Petition for Writ of Certiorari — United States v. Thomas

INDEX

Page

INE 5g nncyre Gs Sn die oo eu Somarhd Sena enae eae

RERMRMIEEIONSS ira re Cars ck cats ioe Crue ee OER 2

I I asso as FS cGh Nees EVE AR ELM e EOL 2

EE o's ora a cay pad hea eee ee Ry mee 2

LN 2 gio ERIS ra NG Ore aR a en oe UR RS or ry 3

Reasons for granting the writ ........................... 5

Eo at Let eat rns ad gk eras epee haat 15

CITATIONS

Cases:

Apex Hosiery Co. v. Leader, 310 U. S. 469..... oe it

Bland v. United States, 185 F. 2d 395................ 8

Bourbeau v. United States, 76 F. Supp. 778............ 14

Brinkerhoff v. Merselis, 24 N. J. Law 680.............. 8

Davis v. Gallagher, 37 App. Div. 626, 55 N.Y.S. 1060... . 8

Great Northern Ry. Co. v. United States, 315 U. S. 262... 11

Howard v. United States, 2 F.2d 170................. 8, 10, 14

Lyerly v. United States, 162 F. 2d 79.................. 14

McCardle, Estate of, 95 Colo. 250, 35 P. 2d 850......... 8

Meisner v. United States, 295 Fed. 866................ 10

National Lead Co. v. United States, 252 U. S.140...... 11

Niewiadomski v. United States, 159 F. 2d 683, certiorari

oe Um CS 8 en Pe ere 4

Norwegian Nitrogen Products Co. v. United States, 288

MGM MAM hel ee as tele Ged cea aan 11

Powledge v. United States, 88 F. Supp. 561............ 14,15

Reynolds v. United States, 96 F. Supp. 257............ 14

Strauss v. United States, 160 F. 2d 1017, certiorari de-

PAG eO OO. 2c ohn oh Me oko aa de 8,14

Tudor v. United States, 36 F. 2d 386, appeal dismissed

by shipulation, 38 F. 24 1020................... . 10-11, 14

United States v. American Trucking Assns., Inc., 310

(Ogi el 2 SRN or nen ee eee ee RO EAN ae anes ah Eee 3 11

United States v. Citizens Loan d: Trust Co., 316 U. S.

£1 ER Ban ete ot Sry eed Pani ae Bee eine Tero TE Ne ng 11

United States v. Madigan, 300 U.S. 500............... 11

Vonder Horst v. Vonder Horst, 41 Atl. 124............ 8

Zazove v. United States, 156 F. 2d 24................. 8

Statutes and Regulations:

Act of March 20, 1933, 48 Stat. 8, 38 U.S.C. 700 et seq... 5

Act of December 19, 1941, 55 Stat. 844................ 5

(1)

384

Statutes and Regulations—Continued

Page

Act of July 11, 1942, 56 Stat. 657... ....... 13

Act of July 13, 1943, 57 Stat. 554, 556:

So Se ie Seen ee ane 5

RUIN 2 en occ ce accee ns wo 5

Act of August 1, 1946, 60 Stat. 781, 38 U.S.C. 801, et seq.,

RD ler en atria cin ca kane sew be aa 6,7

Career Compensation Act of 1949, 63 Stat. 804, 805, 37

U.S.C., Supp. IV, 232, Section 102(g).............. 13

National Service Life Insurance Act of 1940, 54 Stat.

1008, as amended by the Act of July 11, 1942, 56 Stat.

657, and the Act of August 1, 1946, 60 Stat. 781, 38

U.S.C. 801, et seq.:

SUNN Soo ng en edie a Se 13

Recto OS cia cane Stine waren 3, 5,12

ON See _ 2, 6, 7, 12,13

eo eh EU A wins sea aan Sie 7

PO eS hur ae a moc eam Ree 6

RC a 8008 Fla rg a ech iow iercéce Ck sons 11

OL SHEE Ss 2 WAS Sere ee ee 3

Pay Readjustment Act of 1942, 56 Stat. 359, 361, as

amended by the Act of November 24, 1945, 59 Stat.

