Petition for Writ of Certiorari — United States v. Wilkinson (No. 312)

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Te Usrrep STA tes, Petitioner

a0 ;

MIADELINE W HKINSON

PETITION FOR A WRIT. OF CERTIORARI TO THE |

'. “NITED STATES COURT: OF APPEALS -°

' FOR THE SECOND CIRCUIT

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FP, EE RANKIN,

Sol icitor Gdneral,

Cihocr ‘OCHRAN Down: 7

Pas Je. , ; A esist @ rie Attorney Gener,

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SAMUEL -D: SLADE, :

‘Mortrex How. ANDER, /:

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: 7 - 5 Page

Opitiions below {35,40 aN aaa ees wee ddlbeeeeeperscens q

Jurisdiction. are rs a ass possesses eee 3

Quiestion presented ae iD bisa d ate: ok aes beet eees I ne oe + oe

Statutes involved ........ TELE EE Pept ore Oe ee he

Statement et EOS tate the eee rere at Bear ee weir) a

Reasons for granting the writ eee ore Ung ee Tee og hs mae

1. The eonfliet ir deci SIONS «+... settee eee ences 2 ieee

§ The merits Le eae ee Se eee

3. Se ee Sipe tee eae <r ee raek ea 15

se sete cc au bes ave cet. 6 apeas ‘ 2e

“Appendix. A .. ee ea pe dee eee wen ees Tae eR HS ban s's 6 es - At

“Appendix SO ahaa eae eee ode ie anon ee 23,

eva : _ CITATIONS |

CASES : |

| ater v. United States, 226 F. 2d 975, certiorari denied, 350 |

Se "GREE SS IE Seas gary Ld, 6

Allen y. United States, 148 F. Supp. 817 “Ea EP on eS

Bishop V. United States, No. 9076, W.D. Mo, 5 po 5

Boretle v.. United States, No. 4962,:;N.D. N. ry. SiMe be ae! 6 9

Brewer ¥. United States, 117'F. Supp. 842 ......: Bee ds tee

Cyrus v. United States, 226 'F. 20.416 .....: Stage Mati &S

Dalghite v. United States, 346 U.S. 15 ....4..0 0.000000 6,7

Declet-v. Veterans Administration, 129-F. Supp. 566 ...... ah

‘Feres v. United. States, 340 U.S. 135 ..... ODE ee |

Ford - Untted States, 230 F. 24.538 .....0.:..... Ae

Jones v. United States, No. 18069, E.D. Pa. ...0..6......00«5

Lichter v.. United: States, 384 U.S, 742 ............. er ee te

“Lynch Vv. United States, 22 U.S. 571 ........ 0605.5... 13

MacLean v. United States, RECUR INA s esse kee gss =O :

eee ‘Index Continued .

| y

t

Tre eee

. MeCoay v. United States, No. S48, E.D. Okla. pies dt Cast a NE fut 5.”

Miler v. United States, , 124 F. Supp. 203 Pee TEES

| - Morgan v. United States, 115 FF. 20-426 2... rrr y tere oo

7 eet a mE States BB lh, Seer arrears Se acne BOO

r ugh v, United States, No. saci ED. Tex. Oe rat ig Oa 2 bee fons ae

. Stark v. Wiekard, B21 ULS. 288.2... eee eee Sani

Stout ¥. United State s,4No, a C-36, S.D. Ind ida tiacee Se

‘Turner v. United States, 237 F.2d 700 .:......5...... Wo Bs

Tutun v. United States, 270 USS. 068 ee te Se ues 13

United Statés v. Babeock, 250-L, a er eee «oe

United States V. Houston, 216 D. OOO 4 i ccseadeus werrees. T.

By i nited States v. Jackson, BOE WR GOD ins sv hak ees fenioxee. i

United States v. Shaw, 309 U: S. ME occ ek as J. rere 2

United States v. Sherwood, 312 U.S. 584 ..........21.0:6. 6,7

Yurgensen v. Higley, Adminisirator of Vete rans > Affairs and

United States, No. 420-54, ee nee shee aeechen)

STATUTES :

“Act.of March 20, 1933, Section 5, 48 Stat. 9,38 U.S.C. 705... 8

Aet.of October 17, 1940, Section 11, 54 Stat. 1147, 38 U.S.C. |.

