Robert L. Solze v. Eric K. Shinseki , 26 Vet. App. 421 ( 2013 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-1519
ROBERT L. SOLZE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, LANCE, and DAVIS, Judges.
ORDER
This appeal concerns matters relating to VA's fiduciary activities in connection with
managing a veteran's VA benefits. On May 22, 2013, the appellant, veteran Robert L. Solze, through
counsel, filed a Notice of Appeal from a January 24, 2013, decision of the Board of Veterans'
Appeals' (Board) that, among other actions, appointed the veteran's daughter, Lois M. Dimitre, as
temporary VA fiduciary to manage the appellant's benefits pursuant to 38 C.F.R. § 13.63 (2012).1
After the scheduling of a Court conference in this appeal, pursuant to Rule 33 of this Court's Rules
of Practice and Procedure (Rules), the appellant informed the Court that, in July 2013, the VA Office
of Regional Counsel in Augusta, Maine, filed in a state probate court a petition for appointment of
conservator for Mr. Solze relating to Mr. Solze's VA benefits. At the request of the appellant, the
Court stayed proceedings until December 6, 2013, based on a tentative agreement concerning the
appointment of a conservator for Mr. Solze that was reached by the parties in the ongoing probate
court proceeding.
On December 6, 2013, the appellant filed a motion to withdraw the appeal based on a final
agreement of the parties, in York County Probate Court in Maine, that he asserts has "resolved the
controversies before the Court" in this appeal and attaches a copy of the agreement. Dec. 6, 2013,
Motion to Withdraw Appeal, Exhibit B ("Assented to Motion for Conservatorship Order Limitations
and Condition" filed in York County Probate Court). Attached to this order is a copy of the parties'
"Assented to Motion for Conservatorship Order Limitations and Condition" that was filed in York
1
Also, on May 22, 2013, the Court concluded proceedings in Solze v. Shinseki, No. 12-1512, a petition case
filed by the appellant's counsel, which sought to compel the Secretary to, inter alia, pay Mr. Solze his awarded VA
benefits through Ms. Dimitre. At that time, the Court denied a motion for full-Court review of a January 4, 2013, panel
decision denying the petition, Solze v. Shinseki, 26 Vet. App. 118 (2013) (per curiam) (denying the petition but expressing
concern "over VA's reluctance to utilize other methods by which it is authorized to distribute benefits during a dispute
over the appointment of a fiduciary, namely 38 C.F.R. § § 13.59 [(Court-appointed fiduciary)] and 13.63 [(Payment to
custodian-in-fact")] ."). Full-Court action followed the panel's May 3, 2013, denial of the appellant's motion for panel
reconsideration. Solze v. Shinseki, 26 Vet. App. 299 (2013) (per curiam). This Court issued its mandate on July 23,
2013.
County Probate Court and approved by the Probate Court. The agreement itself specifies that the
probate court appoints Ms. Dimitre as the conservator of Mr. Solze, provides that VA will certify
Ms. Dimitre as the VA fiduciary for Mr. Solze's VA benefits, and establishes other limitations and
conditions, including a VA field examination and the securing of a bond. Id. The agreement also
provides that "VA agrees to rely on the procedures and remedies available under Maine Probate
Code to resolve any concerns or disputes that may arise about the accountings and/or the use of funds
and will bring any such concerns or disputes to the attention of the [York County Probate] Court."
Id. at para 4. The agreement further provides for certain VA actions to be expedited. The appellant
stated that the Secretary "takes no position" on the motion.
Pursuant to a Court order directing that the Secretary clarify his position, the Secretary filed
a response noting that he agrees that withdrawal of the appeal is proper based on the agreement in
York County Probate Court but does not agree with the "gratuitous statements" contained in the
appellant's motion concerning the Secretary.2 Dec.. 6, 2013, Secretary's Response to Court's Order
at 1.
Accordingly, the Court will grant the appellant's motion to dismiss his appeal and issue
mandate as part of this order. See U.S. VET. APP. R. 41 (regarding issuance of mandate), 42
(regarding voluntary dismissal).
On consideration of the foregoing, it is
ORDERED that the appellant's motion to dismiss the appeal is GRANTED and this appeal
is DISMISSED. Under Rule 41(b), this order is the final judgment and mandate of the Court.
See U.S. VET. APP. 41(b).
DATED: December 20, 2013 PER CURIAM.
2
In ruling on the instant motion, the Court need not consider the characterizations offered by the appellant's
counsel with respect to the agreement's provisions and the Secretary's actions.
2