VEASEY v. UNITED STATES et al

Filing 27

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 2/9/2017. 2/9/2017 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRANCIS EDWARD VEASY
Petitioner,

:
:
:
v.
:
:
UNITED STATES OF AMERICA;
:
CAROL ROANE, Assistant Director,
:
Philadelphia VAROIC;
:
MICHAEL SHAPIRO, M.D., Hospital
:
Administrator;
:
DR. GUYLAI, M.D., Psy. Behavioral
:
Restrictions Committee Chairman;
:
TIMONTHY KELLY, Patient Advocate,
:
VAMC/VAROIC;
:
JEFFREY KAUFMAN, Chief, VA Police Dept.; :
LISA CATES, Captain, VA Police Dept.;
:
Respondents.
:

MCHUGH, J.

CIVIL ACTION
No. 16-4151

February 9, 2017
MEMORANDUM

I.

BACKGROUND
Petitioner Francis Edward Veasy is a retired U.S. Army veteran who receives medical

care at the Corporal Michael J. Crescenz Medical Center in Philadelphia (Crescenz Medical
Center). In response to a March 12, 2015 incident involving Petitioner and one of his doctors,
the Disruptive Behavior Committee at the Crescenz Medical Center imposed on Petitioner an
Order of Behavioral Restriction (OBR). 1 The OBR—which was dated March 18, 2015 and

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The government refers both to an Order of Behavioral Restriction (OBR) and a Patient Record
Flag (PRF). It is unclear whether the care restrictions that led to this dispute are mandated by the
OBR, the PRF, or both, or whether those terms are used interchangeably. For the sake of
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which remains in effect 2—requires that Petitioner check in with security personnel when he
arrives at the Crescenz Medical Center for non-emergency treatment, and that he be
accompanied by a police escort when moving through the facility.
Through a series of letters, Petitioner notified the Veterans Administration (VA) of his
objections to the OBR. The VA took no action in response to these letters and Petitioner now
seeks a writ of mandamus to compel the VA to hold a hearing where he can formally contest his
OBR. Before me is the government’s Motion for Summary Judgment. For the reasons detailed
below, this motion is granted and Petitioner’s claim is dismissed.
II.

STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). On such a motion, “‘[a]ll reasonable inferences from the record must be drawn in favor
of the nonmoving party’ and the court ‘may not weigh the evidence or assess credibility.’”
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016) (alteration in original)
(citation omitted). But if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” there is no genuine issue of any material fact and the moving party is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

brevity, I use “OBR” throughout to refer to the requirement that Petitioner check in with VA
security personnel and be accompanied by a police escort while in the Crescenz Medical Center.
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The OBR will remain in effect for two years and is set to expire on March 18, 2017, at which
point the Disruptive Behavior Committee will determine whether the restrictions should remain
in place.
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III.

DISCUSSION
Petitioner brings this action pursuant to the Mandamus Act, 28 U.S.C. § 1361, which

provides that “district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.”
Petitioner is entitled to relief under the Mandamus Act “only if he has exhausted all other
avenues of relief and only if the defendant owes him a clear, nondiscretionary duty.” Harmon
Cove Condo. Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Heckler v.
Ringer, 466 U.S. 602, 616 (1984)). Furthermore, the nondiscretionary duty in question must be
“a specific, plain ministerial act devoid of the exercise of judgment or discretion. An act is
ministerial only when its performance is positively commanded and so plainly prescribed as to
be free from doubt.” Id.
Because Petitioner has failed to exhaust his administrative remedies, and because the
government has no “clear, non-discretionary duty” to conduct the hearing he seeks, his action
under the Mandamus Act fails.
A. Failure to Exhaust Administrative Remedies and Lack of Ministerial Duty
The regulations governing the issuance of an OBR are set forth at 38 C.F.R. § 17.107.
That section allows the VA to restrict the “time, place, and/or manner” of medical care that it
provides to patients whose disruptive behavior “could jeopardize the health or safety of other
patients, VA staff, or guests . . ., or otherwise interfere with the delivery of safe medical care to
another patient at the facility.” § 17.107(b). The regulations expressly permit several restrictive
measures, including “requiring police escort,” so long as those restrictions are “narrowly tailored
to address the patient's disruptive behavior and avoid undue interference with the patient's care.”
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Id. Of particular relevance to this case, § 17.107(e) allows a patient to “request . . . review of
any order issued under this section within 30 days of the effective date of the order by submitting
a written request to the Chief of Staff.”
Petitioner was clearly apprised of his right to request review and of the procedures for
exercising that right. During a meeting at the Cresncenz Medical Center on March 20, 2015,
Petitioner received a three-page letter notifying him of the OBR and explaining that it was
imposed. That letter advised Petitioner that:
If you wish to appeal these restrictions, you have 30 days from the date of this letter to do
so. You may appeal by sending a letter to the following address:
[Address of the Chief of Staff, Philadelphia VA Medical Center]
In your letter you should state that you disagree with the restrictions and why you
disagree with the restrictions.
MSJ Ex. K. Moreover, Petitioner’s attention was directed to this section of the letter when,
during the March 20, 2015 meeting, he announced his intention to contest the OBR.
Nevertheless, Petitioner failed to follow the prescribed procedures for requesting review.
Although he sent several letters to the VA objecting to the police escort requirement, he either
failed to send them to the appropriate decision-maker (the Chief of Staff), failed to send them
within the allotted 30 days, or both. The first such letter that appears in the record was dated
May 9, 2015, and was not received by the VA until May 15, 2015, nearly a month after the 30day deadline had passed. And while Petitioner claims that he sent a letter disputing the OBR on
March 27, 2015, there is no copy of that letter in the record, and in any case Petitioner apparently
admits that he did not send that letter to the Chief of Staff, as required.
Petitioner’s failure to abide by the procedures for requesting review constitutes a failure
to exhaust his administrative remedies. While this alone dooms his claim for relief under the