Ma? «i... e eee gees Bee PUAN Pa Mer ae eur ene Pugs len > 2, 7-8

National Life Insurance Aet of 1940, Séetion 617, aS Ori-

ginally enacted, 54 Stat. 1014 cee teres Clot tyek Sate pete eae ee

National Service Life Insurance Act of 1940, o4 Stat. 1008, :

- as amended : |

Section 602(f) (38 PAC 802(f). ae oe ee eae Cae

Section 617 (RVING Osi 16 18-

ae | Second Revenue Act of 1940, 54 Stat. 974, Title Vi, Part i:. °14

Se ryie emen sand V eterans’ Survivors Benefits Act, P.L. 881, |

s4th Cong., 2d Sess.; 70 Stat. 886, 38 U.S.C, _,(Supp. IV)

W1G6(e) ...... POCO Se ORO ASOT er er re lee Ore Pe oe

‘@ > 8 Index Continued ° ill

a : = ne =e

Servieen nen’s Indemnity Act ‘of 19: ‘1. 65 Stat. 33, 38 U.S.C.

a) f a

3: 51-8 ese Sob ah bee Oe eee ew eee 8. ee Oe dee balls Pe ° 4 ‘gts 2 ths De 17 :

Pr nae as _--Section ; eepper ane a aoe PE PET eee ere ee 17

Section 2 oo....... eee ieee ta he sae ec vias B10, 07

eed. et ere eee O Te or er ene prites ere eek 19

Section 4 ee er ae ve tee ee : re aoe cote Mer are te $6 8 «6 be 20

See tion 5, ET a eae eas Peek ve ee ere a sn ey

} Section ee PO On eee ee "s

Sa y ENUNERI R err ree, UR Urry ran haere tr nen 10, 21

OCU OB cock es Sa are Nee ae eens sae 21

Section ee, fae ata Wr ere A AEE pe aa* Bo

W orld War x eterans’ Act, 1924, 43 Stat. 607, as onde E

Section 19 (38 Us C445) Sah eee Pee aie 8,9, 12, 18, 15

er, Section 307 (Ge Rae Re OP antn oe rea gh As ig 10

MISCELLANEOUS

Administrator’s: Decision, Veterans Administration, No. 9: D2,

Webteviate 7, 2900-0. 2 35 4.520 ess gh ADS NT Re 12 \

Administrator’s Decision, Veterans Mauston: No.. 953, :

- March 14, Fee Oi Ge Be i os ca eee eee as ee ae

G7 Cong. Ree, 618, 620, 621, 628, 629, 631 ..... fer ey ee 10

97 Cong. Ree. 1515-1516 ...: Se re as he Se sigs or ee

OT Come: Mae TORT cnc ois hin ss eee hia estas 10) -

Hearings before Senaté Finance Committee on ‘‘Serviee-

men’s Gratuitous Insurance”; S. 84, 8. 304, S. 506,-S. 654,

-and H.R. i, 82d Cong., Ist Sess., January 25, 1951:

Soe Shs ee oe ee tity ae ee ed et a

Sa GER Ei eh in Bem ay BN nad tae ie BRE ote Oe ee ..J0-14

PO Cee cea ect See eee ne 1]

DP. Bi-Be iors Sacei ess PPE Ie ee ee rey ae erg oes |

EH. 3.4, 82d Cong. ; ist PS css bee Re cas aoe APA ca

I. Rep.-No. 6, 82d Cong., Ist, Seéss., D. aes Sere Sto vie Oe

S. 54, 82d C Ong., Ist Bes ee *. See eg oh ene Pree e

. ‘\

‘ :

— QOcroper TerM, 1957

——

No. ©

‘THe Unirep Staves, Petitioner -*

v.

MALELINE WILKINSON

a,

- PETITION FOR A WRIT OF (CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS :

FOR THE SECOND CiaeUrt :

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to review

the judgment: ‘of the Court of Appeals’ for the Second

Cirenit entered in the above case on April 1, 1957. .

OPINIONS BELOW

| The opinion of the United States District: Court for

the Southern: District of New York (R. 1) is not

_ reported. ‘The opinion of the Court of Appeals (App.

_B, infra, pp. 23-26) is re ‘ported at 242 F. 2d 735.

