotations omitted). “Whether a court has fundamental

jurisdiction, i.e., the power, to decide a matter, must be determined by looking to ‘the

applicable constitutional and statutory pronouncements[.]’” Maryland Bd. of Nursing v.

Nechay, 347 Md. 396, 405 (1997) (citation omitted). And, while there exists a general

presumption that agency actions are reviewable, “this presumption can be overcome by

‘specific language’ that is ‘a reliable indicator of congressional intent’ that courts lack the

power to hear a challenge to agency action.” Blue Water Navy Vietnam Veterans

Association, Inc. v. McDonald, 830 F.3d 570, 573 (D.C. Cir. 2016).

                                       DISCUSSION

       Appellant argues that the circuit court lacked the power to order her to reinstate

Aelion as Representative Payee of Mr. Miseveth’s VA benefits or, in the alternative, to

                                              5
transfer those benefits to Aelion. Appellant maintains that Section 5502 of Article 38 of

the United States Code provides “the Secretary of Veterans Affairs the exclusive power

to appoint a fiduciary to receive and distribute veterans’ disability benefits” and

“extensive authority for supervising those appointed fiduciaries.” Appellant further

maintains that Section 511(a) of Article 38 of the United States Code provides an

exclusive “remedial scheme regarding veterans’ benefit determinations” and that,

pursuant to that same statute, “the Secretary’s authority in the area of determining and

providing veterans’ benefits is not subject to state court review.” Appellant avers,

therefore, that the circuit court lacked subject matter jurisdiction to enter its order

regarding her appointment as Representative Payee and her use of Mr. Miseveth’s VA

benefits.

       38 U.S.C. § 511(a) provides:

       The [Secretary of Veterans Affairs] shall decide all questions of law and
       fact necessary to a decision by the Secretary under a law that affects the
       provision of benefits by the Secretary to veterans or the dependents or
       survivors of veterans. Subject to subsection (b), the decision of the
       Secretary as to any such question shall be final and conclusive and may not
       be reviewed by any other official or by any court, whether by an action in
       the nature of mandamus or otherwise.1

Id.

       The plain language of the above statute makes clear that any decision by the VA

“under a law that affects the provision of benefits” is not reviewable by any court,


       1
        38 U.S.C. § 511(b) provides several exceptions to the non-reviewability of the
Secretary’s decisions regarding the provision of benefits, none of which are applicable
here. Id.
                                               6
including the circuit court. See Della Ratta, 183 Md. App. at 356 (“The cardinal rule of

statutory interpretation is to ascertain and effect the legislative intent. The process begins

with the statutory language which will be given its plain meaning[.]”). Therefore, the

question in the present case is whether the circuit court “reviewed” a decision by the VA

in ordering appellant, who had been duly appointed as Representative Payee by the VA,

to distribute her husband’s VA benefits according to the pay schedule established by

Aelion when she was Representative Payee. If so, then the court’s order would be in

violation of the jurisdictional mandates of 38 U.S.C. § 511(a) and must be reversed.

       Unfortunately, there is a dearth of case law regarding the scope of the

jurisdictional limitation set forth in 38 U.S.C. § 511(a), and even fewer cases, if any, that

address the specific issues raised in the instant case. That said, several courts have had

occasion to explore the contours of § 511(a), most notably the United States Court of

Appeals for the Ninth Circuit in Veterans for Common Sense v. Shinseki, 678 F.3d 1013

(9th Cir. 2012), cert. denied 568 U.S. 1086 (2013). There, the Ninth Circuit addressed,

among other things, whether it lacked jurisdiction, pursuant to § 511(a), to decide if

delays in the VA’s provision of mental health care violated the Constitution and federal

law. Id. at 1026. As part of its discussion, the Court engaged in a lengthy analysis of the

legislative history and judicial construction of § 511(a). Id. at 1019-26.

       Within that analysis, the Ninth Circuit noted that Congress first prohibited judicial

review of the VA’s benefits decisions in 1933, but that, over time, exceptions to that

preclusion began to appear in several federal circuits. Id. at 1020. As a result, Congress

amended the statute and enacted 38 U.S.C. § 211 (which would later become § 511) to

                                              7
reemphasize “its ‘clear’ intent that the ‘exemption from judicial review…be all

inclusive[.]’” Id. (citations omitted). The Ninth Circuit then noted that, following the

passage of § 211, the Supreme Court, in two separate cases, held that the statute did not

bar judicial review under certain circumstances. Id. at 1020-21; see also Traynor v.