587, 37 U.S.C. (1946 ed.) 104, Section4 ........... 13

| Second Revenue Act of 1940......................... 12

| Servicemen’s Indemnity Act of 1951, P.L. 23, 82nd Cong.,

IN BR IRE ae Ne see Ce eek Cine mae a 7

War Risk Insurance Act of 1917, 40 Stat. 398, 400-401,

as amended by Section 4 of the Act of December 24,

ee IO oni oa see ae ne dintins 9

fase TR one eg ip a eo re ll

INI rhe Were Ne a ae ow es 5

World War Adjusted Compensation Act of 1924, 43

Stat. 121, 130, 38 U.S.C. 667 (ce) :

On eA eS eet ee 11

RTI tice Scr Oe a ed a iw ee eae mn 5

World War Adjusted Compensation Act of 1924, 43

oR 5

World War Veterans Act of 1924, 43 Stat. 607, 38 U.S.C.

423(5):

RE ora eon re tg Bee 5

RM 0, hers oC rare ie 6 aie awa aon Oke ers 11

Cr IN ono cok ya Gupta ea dns 5

Veterans Regulation No. 10, 38 U.S.C. pp. 4277, 4278... 5

Miscellaneous:

ROI ode a roatnla see x e0h Ween cane en.s 13

eta UN aaacd a 8 wisn wih Uns ainete a 10

I I oc gai ea bse ch cece een eee sk 10

OO En pemey A gee ahaa TL eg te tere he ee ee

bee

Miscellaneous—Continued

Page

he I rer 10

the ee Bo a Te 9,10

PI oss eos vn cari cecsvcancceccs. 9,10

CN os ev wc vb baa cue seeecicccl.. 10

a 2 ene ne 10

te aerial 10

SS Comp. Mes. 10016-19005 .......................... 12

lt, 12

86 Cong. Ree. 12945-12970 .......................... 12

86 Cong. Rec. 12962-12963 .......................... 12

46 C. J. (Parent & Child) pp. 1334-1337.............. 8

1 Decisions of the Administrator of Veterans’ Affairs,

Decision No. 536, p. 851........................... 10, 12

Hearings before the Subcommittee of the Committee on

Interstate and Foreign Commerce, House of Repre-

sentatives, 66th Cong., lst sess.:

Ee et ee ga kg a en aD 10

ca Vee Cee ata Peak eienks ee 10

rk Sa es NG TSN Cana eaeices teen 10

EAE ES AR ee recente 10

er rea de unis ga Ce taa ides kine 10

EE SOS Gee A cea eRe ive Mee 10

ESS NS Roe, ne Be es 10

H. Rep. No. 2002, 79th Cong., 2d sess., p.2............. 13

a OS eee ere 10

nil ec cect te, 10

© Op. GS. BOGB, C. GOOO8.. 8... ccc ccccceaee 10

ve MR 10

S. Rep. No. 403, 78th Cong., Ist sess. p.9.............. 12

S. Rep. No. 1705, 79th Cong., 2d sess., p.2............. 13

Inthe Supreme Court of the Vinited States

OcToBER TERM, 1951

No. 234

UNITED STATES oF AMERICA, PETITIONER

v.

Luua Hickty THomas

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to re-

view the judgment of the United States Court of

Appeals for the Sixth Circuit, entered in the above-

entitled case on May 14, 1951.

OPINIONS BELOW

The memorandum opinion of the United States

District Court for the Eastern District of Ten-

nessee, Northern Division (R. 41) is not reported.

The opinion of the United States Court of Appeals

for the Sixth Circuit (R. 69) is reported at 189 F.

2d 494.

(1)

2

JURISDICTION

The judgment of the Court of Appeals was en-

tered on May 14, 1951 (R. 69). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254.

QUESTION PRESENTED

Whether one claiming to be in loco parentis to

an insured serviceman is a permissible beneficiary

under Section 602(g) of the National Service Life

Insurance Act where the relationship had its in-

ception after the insured, who was neither physi-

cally nor mentally incapacitated, had reached his

majority.