The a of the Court of Appeals was entered *

on April 1, 1957 CR. 1G). A timely petition for re.

liearing was de AE on May 1, 1957°(R. 21). - The |

riparia ot’ this Court is involked under 28 U.S.C

125411). | | |

QUESTION PRESENTED.

Whether the federal district courts have jurisdiction

to entertain suits to compel the Unitéd States to pay

the death gratuity. provided by the. Servicemen’s—

Indemnity Act of 1951. : 2 |

| STATUTES INVOLVED .

P. L..28, 824 C ong., Ist Sess (69.8 Stat. 33). Part I of

which constituted the Servicemen’ S Indeninity- ‘Act of

1951 (65 Stat. 53, 38 U.S. €. 851:858)! is set i in

Appendix A, infra; pp. 17-22: 3

Section 11 of the Act of October 17. 1940 “(54 Stat.

1197, 38 U.S C. 1la-2), expressly denying jurisdiction

to-the. courts to review Veterans Administration deter-

-minations, is set ‘forth in the text “of - the argument,

mn fra, p. 8.

STATEMENT

This is an ae ction against’ the United States to recover

the $10,000 death gratuity provided by the Service-

men’s ; Indemnity Act of 1951 for survivers of certain

Se rvicengen who die while on Ae tive duty.

|

1 The Act Wes repealed, as of January 1,°1957, only with re spect

to all servicemen’s deaths occurring thereafter. See Servi ieemen’s

and Veterans’ Survivors Benefits Act, P. L. 881, 84th Cone., 2d

Sess., 70 Stat. 886, 38 U.S.C. (Supp. 1V) 1116(e). For -this reason.

the question presente d br the instant ea se, as we show, below, is still

of considerable importance. See p. 15.

a

—

the Shi avi purpose ot the -tHst a2 a

ats preamble, ‘Is to “authorize the paynient by the.

Administrator of Veterans’ Affairs of (a gratuitous ”

indemnity té survivors of ‘members of the Armed —

Forces who die in active service, * * *.°' Infra, p.-AT.

‘Vhe'Act accordingly provided: that “on and after Jime

27, 1950, any person in the active service of the Army,

shall be automatically in--

sured by the United States, withont cost to such person,

against death in streh service in the principal ¢ amount

Navy, Air Ferce * * *

of $10,000 * * *.” Sec tion 2, infra, pp 17-18.

Tie Act contains no express authority. for suit

against the United States , and does not “provide for .

any judici al. review (of Veter ans -Adn. Wnistration |

- decisions under the Act. in Oy Seas: |

Respondent is.the w hoe of F igeniin J. Ww ilkinson,

wien she married in Angiist, 1952, one year after his

——

juduction into. the Army | (CR. 2-3). . Wilkinson was

killed i in Korea on July 14, 1953 (R. 3). Shortly after

liis death, she filed with tlie Veterans Administration.

a claim for the £10,000 death gratuity under the 1951

Act. The claim was disallowed by the Veterans Ad-

ministration and, upon ,appeal, by the Board of.

Veterans Apveals.* This. suit was then filed in the

2 See preceding footnote.

3 At the time of his induction into service, when he was un-

married, the serviceman had apparently nametl his mother as

beneficiary of the death eratuity, Thé respondent widow s. claim

was rejected by the Veterans Administration, according to her

brief below, ‘largely on the basis that no formal Veterans Aqd-

a,

ministration form changing beneficiary to the willow had been |

located. It is to be noted that there is no question so far as the

government is coneerned that the $10,000 is payable, the onhy issue -

being who is the proper beneficiary.’’ Pliaintiff-Appellant’s Brief,

Dp. 2.

td

bie

United” States District’ Court’ for the Southern - |

District 6f New York in order to upget the ‘adminis-

trative disallowanee and* to recover the gratujty wn

the oat that respondent was “the sole benefici: Wy’

(RS The United States moved to dismiss on he.

posses that the court lac ked jurisdiction because. ihe

United States’ had not consented to suit on such a

claim. The court ‘sustained the motion, and eiaaieee de

' the complaint. The Court of Appeals reversed, holding

that the courts do have jurisdiction to entertain such

suits. ; os . : ea ly . : : ¢ ' : | : / . ; ,

: a

9° : i

Po af

REASONS FOR GRANTING THE WRIT

’ The holding below, whiclf we. believe to be ine¢or rect

and a departure from the settled pPinciple of federal

Immunity: from suit in: the absene e of congressional

consent, is in square conflict with. deci ‘isions’ of. four

othercireuit courts of appeals. Resolution of the con-

Het: hy this Court is essential to’avoid the unjust result

be |

; : ] .

that: the rights of ela imants wnder the 1951 Act. will »

vary depending on the cirewt in which suit issbrought.