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Mandamus Act, his claim also fails because 38 C.F.R. § 17.107 imposes no clear, nondiscretionary duty to conduct the hearing that Petitioner seeks to compel. Rather, the regulations
at issue here only require that the Chief of Staff forward any timely requests for review to the
Network Director, who must then issue a final decision within 30 days. § 17.107(e). In other
words, the regulation does not even mention, let alone “positively command[] and . . . plainly
prescribe[],” a hearing. Marsh, 815 F.2d at 951.
B. Petitioner’s Right to a Hearing under 38 U.S.C. § 7105
In his response to the government’s Motion for Summary Judgment, Petitioner does not
dispute his failure to abide by the procedural requirements set forth at 38 C.F.R. § 17.107.
Instead, he argues that the government’s reliance on these regulatory provisions is misplaced
because his claim does not rest on the right to request review pursuant to 38 C.F.R. § 17.107.
Rather, Petitioner maintains that his claim is based on 38 U.S.C. § 7105, which provides a right
to a hearing before the Board of Veterans’ Appeals for certain parties who challenge within one
year a decision of the Secretary of Veterans Affairs.
This procedural right is not without limitation, however. The jurisdiction of the Board of
Veterans’ Appeals extends only to “questions in a matter which under section 511(a) of this title
is subject to decision by the Secretary.” 38 U.S.C. § 7104. Section 511(a), in turn, provides
that:
The Secretary 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.
38 U.S.C § 511 (emphasis added). Petitioner’s right to a hearing before the Board of Veterans’
Appeals therefore comes down to whether the issuance of an OBR was a “decision . . . that

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affects the provision of benefits”—in short, a “benefits decision”—within the purview of the
Board’s appellate jurisdiction.
The only legal authority that directly addresses this issue is the Northern District of
California’s decision in Johnson v. United States, No. C-13-2405 EMC, 2013 WL 6502818
(N.D. Cal. Dec. 11, 2013). There, the court held that the issuance of an OBR mandating a police
escort was not a benefits decision within the meaning of § 511 because it could not “deprive or
limit the substantive benefits to which [the plaintiff] was entitled.” Id. at *9. To reach this
conclusion on a matter of first impression, the Johnson court looked to opinions examining
whether decisions by the Secretary pursuant to 38 U.S.C. § 5904(b) and 38 U.S.C. § 5502
constituted benefits decisions. The former provision relates to the suspension of attorneys from
practice before the VA, the latter to the appointment of fiduciaries to receive benefits on behalf
of veterans.
The Federal Circuit has held that Section 5904(b) is not a “law that affects the
provision of benefits,” because the “relationship between the canceling of [an
attorney] and the securing of benefits by his clients is far too attenuated.” Bates v.
Nicholson, 398 F.3d 1355, 1359 (Fed.Cir.2005). On the other hand, courts have
held that the Secretary's appointment of a fiduciary to receive benefits on behalf
of a beneficiary is a benefits decision. See Judkins v. Veterans Admin.,415
F.Supp.2d 613, 619–620 (E.D.N.C.2005); Ramnarain v. U.S. Veterans Admin.,
2012 WL 1041664 at *2–*3 (E.D.N.Y. Mar. 28, 2012). Thus, a decision which
only incidentally affects benefits in a collateral manner does not fall within the
purview of Section 511, whereas a decision which directly affects the handling
and receipt of benefits does.
Id. In applying this analytical framework, the Johnson court stressed that 38 C.F.R. § 17.107
prohibited the VA from issuing OBRs that deprived patients of “the full range of needed medical
care to which [they are] eligible.” Id. (quoting 38 C.F.R. § 17.107). According to the court,
because the police escort requirement could not legally diminish the plaintiff’s benefit

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entitlement, the decision imposing that restriction necessarily escaped classification as a benefits
decision.
Johnson is a thorough and well-reasoned opinion, and I follow it in the present case,
which concerns a similar OBR implemented pursuant to the same set of regulations. Because the
VA’s imposition of a police escort requirement is not a “benefits decision,” Petitioner is not
entitled to challenge it in a hearing before the Board of Veterans’ Appeals. His attempt to
compel a hearing based on 38 U.S.C. § 7105 therefore fails.
IV.

CONCLUSION
The government’s Motion for Summary Judgment is granted and Petitioner’s claims are

dismissed. An appropriate Order follows.

/s/ Gerald Austin McHugh
United States District Judge

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