STATUTES INVOLVED

The pertinent provisions of the National Service

Life Insurance Act of 1940, 54 Stat. 1008, as

amended by the Act of July 11, 1942, 56 Stat. 657,

and the Act of August 1, 1946, 60 Stat. 781, 38

U.S.C. 801, et seq., read as follows:

Section 602(g) :

The insurance shall be payable only to a

widow, widower, child (including a stepchild

or an illegitimate child if designated as bene-

ficiary by the insured), parent, brother or

sister of the insured. The insured shall have

the right to designate the beneficiary or bene-

ficiaries of the insurance, but only within the

classes herein provided, and shall, subject to

regulations, at all times have the right to

change the beneficiary or beneficiaries of such

insurance without the consent of such bene-

ficiary or beneficiaries but only within the

3

classes herein provided: Provided, That the

provisions of this subsection as to the re-

stricted permitted class of beneficiaries shall

not apply to any national service life insurance

policy maturing on or after August 1, 1946.

Section 601(f) :

The terms ‘parent’, ‘‘father’’, and

‘“‘mother”’ include a father, mother, father

through adoption, mother through adoption,

persons who have stood in loco parentis to a

member of the military or naval forces at any

time prior to entry into active service for a

period of not less than one year, and a step-

parent, if designated as beneficiary by the in-

sured.

STATEMENT

Respondent brought this action against the

United States to secure the proceeds of a National

Service Life Insurance policy taken out by Casper

W. Hinds, which designated her as beneficiary, de-

scribing her as ‘‘(Aunt) Foster-Parent”’ (R. 64,

65). The Veterans Administration had denied her

claim on the ground that she was not within the

permissible class of beneficiaries under Section

602(g) of the National Service Life Insurance Act,

supra.

Upon the denial of her claim by the Veterans

Administration, respondent instituted this suit in

the United States District Court for the Eastern

District of Tennessee, as authorized by Section 617

of the Act (38 U.S.C. 817). At the trial, the facts

regarding the close relationship between respond-

ent and the insured, which we do not here question,

were brought out in detail (R. 70-72). For the

purpose of this petition, it need only be noted that

the relationship had its inception when the insured

was 22 years of age (R. 6, 70). The District Court,

applying the test apparently set forth by the court

below in Ntewiadomski v. United States, 159 F. 2d

683, 687, certiorari denied, 331 U. S. 850, that one

could not stand in loco parentis to an adult, dis-

missed the action, holding that respondent did not

stand in loco parentis to the insured and hence was

not within the permissible class of beneficiaries

under Section 602(g) of the Act (R. 42-43).

On appeal, the court below disavowed its prior

dictum in the Niewiadomski case, supra. The court

conceded that ‘‘it is a familiar rule of construc-

tion of statutes that where words and phrases have

a well-known common law meaning, it will be pre-

sumed that they are used in the sense in which

they were understood at common law.’’ (R. 79).

It concluded, however, that there never was any

generally accepted common law meaning of the

term in loco parentis, that the ‘‘natural and ordi-

nary meaning”’ is to be given the term and that

the statute is to be liberally construed to carry out

the intention of the insured. Finding that, upon

the evidence before it, respondent stood in loco

parentis to the insured at the time of his death,

even though the relationship did not have its in-

a

i;

3)

ception until after the latter reached maturity, it

accordingly reversed the judgment of the district

court and remanded the case for entry of judg-

ment in respondent’s favor. (R. 84-85.)

REASONS FOR GRANTING THE WRIT

1. The term in loco parentis, as it appears in Sec-

tion 601(f) of the National Service Life Insurance

Act, supra, has been employed by Congress since

1919 in various statutes pertaining to veterans’

benefits. See, ¢.g., Section 22 of the War Risk In-

surance Act of 1917, 40 Stat. 398, 400-401, as

amended by Section 4 of the Act of December 24,

1919, 41 Stat. 371; Section 607(¢) of the World

War Adjusted Compensation Act of 1924, 43 Stat.

121, 130, 38 U.S.C. 667(c); Section 3(5) of the

World War Veterans Act of 1924, 43 Stat. 607,

38 U.S.C. 423(5) ; Section 8 of the Act of J uly 13,

1943, 57 Stat. 554, 556, which amended Veterans

Regulation No. 10, 38 U.S.C., pp. 4277, 4278. In

? The meaning of the term in loco parentis was pertinent

under these Acts in relation to benefits other than insurance.