1.-The C On fliet ii Decisions. inl holding: that there j is

jurisdic tio n in. the district courts to review admin nis-

“trative de ‘nials of death. gratuities under the Service:

men’s Indemnity Act of. 1951, the eourt below, is in

direct conflict with 4 decisions of the First, Fifth, Sixth

and Kighth Cireuits. “Acker rv.U nited ‘States, 226 F2d-

O75 (C. A. 5), certiorari denied; 390 U.cS S. 1008: Ford =

v. l nited ' States, 230 F. 2d 938 (C. ALD); Cyrus ve

at i pited States, 226 BP 2d. -416 (C, A.-1): Turner Vv.

lnited States, 2: 37 iF, 2d

.

——'s

TOO €C. AL 8): United States

ef

v. Houston, 216 F..2d 440.(C. A, 6) Simiarly, the

decision.. below conflicts with the decision of. every

district court whic hi has conside red. the question, save

F

one.”

A 7

i s . . e ;

4 Thi iis. in Cyrus, oe example, .; hiet Judge e ‘Magr der, re fe rr ing

directly to the Servicemen ’s Indemnity. Act of 1951, stat ted (296

F. 2d 416, 418) : :

ee Nowhere in the Act. is the gratuitous indemnity thus

provided for deseribed as a ‘‘contract of insvrance,’’ nor did

the Act conta any provision, such as was found in the

Nation al Service Lifé Insurance Aft of 1940 and in the World

War . Veterans’ Act of. 1924, authorizing suits against the

U nited~ States on claiinus for the gratuitous indemnity.

Such being the state of the statute law, we thank the dis-

trict court’ was clearly right in entering judgement dismissing

the present complaint for lac ‘kof jurisdiction, an, tess

And in Houston, the € ourt of ee Ne the S Sixth Cire uit de-

lared (216 F. 2d 440): |

It is evident-from a-careful exam‘nation of the relevant statutes

that - unlike the National Service ‘Life Insurance Act, 38

U.S.C.A. § 817, a: district, court is without jurisdjefon to

review. an award made by the. Administrator’ of Veterans’

ab Affairs under the Serv icemen’ s Indemnity Act. of 2951. * * *.

srewer v. United States, 117 F. Supp. 842 (E. D. an).

Declet v. Veterans Administration, 129 F.Supp. 566 (D. Puerto

mp -. Me Coys ry, United States ae 3948, E. D. Okla. \; Pu qu

United States (No. g 68%, E. Tex.): Yurgensen v. Higley,

‘daandes trator of Vete rans (ena and United States (No. “420-54,

PD. ON. JY; Bishop v. United States (No. 9076,. W.. D. Mo.) ;

Jones ¥. United States (No: -18069, E. D.: Pa); Stout v.

United States (Np. 55-€- 36, 8. gh Ind.); Borette v: United.

States (No. 4962; N. D. N. Y.); MacLean v. United States -

(No. 4760, N. D. N. Y.); Allen v. United States, 148, ¥.

Supp. 817 (S. D. UL). The only district -court . decision

which eoncluided that there was jurisdiction, and which was

explicitly. fiaglowed by the eourt below in the present case, iS

Miller v. United States, 124 F. Supp. ee (W. D. Mo.), decided

by Mr. Justice Whittaker when he was e istric ‘+t judge. -The Muller .

G

2° The Merits. It was error, we believe, for the court

below to4reject the cited decisions of the four courts

of appeals’ and the numerous district court decisions.

‘The basic mistake of the deéision. is its refusal to

recognize that courts have no jurisdiction over an.

action against the-United States unléss Congress has

explicitly conferred jurisdiction onthe courts over

_that particular type of action. We show below

that, there is nothing in the 1951 Act. which

confers. such jurisdiction. Moreover, aye arlier statute,

-dealinig expressly with. Veterans Administration

decisions, codifies the Government’s traditiorial im-

munity from suits of the typé here imv olved.

