Brief for the United States — Tyson v. United States

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| Hanan Lesren Trs0%, PETITIONER

Vv.

‘Tae Uwiren Sranes OF “Anaetixoa

- ow WRIT OF GERTIORARE ' TO THE UNITED STATES CIRCUIT

\ ones OF: ur islenenal or THE POURTH CIRCUIT

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INDEX

_ .- Opinions | SS ae ae ee mea ee iuae

J ae ae

Quesijon presented . . . . .....-.. 2222. e ween gece sec eccgece

Statutes and regulations involved -.-_- 5 aS eee eee ee

i dicneiheateennetideucenashwes .cnchenbibenunese

Summary of the argument... -----.----------- slealabpeesalialh*-toniaisbiei

Argument:

I. The statutory provision that the suspension of a limi-

tation period on war risk insurance suits should end

with denial of a pending claim may not be extended

. to allow an additional period for notice of the denial

to be sent the claimant in the absence of clear con-

gressional sanction for the extension._,_._.....__-

II. Where the filing of a claim in the bureau is delayed

until the last day allowed by the statute, sui’ must

ke brought oo the day of denial_..-...-..-. . ....-

III. As the procedure set forth in consent legislatio:: must

be strictly followed, it may be questioned whether

petitioner timely brought suit in any event---_----

CITATIONS —

Albek v. United States, 4 F. Supp. 1020._____. .. eta,

Baraby vy. United States, 1 F. Supp. 443... sdewe

Bonwit Teller & Co. v. United States, 283 U. 8. 258. seolies

Campbell v. Galeno Chemical Co., 281 U. 8. 599..........

Cassarello v. United States, 265 Fed. 326. ...............

Corn v. United States, 74 F. (2d) 438... ........... ——

Creasy v. Unitéd States, 4 F. Supp. 175....... 7, 8, 10, 14,

_ Eastern Transp Co. v. United States, 272 U. 8. 675......

Frederick v. United States, 204 U.S. 695... ... ....022..

Girard Trust Co. ¥. United States, 270°U. 8. 160... 2...

Harrop v. United States, 10 F. Supp. 753...,.«..........

Hipkins v. United States, 1 F. Supp. 505...............-

Hunnewell v. United States, 2 F. Supp. 389 ..........- an”

Miller v. United States, 11 F. Supp. 924...) ...-4-.- neace

Miller v. United Staies, 204 U. 8. 435... .. iaieneneded

Price v. United States, 174 U. 8. 373..........-..-------

'

35134-—35-—1 ox

e&®nn do =

17,

19

22

23 °

8, 10

17, 20

11,15

8

14

10, 13

II

Cases—Continued.

Paze

Reid Wrecking Co. y. United States, 202 Fed. 314.-.-.--_- 20

Roberis v. United States, 66 F. (2d) 273__..__--.----.---- 8, 10

Rock Island, &c. R. R. Co.-v. United States, 264 U.S. 141_-- 21

Schillinger v. United States, 155 U. S. 163__..--_..------ 15

Sheets v. Selden’s Lessee, 2 Wall. 177_._.--.--..-.-.----- 18

Stegelschiffer v. Penn Mut. Life Ins. Co., 248 Fed. 226_-_- 18

Stallman v. United States, 67 F. (2d) 675... - .--- 8, 10, 12-13, 16

United States v. Gower, 71 F. (2d) 366.........-...------ 8, 10

United States v. Michel, 282 U. S. 656......---.-------. 3 17

United States v. Thompson, 71 F. (2d) 860__--__.___----- 8

United States v. Walker, 77 F. (2d) 415_-.-.-.---.-2- --- ‘10, 14

Walton v. United States, 73 F. (2d) 15.........--------- 20, 21

Weaver v. United States, 72 F. (2d) 20__---------------- 8, 11

Young v. United States, 5 F. Supp. 500__---- .------_- Peon S

Statutes:

Act of March 3, 1887, c. 389, 24 Stat. 506 (28 U.S. C., Sees.

762, 763)...... RDS Ad deena tarda tirn os eeu eae ae 25

Act of October 6, 1917, c. 105, Sec. 2, 40: Stat. Ts iscsi ne 25

Section 19, World War Veterans’ Act, 1924, as amended

July 3, 1930, c. 849, 46 Stat. 992 (38 U.S.C., See. 445). 23

North Carolina Code, Sec. 404, (1931) - _- -- - inoweret ewes 21

Miscellaneous: ;

Veterans’ Bureau Regulation No. 3107_.....-.. 2-2 =. - 26

S. J. Res. 65, 74th Cong., ist Sess., 79 Cong. Rece., pp. 3520,

Deed noes aoe ee pe ee ee ae eee eee 27

President’s veto memorandum, Sept. 5, 19385___:--------- 28

S. Rept. No. 1297, 70th Cong., Ist Sess, p. 1-....---.--. 18

H. Rept. No. 1274, 70th Cong., Ist Sess., p. 1,..:----_--- 13

S. Rept. No. 885, .71st Cong., 2d Sess., p. 3-.---.---:----- 13

-H. Rept. No. 874, 71st Cong., 2d Sess., pp. 6-8. _-_------ 13

H. R. Conference Rept. No. 2060, 71st Cong., 2d Sess- - ---

Inthe Supreme Gourt of the United States

October TERM, 1935

No. 192

Hersert Lester TYSON, PETITIONER

1

THE UNITED STATES S OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES crRevu IT

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF. FOR THE UNITED STATES

OPINIONS BELOW

The District Court rendered no opinion. The

opinion of the Circuit Court of Appeals (R. 21-25)

is s reported i In 76 F. (2d) 533.