Turnage, 485 U.S. 535 (1988); Johnson v. Robison, 415 U.S. 361 (1974). Congress

responded once again, this time overhauling the VA’s internal review mechanisms by

implementing three fundamental changes: first, Congress created the United States Court

of Appeals for Veterans Claims, which would be responsible for reviewing decisions

made by the VA and the Board of Veterans’ Appeals; second, Congress gave exclusive

jurisdiction over decisions of the Veterans Court to the Federal Circuit; and, third,

Congress changed the language of § 211 and enacted § 511 in order to “‘broaden the

scope of section 211’ and limit outside ‘court intervention’ in the VA decision-making

process.”2 Id. at 1021-22.

       Following its discussion of the history of § 511, the Ninth Circuit then surveyed

cases from various circuits to ascertain “the preclusive contours of § 511.” Id. at 1023-25.

That survey resulted in “some consistent, largely undisputed conclusions as to what § 511

does (and does not) preclude.” Id. at 1023. Based on those conclusions, the Ninth

Circuit determined that:

       § 511 precludes jurisdiction over a claim if it requires the district court to
       review VA decisions that relate to benefits decisions, including any
       decision made by the Secretary in the course of making benefits

       2
        For these reasons, Aelion’s reliance on Hines v. Stein, 298 U.S. 94 (1936), is
misplaced, as that case was decided well before 38 U.S.C. § 511 was enacted in its current
form.
                                              8
       determinations. This standard is consistent with Congress’ intention to
       broaden the scope of the judicial preclusion provision and is reflected in §
       511(a)’s plain statement that we may not review a decision by the Secretary
       under a law that affects the provision of [veterans’] benefits. This
       preclusion extends not only to cases where adjudicating veterans’ claims
       requires the district court to determine whether the VA acted properly in
       handling a veteran’s request for benefits, but also to those decisions that
       may affect such cases. If that test is met, then the district court must cede
       any claim to jurisdiction over the case, and parties must seek a forum in the
       Veterans Court and the Federal Circuit.

Id. at 1025-26 (internal citations and quotations omitted).

       Based on the clear language of § 511(a) and Congress’ express intent in limiting

judicial review of VA decisions affecting the provision of veterans’ benefits, we hold that

the circuit court in the instant case lacked jurisdiction to enter judgment regarding the

provision of Mr. Miseveth’s VA benefits. 38 U.S.C. § 5502(a)(1) provides that “[w]here

it appears to the Secretary that the interest of the beneficiary would be served thereby,

payment of benefits under any law administered by the Secretary may be made directly

to…a relative or some other fiduciary for the use and benefit of the beneficiary[.]” Id. In

so doing, “[t]he VA is authorized to ‘select and appoint (or in the case of a court-

appointed fiduciary, to recommend for appointment) the person or legal entity best suited

to receive [VA] benefits in a fiduciary capacity for a beneficiary who is mentally ill

(incompetent) or under legal disability by reason of minority or court action[.]” Evans v.

Greenfield Banking Co., 774 F.3d 1117, 1120 (7th Cir. 2014). In addition, the federal

statute provides the VA with supervisory authority over fiduciaries, including requiring a

fiduciary to provide an accounting, terminating the appointment of a fiduciary,




                                              9
investigating claims of malfeasance and misuse of funds, and referring matters to the

VA’s Regional Counsel.3 38 U.S.C. § 5502(b); See also Evans, 774 F.3d at 1120-21.

