# Brief for the United States — Tyson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1936
- **Citation:** 297 U.S. 121

## Text

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OoronEr TERM, 1985.

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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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i ee os cate :

T
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0303%3A4. Public record. Not legal advice.