JURISDICTION

The judgment of the Cir cuit Court of Appeals

was entered on April 3, 1935 (R. 25). The peti-

tion for a writ of certiorari was filed June 29, 1935,

ant Was granted October 14, 1935 (R. 26). The

Jurisdiction of this Court is invoked under Sec-

tion 240 (a) of the Judicial Code, as amended by

the Act of Februar y 13, 1925.

(i)

2

QUESTION PRESENTED

Whether the instant suit was begun within the

time prescribed by Section 19 of the World War

Veterans’ Act, 1924, as amended.

STATUTES AND REGULATIONS INVOLVED

These are set forth in the Appendix, infra,

pp. 23-27.

STATEMENT

_ The petitioner brought suit in the District Court °

of the United States for the: Eastern District of

North Carolina to recover total permanent disa-

bility benefits under a contract of war-risk term

insurance issued to him during his service in-the .

United States Army (R. 2-4). The petition was

filed November 17, 1932, and it was alleged therein

that total permanent disability had existed ever

since the petitioner’s discharge from the Army on

December 18, 1918, nearly fourteen years prior-to

the time when he filed suit (R. 2, 3-4).

- The respondent filed an answer denying the ‘alle-

gations of disability, and also moved to. dismiss

the action for want of jurisdiction in that “the

suit was not instituted within the time in which

the United States has consented to be sued, as pre-

scribed by statute”’ (CR. 5-6). The trial court

made findings of fact and entered judgment for the

defendant dismissing the suit (R. 6-7) after con-

sidering certain undisputed evidence which may

be briefly summarized as follows:

3

Prior to making claim for insurance benefits the

petitioner had corresponded with the Veterans’

Administration and had filed certain forms relat-.

ing to compensation and: disability allowances not

here material, as it is not here contended that such

applications relatéd to the insurance claim (R,

:9-12). i |

On July 2, 1931, the plaintiff signed and exe-

cuted Form 579 of the Veterazis’ Administration

(R. 12-15), which was a form designed for. claims

for permanent total disability benefits under insur-

_ ance policies. ‘ This form was received by the Vet-.

erans’ Administration on July 3, 1931 (R. 7).

On November 16, 1932, the plaintiff received the

following letter (R. 7), dated November 12, 1932,

from H. L. McOoy, Director of Insurance of the

Veterans’ Administration (R. 15-16):

This is with further reference to the

_above-entitled claim. You are informed

that a decision was rendered on November

7, 1932, by the Insurance Claims Council to

the effect that the evidence is not sufficient

to establish as a fact that the former insured

Was totally and permanently disabled at a

time when the contract of insurance was in

force, and therefore the claim has been

denied. |

You may consider such denial final for the

_ purposes of instituting suit under Section 19

of the World War Veterans’ Act, 1924, as

amended.

4

If you accept the denial of the claim by

the Council as final, the suspension of the

statute of limitations provided by Section 19

shall cease from and after the date of this

letter plus the number of days usually re-

quired by the Post Office Department for the

transmission of regular mail from Wash-

ington, D. C., to your last address of record. '

* * ‘ + *

The envelope containing the letter was postmarked

at Washington November 14, 1932 (R. 7).

The petition was filed in this case and a summons

issued on November 17, 1932 (R..1-2). A copy of

the petition was served on the United States Attor-

ney on November 19, 1932 (R. 2) and the summons

and return filed in the court on November 23, 1932

(R..1). a ¢ a

The Circuit Court of Appeals held that the suit

was properly dismissed as not having been com-

menced within the time limited by statute, and

affirmed the judgment (R. 22-26).

SUMMARY OF ARGUMENT

The petitioner seeks a construction of Section 19,

World War Veterans’ Act, as amended, which

would extend the proviso suspending the limitation

period during the pendency of a claim in the Vet-

erans’ Bureau so that the suspension would end‘not

with the denial but with the notification of the

claimant. Because the statute specifically states .

‘that the suspension ends with the denial of the

-

5

claim and fails to provide for any additional period

for notification, three Ciréuit Courts of Appeals —

have held against the construction seught. The de-

cisions to the contrary appear to be at variance

with numerous héldings of this Court that statutes

‘ dealing with the relaxation by the United States of

its sovereign immunity from suit are to be strictly

construed. One decision of particular pertinency

to the question here involved is United States v.

Michel, 282 U. 8. 656, as it was there held that\a

limitation on suits to recover internal-revenue taxes

could not be extended by implication to include

notification of disallowance of the claim for refund

even though the statute required the Commissioner

to notify the taxpayer. é |

Congressional committee reports relating to the -

statute state that the suspension ends on the ‘date

of disallowance of the claim by the director’’, and

if it had been in the conterhplation of Congress that

the suspension period of Section 19 should not end

until notice of disallowance was given it would

seem that the desirability of- specifying as to the

_ Manner and time of notice would have been ap-

parent. The failure, therefore, of Congress to

provide other than that the period ends with

denial may be taken as evidencing a purpose con-

trary to the petitioner’s contention. - |

The bureau charged with the administration of

7 the statute has’ construed the term ‘*denial’’ to

b..

mean the aet of disallowance rather than the act of

p> x,

eee

TaN ad MANIA eas a7

6

“notification, so that regulatory provisions extend-

ing the suspension period to include the sending of

notice of rejection would appear to be without

statutory authority.