Thus, the World War Adjusted Compensation Act provided

for a bonus for each day of active service between April 5,

1917, and July 1, 1919 (see 38 USC. 601, 661); the World

War Veterans Act granted compensation for disability or

death, resulting from injury or disease contracted in the

military service (see 38 U.S.C. 471, 472); and Veterans

Regulation No. 10 relates to the compensation and pension

payments provided for by the Act of March 20, 1933, 48

Stat. 8, as amended, 38 U.S.C. 700 et seg., C. 12 (see 38 US.C.

700, 725, 739, 741). It should be noted that Veterans Regula-

tion No. 10 is also presently applicable to the compensation

and pension benefits afforded veterans of World War II by

the Act of December 19, 1941, 55 Stat. 844, and by Section

9(a) of the Act of July 13, 1943, 57 Stat. 556. (See also note 9,

infra, p. 13.

6

administering the benefits afforded by those stat-

utes, the Veterans Administration and its prede-

cessors have for the past 31 years, consistently and

uniformly construed the term in loco parentis as

inapplicable to those persons whose alleged ‘‘par-

ental’’ relationship to a serviceman had its in-

ception after the serviceman, who was not physi-

cally or mentally incapacitated, reached his ma-

jority. The court below, in upsetting this long-

established administrative practice, has thrown

into doubt the validity of untold thousands of pre-

viously adjudicated claims for benefits probably

running into millions of dollars,? and has decided a

question of substantial present and future import-

ance to the administration of the various veterans’

benefit laws.

Although the permissible class of beneficiaries

set forth in Section 602(g) of the Act was super-

seded by Section 4 of the Act of August 1, 1946,

60 Stat. 781, 38 U.S.C. 802(g), the interpretation

of the term in loco parentis nevertheless involves

a present, recurrent problem since Section 602(g)

is fully applicable to all policies maturing before

? As to payments made under the National Service Life

Insurance Act. Section 602(1) (38 U.S.C. 802(1)) relieves

the Veterans Administration of liability for the erroneous pay-

ment of benefits only where the payments were made to per-

sons represented by the insured to be within the permitted

class of beneficiaries, and does not do so where the claim of

the designated beneficiary is denied and payments are made to

others.

7

that date.’ Further, as to such policies, similar

questions are likely to arise under Section 602 (h)

(3) (C) of the Act, which provides that, upon the

death of any beneficiary, the remaining install-

ments of insurance, if there be no widow, widower,

or child of the insured, shall be paid ‘‘to the parent

or parents of the insured who last bore that rela-

tionship, if living, in equal shares”? (38 U.S.C.

802 (h) (3) (C)). Moreover, Section 3 of the Serv-

icemen’s Indemnity Act of 1951, P.L. 23, 82nd

Cong., Ist sess.,* by its use of the term in loco

* As amended in 1946, Section 602(g) permits, as to policies

maturing after August, 1946, the designation of any bene-

ficiary desired by the insured without restriction as to class.

* In pertinent part, the Servicemen’s Indemnity Act of 1951,

grants to “any person in the active service of the Army, Navy,

Air Force, Marine Corps, Coast Guard,” on and after June 27,

1950, automatic insurance “without cost to such person, against

death in such service in the principal amount of $10,000.”

(Section 2). Section 3 provides that the indemnity is to be

paid “only to the surviving spouse, child or children (including

a stepchild, adopted child, or an illegitimate child if the latter

was designated as beneficiary by the insured), parent (in-

cluding a stepparent, parent by adoption, or person who stood

in loco parentis to the insured at any time prior to entry into

the active service for a period of not less than one year),

brother, or sister of the insured, including those Ui the half-

blood and those through adoption.” Section 3 further states

that the insured may designate the beneficiary or beneficiaries

of the indemnity within those classes, designate the propor-

tion of the principal to be paid to each, and change the bene-

ficiary or beneficiaries without the consent thereof but only

within the specified classes. It also provides that “If the

designated beneficiary or beneficiaries do not survive the

insured, or if none has been designated, the Administrator

shall make payment of the indemnity to the first eligible class

of beneficiaries according to the order set forth above, and

in equal shares if the class is composed of more than one

person.”

8

parentis, presents the same continuing question of

construction.