It is, of course,-a fundamental. principle that the .

/U nited States cannot ‘be sued withont, its consent. It is

equally well settled that a waiver of. sovereign im-

‘munity takes effect only w here Congress has ec pressly

and unequivocally consented to’ such suit. | Dalehite \

United States : ees U.S. 15, 30, 31; Feres v. United

moe g, BAD U.S 39, 139; United States V. Sherwood,

2 A S. 584, poy 590: ‘t nited States. v. Shaw, 309 U.S. -

195, 500- 501; Munro v. U nited. States, 303 U.S. 36, 41.

“TS] juch’ consent’? by Congress, ‘as underscored by.

Chief Fudge Hutcheson-in ruling that thie cotirts have.

no jurisdiction to.entertain-suits under the 1951 Serv-

-icemen’s Indemnity A¢t, ‘must be expressed - ‘and not

implied. Acker v. United States, supra, at p. 578.

It cannot be challenged that there is no express or |

explicit congressional provisic on consenting to suit

* aiden on

~¢

ease was not OE to the Court of Appeals- for the Bighth

Cireuit. The. Eighth Circuit, in an opinion which is not cited in.

the decision below, later ruled’ that the courts lack jurisdiction ©

ta.review death gratuity denials undey the 1951 Act. Turner Vv

United Stages, supra.

all

s

satan the United 8 states aula the 1951 Act. On

its dace, the Act contains uo, express waiver ~ of

immunity and rebuts any inference. that suit will le

against the Umted States to. recover . the phe

_indemnity theretin provided. As already noted, it i

not lightly to be assumed oY inferred: that the Govern-

ment has given. eonsent: to be sued. What rhust) be

shown “to give jurisdiction” is explicit “congressional”

eonsent’ to ‘clear -relinquishment of. sovereign

immunity.’? Dalehite v. United States, supra, at-p. 31;

United States v. Sherwood, supra, at p. 590. A reading

é

-of each of the ine sections comprising the 1851 Act

(infra, pp. 17-22). shows that nothing in. the “Act

suggests a’ congressional purpose to allow suits to

review the. administrative determination of gratuity ‘

claims. Indeed, the court below in the present

ease seems to aexnowledge that-Congress has failed —

to. make ‘an express provision authorizing siich suits,

and finds consent only through implication. Such a

result is'at-war with the settled doctrine that federal

consent to suit must be expressed. and not imphed.

The Second Circuit seems to suggest that Section :

of the Act of Oc ‘tober 17; 1940, 54 Stats. 1197, 33 U.S

11a-2, together with its express ex¢ eptions, oie

a ‘jurisdictional basis for de: ath gratuity actions. 3ut

examination of the terms 6f Section 1t-discloses that

that statute actually reinforces the need for holding’

fhat there is nd sueh jurisdiction. . Section i Oa

denying —— review of Veterans Administration

claims, states:

'

<cieneineienivncemtg

6 Thus, the court seeks to overcome the effect of the failitre on

the part of Congress to make express provision for suit by describ-

ing the omission as a ‘‘failure expressly to state the obvioust”

(App. B, infra, p. 25).

= mandamiis or otherwise any suc ‘h decision.’

: | 8

‘Notwithstanding | any .other provision of law,

* except as provided i in section 19 of the World War

Veterans’ Act, 1924, as amended, ‘and in section

817 [617] of the National Service Life Insurance

Act of 1y40," the decisions of the Administrator

of Veter ans” Affairs Saon. any question : -of Jaw or

fact concerning a claim for benefits or »aymenits

under this or any other Act administered by the

_ Veterans’ Administration shall be final and: eon-

_ elusive and ‘no other. official or any court of the

United States shall have pow er, or jurisdiction to

review: any such dec ‘isions, 1°] :

Thus, judicial review - of Vete ‘ans Administration

determinations may be had only where provided by

(1) Section 19 of the 1924 Act (38 U.S.C. 445) ; and

(2) Section 617 of the’ N.S. L, I. Act of 1940 (384U.8.C.

| pe ee

“7 Although the text of Section 11 refers to Section 817, of the

N.S.L.I. Act of 1940, Section 11 must be deemed to relate’to See-

tion 617 of the N.S.I.T. Act of 1940 since that Act ‘thas no Seetion

817. Presumably, the reference is to the United States Code cita-.

tion for Section 617, i.e., 88 U.S.C, 817.