But in any event petitioner’s suit was not timely

instituted. Having delayed the filing of his claim

until the last day allowed by the statute, he was

under the necessity of bringing’ suit on the day of

denial, for there was no unexpired portion of the

limitation to be preserved by the suspension period.

This he did not do.

Furthermore, as he failed to comply with all the

conditions of Sections 762 and 763 of Title 28,

U. S. G., until several days after he had filed his

petition, there is authority for holding that his suit,

was not brought until the requirements of service

and return had been met, which would have been

too late under any theory of his case.

ARGUMENT

I ,

THE STATUTORY PROVISION THAT THE SUSPENSION OF A

LIMITATION PERIOD ON WAR RISK INSURANCE SUITS

SHOULD END WITH DENIAL OF A PENDING CLAIM MAY

NOT BE EXTENDED TO.ALLOW AN ADDITIONAL PERIOD ©

FOR NOTICE OF THE DENIAL TO BE SENT THE CLAIMANT

IN THE ABSENCE OF CLEAR CONGRESSIONAL’ SANCTION

FOR THE EXTENSION |

The single question in this case is whether the

petitioner brought his suit against the ‘United

States within the time permitted by Section 19,

infra, p. 23, which in part provides:

7 ’

No suit on yearly renewable term insur-

ance shall be allowed under this section

unless the same shall have been brought

within six years after the right accrued for

which the claim is made or within one

year after July 3, 1930, whichever is the

later date * * *: Provided, That for the

purposes of this section it shall be deemed

that the right accrued on the happening

of the contingency on which the claim is

founded: Provided further, That this limi-

tation is suspended for: the Period elapsing

between the filing in the bureau of the claim

sued upon and the denial of said claim by the

director. *..* * aay

The petitioner alleged in his suit that he became

totally and permanently disabled on December 18,

1918, and claimed insurance benefits from that date —

(R. 3-4). His action instituted in November 1932

was therefore more than six years after the ‘‘right

accrued for which the claim is made’’ and more

than one year after July 3, 1930. Accordingly, it

was barred unless the petitioner could show a pe-

riod of suspension of the statute sufficient to cover

the period’ between ‘‘denial’’ of the claim and the

institution of suit.

‘ It is well settled that ‘‘suit must be brought

within such length of time following denial of the

claim as'was equal to the unexpired portion of the

limitation when the claim was filed.’ Creasy v.

United States, 4 F.Supp. 175, 177(W.D.Va.). Cf.

itt Nie at a i

Ste, HR Te

8

Hipkins v. United States, 1 F.' Supp. 505 (D. C.

Md.); Roberts v. United States, 66 F. (2d) 273

(C. ©, A. 10th) ; Stallman v. United States, 67 F.

(2a) 675 (C. ©. A. 8th); United States v. Gower, °

71 F. (2d) 366 (C. C. A. 10th); United States v.

Thomson, 71 F. (2d) 860 (C. C. A. 10th) ; Weaver

_v. United States, 72 F. (2d) 20 (C. C. A. 4th) ;

Corn v. United States, 74 F. (2d) 438 (C. C, A.

10th). Because the six-year period was not here

applicable, the only period of limitation which:

petitioner might claim was unexpired when his

claim was filed would be the year allowed from July

3, 1930. |

It is apparently conceded by the petitioner that

his claim was filed in the Bureau when it was re-

ceived on July 3, 1931 (Br. pp. 2, 8), and this con- .

cession seems required by the decisions.’ |

‘The petitioner also accepts the conclusion of the

Circuit Court of Appeals that the claim was denied

by the Director on November 12, 1932 (Br. p. 2).

_ He contends, however, that the filing of the claim

1 See Weaver v. United States, supra; Creasy v. United

- States, supra; Young v. United States, 5 F. Supp. 500 (D.C.

Idaho). |

2 While there is ground for argument that the claim was

denied on November 7, 1932, when the decision of the Insur-

ance Claims Council was rendered (R. 15; see Frederick v.

United States, 294 U. S. 695), it is immaterial to the ques-

- tion here presented whether that time or November 12, 1932,

be taken as the date of denial of the claim because in either

‘event the limitation period would have expired, unless the’

petitioner’s cor.tentions herein are sustained.

9

on July 3, 1931, operated to allow him to file suit

a day after the expiration of the period of suspen-

sion. It is further asserted by the petitioner that

the suspension period did not expire with the.de-

nial of the claim, but was extended to include the

time necessary for transmission through the mails

of the notice of disallowance.

To establish that his suit was timely. filed we

submit that the petitioner was under the necessity

of showing (1) that the suit was ‘‘brought’’ on

November 17, 1932, although service was not made

on the United States Attorney until November 19,

1932, and return filed November 23, 1932; (2) that

the filing of his claim on July 3, 1931, did not re-

quire the institution of suit on the day of the denial

of the claim but that an additional day was allowed :

and (3) that the suspension period did not end with

_ the denial of the claim but with the time required

for notice thereof to reach the petitioner through

the ordinary course of the mails. If any of these

contentions fail, the petitioner’s timely institution

of suit cannot be established. .