The decision below, while in accord with the de-

cision of the Court of Appeals for the Seventh

Circuit in Zazove v. United States, 156 F. 2d 24

(C.A. 7), is in conflict with the views expressed by

the Court of Appeals for the Fifth Circuit in Bland

v. United States, 185 F. 2d 395, 396 (C.A. 5).

Strauss v. United States, 160 F. 2d 1017, 1019 (C.A.

2), certiorari denied, 331 U. S. 850. This conflict,

unless resolved, is apt to produce inconsistent and

inequitable results under the newly enacted Serv-

icemen’s Indemnity Act, supra, as well as the Na-

tional Service Life Insurance Act. In view of the

substantial importance of the question, and the con-

flict of views among the several courts of appeals,

we respectfully ask the Court for an authoritative

ruling.

2. The court below, upon its analysis of the cases,

concluded that there never was any generally ac-

cepted common law definition of the term in loco

parentis and held that the words are to be given

their ‘‘natural and ordinary meaning.”’ But even

if it be assumed that the court’s premise as to the

lack of any precise common law definition of the

term is correct,’ it by no means follows that those

° But see e.g., Howard v. United States, 2 F. 2d 170 (E.D.

Ky.); Estate of McCardle, 95 Colo. 250, 35 P. 2d 850;

Vonder Horst v. Vonder Horst, 41 Atl. 124 (C.A. Md.);

Brinkerhoff v. Merselis, 24 N. J. Law 680; Davis v. Gallagher,

37 App. Div. 626, 55 N.Y.S. 1060, 46 C.J. (Parent & Child)

pp. 1334-1337.

9

words should be given a loose, all-embracing con-

struction. Although the term in loco parentis is

not defined in any of the Acts in which it appears,

we submit that Congress intended it to be con-

strued strictly and in accordance with what the

legislators considered to be its narrow legal sense.

The words in loco parentis first appeared in the

War Risk Insurance Act of 1917, supra, as

amended by Section 4 of the Act of December 24,

1919, 41 Stat. 371, and the congressional debate on

that amendment reveals quite clearly the under-

standing of the participating members that the

term tn loco parentis was, for lawyers and judges,

akin to a term of art.® Significantly, the illustra-

tive cases of in loco parentis claims denied under

“Thus, during the debate in the House of Representatives,

Mr. Dewalt, one of the floor managers of the proposed amend-

ment, stated that “the term ‘loco parentis’ is one which has

a legal significance,” and that to learn whet the term means

one could not examine the dictionary but “would have to

examine the legal decisions.” 58 Cong. Rec. 5090. Mr. Sweet,

the sponsor of the proposed amendment, in answer to an

inquiry as to the legal definition of the term, quoted the

definition given in Bouvier’s Law Dictionary. 58 Cong. Rec.

5104. Pursuing this line of inquiry, Mr. Rogers expressed the

view that “it is fundamental that the strict legal definition of

this phrase should be applied,” and that “Congress should

emphasize that it regards the phrase as meaning what the law

writers and what the judges say it means not what popular

usage may indicate.” 58 Cong. Rec. 5104. Reading the

decision of the Supreme Court of Maryland in the case of

Vonder Horst v. Vonder Horst, 41 Atl. 124, 126, Mr. Rogers

observed that the definition contained in that decision was

more precise than the definition read by Mr. Sweet from

Bouvier. He further stated that he could not “see how the

language can be safeguarded,” but pointed out that “we ought

in the course of this debate to indicate that in the use of the

phrase ‘in loco parentis’ we are using it in the strict legal

sense and not in a loose, vague, and elusive sense, in which

~—_ . ee

10

the War Risk Insurance Act which Congress

sought to correct by this amendment were situa-

tions wherein the alleged in loco parentis relation-

ships had their inception while the serviceman was

aminor. See 58 Cong. Rec. 5083, 5088, 5089, 5090,

9104, 5106, 5107-5108; Hearings before the Sub-

committee of the Committee on Interstate and

Foreign Commerce, House of Representatives, 66th

Cong., Ist sess., June 18th and 19th, 1919, pp. 20,

21, 60, 61, 82, 84, 85, 86, 90, 91, 93 97, 98, 99.