8 To the same effect, see ‘Section 5 of the Act-of Mare h 20, 1933,

48 Stat. 9, 38 U.S.C. 705: ‘Ail decisions rendered. by the Ad

ministrator. of Veterans’ Affairs under the provisions of this titl,

-or the regulations issued pursuant thereto, shall be final and con-

elusive on all questions of. law and fact, and no other official or

“court of the United States .shall have Peart to review by

_ .* It is important to note that these are the only two.classes of

Véterans Administration claims reviewable in the courts, and that

at no time—either upon enactment of ‘the 1951 .Aét or subsequent

thereto—has Section 11 of the 1940 Act been amended so as to give

the courts jurisdiction over any other or additional ty De > of V eterans~

‘Administration elaim. ;

Forces who die in. active service,

9

Neither of these two provisions-apphes here.. Section

19 provides for judicial review of determinations con-

“cerning | “vearly renewable termn Insurance?’ and

‘“‘United States Governmerit life (converted) in-

surance’? under ‘““a eontraet of. insurance between the:

* Veterans’ Administration and any person or persons

claiming thereynder * * * ’* Section 19, 43 Stat..612,

as amended; 38 U.S.C. 445. This judic ‘ial review: pro-

vision is inapphe able: here. because the’ instant claim

‘is not one for term instirance, but. rather ‘Is

for the death gn ratuity available under.the 1961 Act. -

This consideration, standing by itself, 1s, we believe,

sufficient to — that the reliance ofthe court below

- on’ Section 19 (38 U.S.C. 445) is misplaced.

Moreover, Section 19-is inapptic ‘able for the added

reason, that the instant claim, as mae been. noted w ith

respect, ta similar veterans’ claims, ‘arises _ not out of |

contract, but from a_ statute.”’ Y organ V. ‘United

States, 115 F. 2d°426, 4277 (CA. ey. That the 1951 Act

did not contemplate a ‘Soontract of insurance.”’ but

rather a gratuitous indemnity, is clear from the

language of the Act. Its preamble emphasizes that it”

authorizes the ‘paytnent” e ey the Administrator of |

Veterans’ Affairs’’ not of the proceeds-of ,a contract

or policy of imsurance — but “of a gratuitous |

indemnity to. survivors of members of the Armed

3 Appendix a.’

infra, p. 17. And in sharp contrast to the World War.

Veterans’ Act, 1924 (authorizing the United- States

Government lifé insurance contracts) and the N.S .Loel.

. Act’ of 1940 (a uthorizing insurance contracts’ for

World War II]. servicemen), the terms of the 1951

Act. make no provision for applications for policies

of insurance, for premium payments, for the use of

10

Tables of’ Mortality; for the” issuance of policies of

insutanece, or for dividend payments and refunds. of

unearned premiums. Further, unlike the e: irlier “Acts,

no. provision is made for the creation ot a trust fund —

in the Treasury... P ayments under the 1951 Act are

made directly, “ont of any ‘money in the Preasury not

oD appropriated.”” (See, 7, 65. Stat? 35, infra,

. 2%.) Finally, while the earher Acts expressly use

oe significant terms “coutract ‘of insurance’ and

‘*nolicy of insurance”’ (see, €.9., 88 17.S.C. 518, 802(f)),

the 195] Act deliberately avoids, suc +h contrartual terms

and employs instead the term “automatic indemnity |

coverage’ ’ or “antomatic: lly insured” in juxtaposition.

with ‘contract of national service life. insurance or

(nited States Government life. insurance.’’ (Sees. 2,

5, 65 Stat. 34.35, emphasis added, infra, pp. 20-21.)" —

————

. 10 The legislative history of H.R. A, 894. Cong., Ist Sess., whigh

was enacted. into law as the 195] “Act, shows full congressional

aw areness of the gratuitous. avd. non-contractual nature. of the-in=----

- demnity made available therew nder.