The first contention of the petitioner, indispen-

sable to any assertion that the suit was timely in-

stituted, is that the suspension of the limitation

period did not ‘‘expire upon action by the director

denying the claim, but upon the expiration of the

number of days usualiy required by the post office

department for the transmission of mail from:

Washington, D. C., to the insured’s last address of

@

' 10

record” (Br. p. 3). Such a eontention has heen

réjected by three Circuit Courts of Appeals and a

number of District Courts. The Cireuit Court of

Appeals for the Tenth Circuit has held adversely

to petitioner's contention in United States v.

Gower, 71 F. (2d) 366, supra, and Corn v. United

States, 74 F. (2d) 438, supra (cf. Roberts v.

United States, 66 F. (2d) 273, supra) ; the Circuit

Court of Appeals for the Eighth Cireuit in Stall-

man v. United States, 67 F. (2d) 675, supra, and

the Cirenuit Court of Appeals for the Fourth Cir-

euit in the instant ease. See also Hiphins v. United

States, 1 F. Supp. 505 (D; C. Md.), supra; Hunne-

well v. United States, 2 F. Supp. 389, 392 (D. C.N.

H.) ; and Harrop vy. United States, 10 F. Supp. 753

(D. C. Nebr.).

Admittedly in conflict with the cases cited is the

decision of the Cireuit Court of Appeals for the

Fifth Cireuit in United States Vv. Walker, 77 F.

' (2d) 415, in which the view is taken that ‘‘ Nothing

in the language of the statute indicates a purpose,

to make a denial of the claim effective prior to de-

livery of notice of it at the place of the claimant’s .

address” (p. 416). In Baraby v. United States, 1

F. Supp. 443 (D. C. Mont.); Creasy v. United

States, 4 F. Supp. 175 (W. D. Va.), supra; and

Albek v. United States, 4 F. Supp. 1020 (EK. D.

N. Y.), it is indicated that the suspension of the

limitation period does not end until actual notice —

of denial of the claim has been received by the

ll

claimant. Certain language in Weaver v. United

States, 72 F. (2d) 20, supra, intimates the same con-

clusion, although citing with approval the author-

ities holding otherwise. It should be pointed out

that this was an earlier decision by the Circuit

Court of Appeals which rendered the decision in

the instant case. ' |

But unless Section 19 requires the interpretation

that the suspension period is to be extended until

notice is given, it is our view that such construction

is not permitted, for this Court has said that it is

axiomatic in Federal jurisprudence that statutes

dealing with the relaxation by the United States of

its sovereign immunity. from suit are to be st rictly

construed and the courts may not extend liability

to suit beyond what*the language of the statute re-

quires. See United States v. Michel, 282 U. 8. 656,

659 ; Kastern Transp. Co. v. United States, 272 U.S.

675, 686; Price v. United States, 174 U. 8. 373, 376.

We believe that this Court’s decision in United

States v. Michel, sxpra, is particularly pertinent to

the question here involved. There a statute was

considered limiting the time within which suit

might be brought to recover taxes illegally assessed

or collected to two years after the disallowance of

the claim by the Commissioner of Internal Reve-

nue and the statute required the Commissioner to

notify the taxpayer of disallowance by mail Within

ninety days. The Commissioner waited three years

before notifying the taxpayer, who filed suit within

12

two years thereafter. It was contended by the tax-

payer that the limitation period of the statute did .

not begin to run against him until after he received

notice of the denial.and that therefore his suit had

been timely filed. This contention was rejected,

the Court saying (p. 659) :

While the statute declares. that the Commis-

sioner within a specified time shall notify

the taxpayer that hts claim has been dis-

allowed, it is nowhere stated that the Com-

missioner’s failure to give the notice will in

any event operate to extend the time for

. bringing suit.

and further, on p. 660:

Ifaving regard to the rule of strict con-

struction to be applied to waivers by the

United States of its sovereign immunity

from suit, the clause reasonably may be read

~ merely as a direction to the Commissioner to

send the notice to claimant without making

‘the failure so to do have the effect of en-

larging the period ‘for suing as otherwise

definitely prescribed. |

It is especially to be noted in the Michel case that

the statute specifically provided for the notification

of disallowance, while in the instant case no such

provision is to be found. The significance of the

omission of.such a provision was commented on by

the Circuit Court of Appeals for the Eighth Cir-

euit in Stallman v. United States, 67 F. (2d) 679,

supra. It was there said:(p. 676) :

13

The conditions upon which this suit ean

be maintained against the government are

those prescribed by the acts of Congress, and -

the court may not. enlarge the rights ae-

corded. * * * As the statute * * *

says nothing about any additional suspen-

sion until notice can be brought home to the

claimant, it is our clear duty to hold that the

suit was barred. |

See also Harrop v. United States, 10 F. Supp.

93, 756 (D. Neb.), supra.

The amendment made to Section 19 by the Act of

May 29, 1928, ¢. 875, 45 Stat. 964, contained practi-

cally the same language with regard to the period

of limitation as the amendment of July 3, 1930,

involved in the instant ease. Both the House and

Senate reports in discussing the proviso dealing

With the suspension of the limitation said:

In computing the limitation period it is

provided that the time from the date of filing

claim for insurance benefits to the date of

disallowance of the claim by the director,

shall not be included." (Italics ours.)

The reenactment of the proviso in substantially

identical language by the amendment of Julv 3,

1930, presumably intended the same computation of

the suspension period and the Committee reports

indicate no changed purpose.” That purpose, as

*Senate Report No. 1297. ‘p. 1. 70th Cong.. Ist Sess. :

House Report No. 1274. p. 1, 70th Cong. Ist Sess,

‘Senate Report No. 885, p. 3, @1st Cong... 2d Sess.: House

Report No. S74, pp. 6-8. 71st Cong., 2d Sess.