Shortly after the enactment of this amendment,

the Bureau of War Risk Insurance construed the

term in loco parentis as inapplicable to a relation-

ship which has its inception after a serviceman,

who is neither physically or mentally impaired, has

passed his majority. See 8 Op. G. ©. 1553, C. 86,

437, dated March 13, 1920; 8 Op. G. C. 2084, C.

91,094 dated April 2, 1920; 9 Op. G. C. 2453, C. 69,

904, dated April 16, 1920; 9 Op. G. C. 2851, C. 109,

732, dated April 30, 1920. And see 1 Decisions of

the Administrator of Veterans’ Affairs, p. 851,

Decision No. 536, October 22, 1943. This admin-

istrative construction was rejected in Meisner v.

United States, 295 Fed. 866 (W.D. Mo.), but

was subsequently upheld in Howard v. United

States, 2 F. 2d 170 (E.D. Ky.) and in Tudor

v. United States, 36 F. 2d 386 (W.D. Wash.),

perhaps it would be used in ordinary conversation.” 58 Cong.

Rec. 5104. Following this discussion, a proposed amendment

to insert the phrase “or as foster parent” after the word

“parentis” was rejected. 58 Cong. Rec. 5104-5105.

11

appeal dismissed by stipulation, 38 F.2d 1020 (C.A.

9). Even if it stood alone, this contemporaneous

construction of the War Risk Insurance Act would

not ‘‘be overturned unless clearly wrong, or unless

a different construction is plainly required.”’

United States v. Citizens Loan & Trust Co., 316

U. S. 209, 214; ef. United States v. American

Trucking Assns., Inc., 310 U. 8. 034, 549; United

States v. Madigan, 300 U. S. 500, 505; Norwegian

Nitrogen Products Co. v. United States, 288 U. S.

294, 315." A fortiori, such administrative construc-

tion should be accepted where Congress repeatedly

employed the identical term in subsequent enact-

ments, particularly where the weight of then pre-

vailing judicial decision was in accord with that

construction. Cf. Great Northern Ry. Co. v.

United States, 315 U. 8S. 262, 275-276; National

Lead Co. v. United States, 252 U.S. 140, 146; Apex

Hosiery Co. v. Leader, 310 U. S. 469, 488-489,

The conclusion that Congress intended to adopt

this consistent construction is substantiated by the

history of the 1946 amendment to the National

Service Life Insurance Act, which broadened the

definition of ‘‘parent”’ in Section 601(f) to include

7 Section 608 of the National Service Life Insurance Act

(38 U.S.C. 808) charges the Administrator of Veterans’ Affairs

with the administration, execution, and enforcement of the

Act and empowers him to “make such rules and regulations

not inconsistent with the provisions of this Act, as are neces-

sary or appropriate to carry out its purposes.” See also Sec.

13 of the War Risk Insurance Act, supra; Sec. 306 of the

World War Adjusted Compensation Act, supra; Sec. 5 of the

World War Veterans Act, supra.

en ee ee ee

12

‘‘a stepparent, if designated as beneficiary by the

insured.”” (60 Stat. 781).* In interpreting the

National Service Life Insurance Act, as passed in

1940, the Veterans Administration had held that a

stepparent is not a permissible beneficiary under

Section 602(g) unless in loco parentis to the in-

sured for at least one year prior to the insured’s

entry into active service, and that a stepparent

could not stand in loco parentis to the insured

where the insured had attained his majority prior

to the stepparent’s marriage. See 1 Decisions of

the Administrator of Veterans’ Affairs, p. 851, De-

cision No. 536, October 22, 1943. Apparently

aware of this and similar decisions by the Veterans

Administration, Congress thereupon enlarged the

term ‘‘parent”’ to include ‘‘stepparent”? but did

not reject the Veterans Administration’s view that

an in loco parentis relationship must he 2 its in-

ception prior to the majority of the insured. See

8 In view of the peculiar legislative history of the National

Service Life Insurance Act of 1940 there are no contemporary

congressional statements explaining the purpose and scope of

Sections 601(f) and 602(g). The National Service Life In-

surance Act of 1940 formed a part of the Second Revenue Act

of 1940 and was added to it in the Conference Committee.