The bill’s sponsors repeatedly referred to it as providing a

_ gratuitous indemnity, and pointed out that no polici ies of insurance

wotild be issued. See 97 Cong. Ree. 618, 620, 621, 628, 629, 631;

~H. Rep. No. 6, 82d Cong., 1st Segs.,. p. 10. When it was being con-

sidered on the floor of the Senate, Senator“Taft, contrasting it with

the contractual arrangement theretofore existing ‘under the Na-

tional Service Life Insurance program, noted that“‘ H.R. 1 * * *

represents a complete revolution in the entire ‘national life’ in.

- surance program’’ in providing the serv leemen with free insurance.

97 Cong. Ree. 1517. a8

In addition , in the hearings on the ‘pill, Cc ‘ongr essman De ris noted

that it: |

re presents. a completely new approach, and 1 ‘thfink it should

be understood from the sfart that this 3 is not a continuation of

- insurance. This is an indémnity program aS eontrasted to the

premium-paying type of insurance * * *. [Hearings before

?

«

oe

A.

«

Consistent rulings by the. Veter rans Administration

point out that vit is. a fact, however, that the Service-

ee wee ee ~ — ee RE eee en ee

Senate Finance Psamaattee at Servicemen’s q ratuitous

Insurance,’’ S. 84, S. 304, S. 506, as 654, and H.R. 1, RIC

Cong., Ist. Sess., January 25, 1991, P. 3. 7

Another witriesd « at the same hearing, stressing the now-contractnal

nature of the gr atuitous indemnity proposed. by the Act, pointed.

out that *‘ Tliose who have misgivings in reference to the gratuitous

: ‘indemnity proposals point out that it would not be contractual. and.

_ hence over a period.of years might lack stability.’’ P. 78, id.. Still

further manifestation of the gratuitous and non- contractual nature

‘of the indemnity and the need for according finality to administra-

tive determinations w ith respect to such gratuitous,indemnities is

apparent from the followme colloquy, reprinted at pages- 87-88 of

the Senate Hearings on ‘*Servicemen” $ Gratuitous Tnsurance”? ;

Mr. DORSEY. Is there not ‘another sdivantaga, Mr. Birsin-

ing? Under the present law [7.e., 1924 Acts (U.S. Government

Life Insuranee} and the 1940 Act (N.S.L.T.)] each poliey -

holder“has a.contract and not even-the Congress or anyone

else-can violate. that contract; it is guaranteed. However, if it.

‘were on a grattitous basis, the Congress could frém time to

_time revise what they would give either upward or downward

‘under ‘cortalir tirermistances, and the decision of the. Adminis-

or peste! be final. Is that correct? 2 |

Mr. BREINING. I think from a legal standpoint, to which .

L think re ‘oeaint’ was addressing himself, undoubtedly if it

were in. the form of a gratuity Congress could do anything it

— with it. Congress would then,maintain complete ¢on-’

1 at all times over the’situation, and from a legal standpoint.

oy think it would be absolutely sound.

As‘a matter of fact, in the so-called economy bill cf. 1933

tliat very thing was Cone, and although the repeal of war-risk

insurance was chaltlen iged in'the courts, and the Supreme Court

in the Lynch-Wilmer decision did set aside the legislation, there

was no challenge, no question that Chngress as. ‘far as the

eratuity is concerned can give it or withdraw it. 9

trat

* * e * : * * -

ALr. BREINING. If really think this is a matter of poliey.

It is whether or‘not the ‘C ‘ongress wants to have an insurance

program or whether they want to give a gratuity. |

Pf

eS Mle |

me n’s Indemnity Act jot 1951 | provides a gratuitous—

as distinguished from a contraetual—benefit and that

the “indemnity [under the 1951 Act] is.a gratuity, not

coutract, payment.’’?’ Administrator's Decision, Vet-

erans Administration, No. 952, February 7, 1955, p.1;

Administrator’s Decision, Veterans Administration,

No. 953, Mareh 14, 1955, p. 4, fmv 4.000 |

Accordingly, since there is no ‘‘contract of in-

. surance”’ ‘under the 1951 Act, the conditions p. ecedent

t6 suit under Sec tion 19 of the World War Veterans’

Act, 1924 (38 U.S.C. 445 >) were not, and could not he,

met-in this proceeding. No different conclusion is

eailed for by United States.v. Jackson, 302 US. 628,

and the related lower court cases relied upon below

(App. B, infra, p. 24). Jackson involved an insurance

arrangement entirely different from the gratuitous

indemnity available under the 1951 Act. In that case,

Congress had declared that where the serviceman

was killed within a short period of ‘time after his in-

duction into. the \service, and. therefore had. no

opportunity ‘to apply for the regular policy or con- ..