H. R. Conference Report No. 2060, 71st Cong.. 2d Sess.

GC

14

\

previously stated, was that the suspension should .

end on the ‘‘date of disallowance of the claim by the

director”? and if it had been in contemplation that

disaHowance should include the notification of the

claimant, it would seem that Congress would have

recognized the desirability of providing specifically

as to the manner and time of notice. Otherwise un-

certainty as to the limitation of the suspension pe-

riod might -be expected, and those decisions which

have held notice necessary reveal that confusion

exists as to whether actual or constructive notice

should be given. Cf. Creasy v. United States, 4 F.

Supp. 175 (W. D. Va.), supra; Baraby v. United

States, 1 F. Supp. 448 (D. C. Mont.), supra, and

United States v. Walker, T7 FB. (2d) 415 (C. C. A.

oth), supra. In the light of the foregoing the fail-

ure of Congress to provide that the suspension pe-

riod should be extended after denial until.the claim-

ant was tiotified of the rejection of his claim is to

be taken, we submit, as evidencing a contrary in-

tent. Girard Trust Co. v. United States, 200 U.S.

163, 169. |

The petitioner urges that Veterans’ Administra-

tion Regulation 3107, infra, p. 26, which provides

for an extension of the suspension period allowed

by Section 19 to include the time required for the

notice of denial to be sent the claimant through the

mails amounts to an administrative construction

of the statute entitled to great weight (Br. p. 6).

Only the term ‘‘denial’’ in the statute could be

here open to question and the petitioner overlooks

15

the fact that the very regulation to which he directs

attention clearly expresses the view that the **de-

nial”’ of a claim occurs before the notice of dis-

allowance provided by the regulation is sent the

claimant. While this construing the denial of the

claim to be the act of disallowance, the regulation

nevertheless attempts to extend the statutory. pe-

riod of limitation suspension to include the time

necessary for notification of the claimant through

the mails. | , |

In Schillinger v. United States, 155 U. S. 163,

166, this Court said in discussing the consent ac-

corded by Congress to suits against the United

States:

Beyond the letter of such consent, the courts ~~

may not go, no matter how beneficial they

may deem.or in fact might be their posses-

sion of a larger jurisdiction over the habili-

' ties of the Government. (Italics ours. )

Also, in Eastern Transp. Co. v. United States,

272 U. S. 675, 686, it was said that a court should’

not enlarge the liability of the United States to

suit ‘‘beyond what the language requires,’’

If the courts are thus circumscribed within the

letter of the consent, a fortiori an administrative

_ Official would have no greater right. to extend the

Government’s liability to suit. As was said by

this Court in Miller v. United States, 294 U.S. 435,

440, with reference to another Veterans’ Adminis-

tration regulation:

35134—35. 2

az Se Pe here piercer a = ? -_ sees

Reins « ne eT eee ee ee

16.

~The only authority conferred, or which

could be conferred, by the statute is to make

regulations to carry out the purposes of the

act—not to amend it.

es also Campbell v. Galeno Chemical Co., 281

U.S. 599, |

Presumably the present Congress also holds the

view that Section 19 requires such a construetion ©

of the word ‘‘denial’’ as would terminate the sus-

pension period with the act of disallowance and not

with the receipt of notice. This seems implicit in

a Joint Resolution adopted by the 74th Congress

(S. J. Res. 65).° One purpose of this resolution

was stated by the President in his veto memoran-

dum’ to be the extension of the period of limitation

provided by Section 19 to apply where ‘‘because

of failure to file claim at an earlier date, very little

. time remained for filing suit after final denial by

the Administrator of Veterans’ Affairs.’’ The

Joint Resolution and the President’s veto memo-

randum appear in the ae herein (infra,

pp. 27-29).

What is said in the veto memorandum with ‘re-

spect to the claimant’s delay in the presentation of .

a claim being the proximate cause of such a situa-

’ Passed the Senate, March 13, 1935, 79 Cong. Rec., Part 4,

p. 3654. Passed the House, August 20, 1935, 79 Cong. Ree.,

Part 13, p. 13825.

° Presidential approval was withheld from this resolution

after the adjournment of Congress, constitutiifg a so-called.

pocket veto. The veto memorandum giving the reasons for

the action taken was signed on September 5, 1935, and filed

at the White House.

a IE Le BPR ee AN Lae nl he

. *.

tion as that of which the petitioner complains, finds

support in the Stallman decision, supra. It is

therein recognized (67 F. (2d) 676) that a claimant

is charged with the knowledge that he had a limited

time to bring suit because of his own delay of many ‘

years before taking any steps to assert a claim, and R

it was therefore ‘incumbent upon him to acquaint

himself with the action of the director on his claim

so that he could act promptly”’ and sue within the

time limit. Cf. United States vy. M tchel, 282 U.S.