       Here, it is undisputed that, following Aelion’s appointment as Representative

Payee, the VA conducted a separate investigation and determined that appellant, not

Aelion, was best suited to act as the fiduciary of Mr. Miseveth’s VA benefits and to

receive said benefits on his behalf. It is also undisputed that, as part of its investigation

and appointment of appellant as Representative Payee, the VA established a pay schedule

for how Mr. Miseveth’s VA benefits would be spent. Importantly, there is no indication

in the record that appellant deviated from that schedule; rather, the only allegation of

“misuse” levied by Aelion was that appellant did not use the funds in a manner consistent

with how she, as guardian of Mr. Miseveth’s property, wanted the funds to be used. That

being the case, Aelion was required to seek relief via the review scheme established by

Congress, as the VA’s appointment of appellant as Representative Payee and its

determination regarding how Mr. Miseveth’s benefits should be spent were clearly

decisions made “under a law that affects the provision of benefits by the Secretary to

veterans.” Consequently, the circuit court’s “review” of that decision, which resulted in

the court’s ordering appellant to reinstate Aelion as Representative Payee and to




       3
        The statute does grant the Secretary the authority to appear in a state court and to
make “proper presentation” if the Secretary determines that a fiduciary is not properly
executing his duties. 38 U.S.C. § 5502(b). That statutory authority is not, however, a two-
way street; that is, it does not permit a state court to intervene in matters involving the
provision of VA benefits by the Secretary.
                                              10
distribute Mr. Miseveth’s VA benefits contrary to the pay schedule established by the

VA, was precluded by § 511(a).

       We further note that our holding does not stand for the proposition that every

conceivable cause of action that may have some effect on a veterans’ benefits is

necessarily shielded from our review. In other words, we do not find that the circuit court

lacked jurisdiction simply because its judgment had some tangential effect on Mr.

Miseveth’s VA benefits. Instead, the relevant case law shows that a court lacks

jurisdiction when it is called upon to evaluate, whether directly or indirectly, the

propriety of a decision made by the VA in the provision of a veterans’ benefits. See e.g.

Blue Water, 830 F.3d at 574 (bar to judicial review under § 511(a) not limited to

individual benefits determinations but encompasses all decisions, even policy decisions,

affecting the provision of veterans’ benefits); Hunt v. U.S. Dept. of Veterans Affairs, 730

F.3d 706, 707 (D.C. Cir. 2014) (Privacy Act claim for damages was barred from judicial

review because the claims were “based on the assertion ‘that the VA’s failure to maintain

accurate and complete records adversely affected [a veteran’s] benefits

determinations.’”); Jones v. U.S., 727 F.3d 844, 846 (8th Cir. 2013) (claim that VA

negligently withheld benefits was barred from judicial review because it “would require

the district court to determine whether the VA acted properly in handling [plaintiff’s]

benefits request.”) (citations and quotations omitted); King v. U.S. Dept. of Veterans

Affairs, 728 F.3d 410, 414 (5th Cir. 2013) (claim of negligence regarding termination of

benefits was barred from judicial review because “the district court would have to

analyze whether the VA’s agents knew or should have known that the denial of

                                             11
[plaintiff’s] benefits was wrong.”); Veterans for Common Sense, 678 F.3d at 1028 (claim

that delays in the VA’s provision of mental health care violated federal law was barred

from judicial review because the court would need to “evaluate[] the circumstances of

individual veterans and their requests for treatment, and determin[e] whether the VA

handled those requests properly.”).

       As noted, there is no indication in the record that appellant, in her capacity as

Representative Payee, handled Mr. Miseveth’s VA benefits in a manner inconsistent with

the pay schedule established by the VA. Moreover, there is no indication in the record

that the circuit court ordered Aelion, as guardian of the property, to distribute Mr.

Miseveth’s VA benefits in a particular manner. Rather, the pay schedule championed by

Aelion was established by the VA when Aelion was appointed as Representative Payee

prior to appellant’s appointment. By ordering appellant to revert back to that pay

schedule, a pay schedule that the VA essentially disavowed when it appointed appellant

as Representative Payee and established the new pay schedule, the court “reviewed” a

decision by the VA regarding the provision of benefits and thus exceeded the

jurisdictional limitations set forth in § 511(a). Accordingly, that portion of the court’s

judgment must be reversed.

                                                  JUDGMENT OF THE CIRCUIT
                                                  COURT FOR PRINCE GEORGE’S
                                                  COUNTY REVERSED. COSTS TO
                                                  BE PAID BY PRINCE GEORGE’S
                                                  COUNTY.




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