86 Cong. Rec. 12962-12963. There was little debate in either

house on the insurance portions of the bill when the Con-

ference Report was brought up. 86 Cong. Rec. 12916-12925,

12945-12970. However, in the Senate, Senator Harrison, who

was in charge of the Bill, pointed out that National Service

Life Insurance was “similar to war risk insurance with certain

modifications based on experience gained over the past 20

years.” 86 Cong. Rec. 12920. And it seems that Congress

was aware that the term in loco parentis also appeared in

earlier acts. Cf. S. Rep. No. 403, 78th Cong., 1st Sess., p. 9.

13

H. Rep. No. 2002, 79th Cong., 2d Sess., p. 2; 8. Rep.

No. 1705, 79th Cong., 2d Sess., p. 2.°

Moreover, the National Service Life Insurance

Act, on its face, supports the administrative con-

struction. Far from being loosely drawn with

respect to the designable beneficiaries, the Act

contains a detailed and specific enumeration of each

permissible beneficiary and enlarges the scope of

possible beneficiaries wherever the common law

meaning of the word used would be unduly restric-

tive. Thus, Section 602 (g), as originally enacted,

provided that the insurance shall be payable only

to a widow, widower, child, parent, brother or

sister of the insured. It specifically provided,

however, that the term “‘child”’ includes ‘‘a step-

child or an illegitimate child if designated as a

beneficiary by the insured,’’ and that the term

““parent”’ includes a “‘person in loco parentis if

designated as beneficiary by the insured.”’ Section

601(e) further defined the term “child” to include

“‘an adopted child.’’ As amended in 1942, 56 Stat.

697, 659, the term “‘parent”’ was broadened to ‘‘in-

clude a father, mother, father through adoption,

* In addition to the Acts previously cited supra, pp. 5, 7, see

also Sec. 4 of the Pay Readjustment Act of 1942, 56 Stat. 359,

361, as amended by the Act of November 24, 1945, 59 Stat.

587, 37 U.S.C. (1946 ed.) 104, and Section 102(g) of the Career

Compensation Act of 1949, 63 Stat. 804, 805, 37 U.S.C. (Supp.

IV) 232, which superseded that Act and specifically provided

that the in loco parentis relationship must have existed for “a

continuous period of not less than five years during the

wagge of such member.” (Emphasis added.) Cf. 26 Comp.

en. 778.

14

mother through adoption.’’ At the same time, how-

ever, the class of beneficiaries in loco parentis was

restricted to those ‘‘persons who have stood in loco

parentis to a member of the military or naval

forces prior to entry into active service for a

period of not less than one year.’’ Finally, in

1946, the term ‘‘parent’’ was extended to include

‘ta stepparent, if designated as beneficiary by the

insured.’’ In view of such detailed enumeration,

it is likely that Congress intended the term in loco

parentis to be strictly construed. And numerous

lower federal courts have so ruled. See Strauss

v. United States, supra; Bland v. United States,

supra; Lyerly v. United States, 162 F. 2d 79, 85,

86 (C.A. 10); Reynolds v. United States, 96 F.

Supp. 257, 261 (D. Kan.); Powledge v. United

States, 88 F. Supp. 561 (N. D. Ga.) ; Bourbeau v.

United States, 76 F. Supp. 778, 779 (D. Me.);

Tudor v. United States, supra; Howard v. United

States, supra.

We submit, therefore, that the court below erred

in construing the term in loco parentis in contra-

vention of a long established administrative prac-

tice which accords with the language and history

of the statute. To depart from that administra-

tive construction, and to adopt a loose, undefined

construction based on the ‘‘natural and ordinary

meaning”’ of these words, as the court below did,

is to leave the courts bereft of any ‘‘chart or com-

pass to guide them except the sympathies or views

of each individual judge on the facts of each case.

If an insured may, by denominaiing persous as in

loco parentis to himself, thereby make them so,

then the repeatedly manifested intent of Congress

through the years to confine beneficiaries to those

related by blood, marriage or adoption (formal or

informal) would be destroyed.” Powledge v.

United States, supra, at 564.

BOL. LiL

7. aa da ae

Soh rea

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that this petition for a writ of certiorari

should be granted.

Puitip B. Pertman,

Solicitor General.

Aveust, 1951.

¥* UO. S. GOVERNMENT PRINTING OFFICE: 1951 961529 es