656, 659, supra. |

17 ’ P

Ralye eine chasers

arte Sey

- " ‘

Re |

WHERE THE FILING OF A CLAIM IN THF BUREAU IS

DELAYED UNTIL THE LAST DAY ALLOWED RY THE

STATUTE, SUIT MUST BE BROUGHT ON THE DAY OF

DENIAL 7

The petitioner also challenges the view taken by

_ the court below that, even if the claim be treated

as denied when the notice of disallowance was re-

ceived through the mails on November 16, 1932,

the suit filed a day later was nevertheless not

brought within the time limited by the statute. ~

It appears to be the contention of the petitioner

that he gained a full day’s suspension of the stat- -

ute when he filed his claim on July 3, 1931, the

last day of thé limitation period under the amend-

ment of July 3, 1930, and that he was entitled to

have the benefit of an additional day to bring suit

after denial. |

Such contention seems to be answered by Creasy

v. United. States, 4 F. Supp. 175 (W. D. Va.),

(

&

e.

18

supra, where, as in the instant case, a claim was

filed on July 3, 1931, the court pointing out (p.

178) that as that day was the last of the year’s

‘ grace allowed by the amendment there remained

no unexpired portion of the limitation to continue

after the suspension ended with denial.

Under the provision of the statute the filing of

the claim suspended the limitation ‘“‘for the period.

elapsing between the filing in the bureau of the

claim sued upon and the denial of said claim by

. the director.’’ In this case the suspension oper-

. ated between July 3, 1931, and the date of the de-_

nial of the claim, but just as the petitioner would

have had to bring suit at the latest on July 3, 1931,

except for the filing of his claim in the Bureau, so

he was under the necessity of instituting his action

on the day that, with the termination of the suspen-

sion, stood for July 3, naniely, the day of denial.

The fallacy of the petitioner’s contention may

appear more clearly if it be assumed that a claim

was filed on July. 2, 1931. Certainly in such cir-

cumstances only one day of the year allowed by the

amendment remained unexpired, yet the petitioner

would contend the same period to be available if

the claim were filed the following day. Carried to

its logical conclusion; such a contention would al-

low one day more than a year where a claim was

filed on July 3, 1930, and was not denied until after

July 3, 1931. This would not only be opposed ‘to

the provisions of the statute here involved but also

at variance with the general rule that the time °

19

- within which an act is to be done is to be computed

by excluding the first day and including the last.

. See Sheets v. Selden’s Lessee, 2 Wall. 177; Siegel-

schiffer v. Penn Mut. Life Ins. Co., 248 Fed, 226

(C.C.A.2d). ~

The opinion rendered in this case by the Ciréuit

- Court of Appeals refers to a number of cases all ,

computing the suspension period under Section 19

in accordance with the rule above stated (R. 25).

_ The petitioner cites the case of Bonwit Teller &

Co. v. United States, 283 U. S. 258, 265, as sup-

_ porting his contention but we fail to see that the |

decision is in any way pertinent to the quéstion

here involved. |

III

AS THE PROCEDURE SET FORTH IN CONSENT LEGISLATION

MUST BE STRICTLY FOLLOWED, IT MAY BE QUESTIONED

WHETHER PETITIONER TIMELY BROUGHT SUIT IN ANY

EVENT

‘Even if the petitioner should establish that the

suspension period of Section 19 continued until

notice of denial had been received and that: he had

an additional day after such notification to insti-

tute action, there would still remain the question

whether the suit was timely “‘brought’’. This ques-

tion arises from the fact that the procedure for

suits against the United States under Section 19 is

specifically required to ‘‘be the same as that pro-

vided in sections 762 and 763-of Title 28, and section

765 of Title 28 so far as applicable.’’

The last-named section is not here material, but

the first two sections (infra, pp. 25-26) require inter

eee

20

alia that a plaintiff shall file his petition with the

clerk of the court, shall cause a copy thereof to be

served on the district attorney of the United States

in the district wherein the suit is brought, and shall

mail a copy of the petition by registered letter to -

the Attorney General of the United States. The |

plaintiff is also required to file with the clerk of the

court wherein the suit is instituted an affidavit of .

such service and the mailing of such letter.

In the instant case the petition was filed on No-

' vember 17, 1932, but service was not made on the

United States Attorney until two days later (R. 2),

‘and while the record does not reveal if, or when, a

copy of the petition was mailed to the Attorney.

General, it is recorded that ‘summons and return”’

_ were filed November 23, 1932 (R. 1), which entry

may relate to the required affidavit of service.

‘The court below treated the suit as instituted on

November 17, 1932, when the petition was filed,

without discussing the question, but there are au-

thorities Which lend support to a contention that

the suit was not brought until the requirements of

the statute as to service and return had been met.

See Creasy v. United States, 4 F. Supp. 175, 179

(W. D. Va.) supra; Miller v. United States, 11 F.

Supp. 924 (W. D. N. Y.). Cf. Reid Wrecking Co.

v. United States, 202 Fed. 314 (N. D. Ohio) ; Cassa-

rello v. United States, 265 Fed. 326 (M. D. Pa.).

In Walton v. United States, 73 F. (2d) 15, the

Circuit Court of Appeals for the Eighth Circuit,

while recognizing that when the United States con-

° e-

a - ; —

21

~ sents to be sued the unisadiave prescribed by Con-

gress must be strictly followed, nevertheless took

the-view that the sections in question did not con-

‘trol the institution of suit. It was held that the

time of the commencement of the action is to be de-

termined according to the law of the State in which

the suit was brought, pursuant to the Conformity

Act. <—

As the law of North Carolina, wherein the instant —

suit was brought, provides that an action is com-

- menced when summons is issued (Sec. 404, N. Car.

Code, 1931), it could possibly be contended under

the authority of the Walton decision that this suit

was instituted with the filing of the petition and the

issuance of summons on November 17, 1932.

We believe it may be questioned, however,

' whether the Walton decision accords with the prin-

ciple frequently recognized by this Court that strict

construction is to be given any statute waiving the

sovereign immunity. of the United States from suit.

In Kock Island &c. R. R. Co. v. United States, 254 |

U. S. 141, 143, this Court said:

Men must turn square corners when they

deal with the Government. If it attaches

even purely formal conditions to its consent

to be sued those conditions must be com-

plied with. !

In the light of the above and similar holdings, —

we are inclined to the view that a suit against the

United States pursuant to the provisions of Sec-

tions 762 and 763 of Title 28, U.S. C., may not be

said to be instituted until all the conditions of the

22

statute have been met. If such is the correct view,

it further establishes that the petitioner’s suit.

herein was not timely brought.

‘ ‘ “CONCLUSION

For the reasons stated, we respectfully submit

that the judgment of the Circuit Court of Appeals

should be affirmed. .

STANLEY REED,

Solicitor General.

. 7 Wit G. BEARDSLEE,

Director Burea of War Risk Litigation.

| Wixsur C. PICKETT,

ANDOLPH ©, SHAW,

_ Special Assistants to the Attorney General.

. MARVEN SMITH,

Attorney.

DECEMBER 1935.’

APPENDIX.

STATUTES AND REGULATIONS. INVOLVED

Section 19 of the World War Veterans’ Act,

1924, as amended July 3, 1930, ¢. 849, Sec. 4, 46 Stat.

992, provides in part as follows (38 U. S. C., See.

445) :

In the event of disagreement as to claim,

including claim for refund of premiums, un-

der a contract of insurance between the

bureau and any person or persons claiming

thereunder an action on the claim may be

brought against the United States either in

the Supreme Court of the District of Colum-

bia or in the district “court of the United

States in and for the district in which such

persons or any one of them resides, and

jurisdiction is hereby conferred upon such

courts to hear and determine all such .con-

«troversies. .The procedure in such suits

shall be the same as that provided in sections ~

) and 6 of the Act entitled “‘An Act’ to pro-

_ vide for the bringing of suits against the

Government of the United States,’’ ap-

proved March 3, 1887, and section 10 thereof

so far as applicable. * * *

No. suit on yearly renewable term insur-

ance shall be a'lowed under this section un-

less the same shei have been brought within

six years after the right accrued for which

the claim is made or within one year after

the date of approval of this amendatory °

Act, whichever is the later date, and

no suit on United States Government life

(23)

24

(converted) insurance -shall be allowed un-

der this section unless the same shall have

been brought within six years'after the right

acerued for which the claim is made: Pro-

vided, That for the purposes of this section

it shall be deemed that the right accrued on

the happening of the contingency en which

the claim is founded: Provided further,

That this limitation is suspended for the

period elapsing between ‘the filing in the bu-

reau of the claim sued upon and the denial

of said claim by the director. Infants, in-:

sane persons, or persons under other legal

disability, or persons rated as incompetent

or insane by the bureau shall have three~

years in which to bring suit after the removal

of their disabilities. If suit is seasonably

begun and fails for defeet in process, or for

other reasons not affecting the merits. a new

action, if one lies, may be brought within a

year though the period of limitations has

elapsed. Judgments heretofore rendered

against the person or persons ¢laiming un-

der the contract of war-risk insurance on the

ground that the claim was barred by the stat-

ute of limitations shall not be a bar to the

institution of another suit on the same claim.

No State or other statute of limitations shall

be applicable to suits filed under this section.

* sf +e - * * *

The term ‘‘claim’’ as used in this section,

means any writing which alleges permanent

-and total disability at a time when thé con-

tract of insurance was in force, or which ~

uses words showing an intention to claim

insurance benefits and the term ‘‘disagree-

ment’’ means a denial of the claim by the

director or someone acting in his name on an

appeal to the director. This section, as.

- amended, with the exception of this para-

graph, shall apply to all suits now pending

20

_ against the United States under the provi-

sions of the War Risk Insurance Act, as

amended, or the World War Veterans’ Act,

"1°24, as amended. ee

Secuon 13 of the. War Risk Insurance Ac, as

amended October 6, 1917, ¢. 105; See. 2, 40 Stat.

399, provides in part as follows:

That the director, subject to the general

direction of the. Secretary of the Tre; sUury,

shall administer, execute, and enforce the

provisions of this Act, and for that purpose

have full power and authority to make rules

and regulations, not inconsistent with the

provisions of this Act, necessary or appro-

priate to carry out its purposes, * * *

The Act of March .3, 1887, ¢. 399, 24 Stat: 506,

provides:

Sec. 5. That the plaintiff in any suit

brought under the provisions of the second

section of this act shall filé a petition, duly

verified with the clerk of the respective

court having jurisdiction yf the case, and

in the district wheré the plaintiff resides.

Such petition shall set forth the full name

and residence of the plaintiff, the nature of

his claim, and a suecinet statement of the

facts upon which the claim is hased, the

money or any other thing claimed, or the

damages sought to be recovered and praying

the court for a judgment or decree upon the

facts and law. (28 U.S. C., Sec. 762.)

Sec. 6. That the plaintiff shall cause a

copy of his petition filed under the preced-

ing section to be served upon the district

attorney of the United States in the district

Wherein suit is brought, and shall mail ZR

copy of the same, by registered letter, to

the Attorney-General of the United States,

and shall thereupon cause to be filed with

eS eT Oe “ Moan seek “ol - ieihilind SPAS 6 ES oe att wo aity,

26

the clerk of the court wherein suit is insti-

tuted an affidavit of such service and the

mailing of such letter. It shall be the duty

of the district attorney upon whom service

of petition is made as aforesaid to appear

and defend the interests of the Government

in the suit, and within sixty days after the

- service of petition upon him, unless the time

should be extended by: order of the court

made in the ease to file a plea, answer, or-

demurrer en the part of the Government,

and to file a notice of any counterclaim, set-

off, claim for damages, or other demand or

defense whatsoever of the Government in

the premises: Provided, That should the

district attorney neglect or refuse to file the

plea, answer, demurrer, or defense, as re-

quired, the‘ plaintiff may proceed with the

ease under such rules as the court may

adopt in the premises; but the plaintiff shall

not have judgment or. decree for his claim,

or any part thereof, untess he shall estab-

lish the same by proof satisfactory to the

court. (28 U.S. C., Sec. 763.)

Veterans’ Bureau Regulation No, 3107, so far as

herein relevant. reads as follows:

If a decision is rendered by the insurance

claims council adverse to the allegation

made by the claimant, a letter so advising

the claimant will be concurrently prepared

and sent to the claimant at his last address

of record. Said letter will advise the claim-

ant the date on which the council denied the

claim, and that the claimant may consider

such denial final for purposes of institut-

ing suit under section 19 of the World War

veterans’ act, 1924, as amended. Said letter

should further advise the claimant that if he °

accepts the denial of the claim by the council

as final, the suspension of the statute of limi-

- 27

tations provided by section 19 shall CeASEs

from and after the date of this letter plus

the number of days usually required by the

post-office department for the transmission

of regular mail from Washington, D. C., to

the claimant’s last address of record, and

that his case folder has been forwarded to

the appropriate office or station (giving

name and address of office or station) and

that any future inquiries should be directed

to that office or station. * * * (November |

1, 1931.) (Italies ours. )

Joint Resolution (S. J. Res. 65, 74th Cong., 1st

Sess.), adopted August 20, 1935, is as follows:

[S. J. Res. 65, 74th Congress, 1st Session]

In the House of Representatives. March 15, 1935.

Referred to the Committee on World War Veterans’

Legislation. .

- JOINT RESOLUTION To extend the period of

suspension of the limitation governing the filing

of suit under section 19, World War Veterans’ Act,

1924, as amended.

Resolved by the Senate and House of Rep-

resentatives of the United States of America

in Congress assembled, That in addition to

the suspension of the limitation for the pe-

riod elapsing between the filing in the Vet-

erans’ Administration of the claim under a

contract of insurance and the denial thereof

by the Administrator of Veterans’ Affairs

or someone acting in his name, the claimant

shall have ninety days from the date of such

denial within which to file suit as herein

provided. This resolution is made effective

as of July 3, 1930, and shall apply to all-:suits

now pending against the United. States

under the provisions of section 19, World

War Veterans’ Act, 1924, as amended, and

ee

7 ee a ee ee Ne ;

MRI 2 tou

r

°

MSS ELISEO LD PETS Da TTA DUM BAL hl oe DAN ait

28

any suit which has been dismissed solely on

. the ground that the period fer filing suit has

elapsed but wherein the extension of the

' period for filing suit as prescribed herein

would have permitted such suit to have been

heard and determined, may be reinstated.

_within ninety days from the date of enact-

ment of this resolution: Provided, That-on

and after the date of enactment of this reso-

lution, notice of denial of the claim under a

contract of insurance by the Administrator

of Veterans” Affairs or someone acting in

his name shall be by registered mail directed

to the claimant’s last address of record.

The President’s veto memorandum, dated Sep-

tember 5, 1935, is as follows:

I have disapproved ‘‘S. J. Res. 65, Joint

Resolution to extend the period of suspen- .

sion of ‘the limitation governing the filing of

suit under Section 19, World War Veterans’

Act, 1924, as amended’’ for these reasons:

Apparently the main purpose of this Res-

- olution is to afford further opportunity for

persons to sue on their War Risk Insurance

where such action was not taken because of

the passage of Public No. 2, or, because of

failure to file claim at an earlier date, very

little time remained for filing suit after final

denial by the Administrator of Veterans’

Affairs. Any meritorious claim can be filed

and allowed by the Veterans’ Administra-

tion without recourse to the courts. =

The Government’s policy in permitting

suits upon War Risk Insurance has been one

. of great liberality. It appears to -me, in

the absence of clear and satisfactory evi-

dence explaining or justifying the long delay

before bringing suit, that the very delay

would be an indication of the weakness of the

: _ —— 5 MAMAS DADE Kia ab Sea DRS CHAN AeA, ORL Ce aR ana

29

claim. These situations only arise because

of the failure of the claimant to file his claim

more promptly and is in no sense the fault

of the Government. |

The Government’s liability over and above

all premiums received'on War Risk Insur-

ance now exceeds a billion and three-quar-

ters. This legislation potentially would add

greatly to the final cost. I do not feel that a

valid reason exists for this additional

expenditure. or et

| FRANKLIN D. ROOSEVELT. .

_ THE Waite Hovszr,

Septeniber 5, 1935. °

U.S. GOVERNMENT PRINTING OFFICE: 1938

4