_ tract of Igsurance, he “shall be deemed. to havé applied’

‘for.and to ‘have been granted?’ a regula r contract of ©

insurance, Thus, the serviceman involved in the

Jackson case was deemed to have heen. issued as valid

a contract of insurance as any other serviceman who

in fact did avail himself of the opportunity to buy 3

reguiar life insurance contract or policy. But, no sue h

contracts or policies are available to anyorie under the

1951 Act. It is true that if Congress had provide “ct

that a’ servizeman coming: within the protection of

the 1951 Act ‘‘shall be deemed to. have applied Tor

and to have been granted?’.a regular contract of

National Service Life Tnsurance or United States

ls ..

Government life insurance, the Jackson ease would be

in point and the argument of the court be low that the

1951 Act gave rise to a contract of insurance would.

have. force"! Indeed, it was proposed early .in the

consideration of TLR. 1, 82d Cong., Ist Sess.—the bill

. whieh later hee came the 1951 Act—to issye ins urance

on sucha basis. Senator George, “the Chairman of the

Finance Commitee, considering FLR. yf proposed that

instead of issuing automatic and. gratul tous indemnity,

the serviceman “Shall be deemed to have applied for

and to have been granted national: service life insur-

ance in the amount of $10,000 * * *. .97 Cong. Ree.

/ 1515-1516; ‘Hearings hefore’ Senate Committee on

Finance -on “Servicemen’s Gratuitous Insuranee;”

~§. 84, 8. 304, 8. 506, S. 654, and H.R. 1, 82d Cong., Ist

. Sess.,. January 20, 1951, p. 1. But’ Senator: (ieor ge’s

substitute bill; S. 84, was abandoned in favor of FH. R. es

which contained no -such language and’ under which

the insurance, as we have noted, was issued as a

complete gratuity.

Section 19 of the 1924 Act (38 U.S.C. 445) there-

fore, does not furnish a basis for judicial review of

a denial of a 195] Act death gratuity. Nor, for

similar reasons, may sue h review be preglicated on the

wnly other statutory provision conferring jurisdiction.

in Veterans Administration cases, i.c.; Section 617 of

the 1940 N\S.L.I. Act (38 G.8:C. 817). Section 617

1 Even. if there was a. contract, there would still have to be

specific statutory authority conferring jurisdiction before a court

could entertain suit. It is settled that the United States may create -

_rights in individuals against itself wiffiout providing a remedy in

the courts. United States v. Babcock, 250 U.S. 328, 331; Tutun v.

| V nited States, 270 U.S. 568, 576; Lynch vy. United States, 292 US.

571, 582; Stark v. Wickard, 321 U.S. 988. 306: Lichter v. United

States, 334 U.S. 742. |

e

14

‘authorizes suit on N.S.L.I. policies by expressly in-

corporating the Jurisdictional provisions of Section 19.

Section 617, as amended in 1946 (60 Staf. 788),

“provides: raha: | |

In the event of dis sagreement as to any claim

arising -under’ this Act, suit may be brought in

the same manner and subject to the same condi- _

tions and limitations ds are applicable to the’

United States Government ‘life (converted) in-

surance. under the provisions of séctions 19 and

‘500 of the World ‘War Veter ans’ Act, 1924, as

amended.” oo |

This express incorporation of Section 19’s ‘“conditions:

and Hmitaticns’? means, of course, that the court’s

jur‘sdiction under Section 617 depends on the -

existence of a ‘“‘eortract of insurance.’? But, as has

-* been. shown, there can be no such contract under the

1951. Act. Moreover, Section-617 confers jurisdiction

only _ neg to “any claim arising? under this

Act,’ , the National | Service Life Insurance Act.

12 As originally enac ted (oe Stat. 1014), Section 617 real as

follows:

In the event of a, disagreement as to claim arising--under

this part, suit may be brought in the same manner and subject

_- to the same conditions and limitations as are applicable, to

United States Government (converted) life insurance under

the provisions. of sections 19 and 500 of the’ World ‘War Vet-

erans’ Act, 1924, as amended: Provided, That in any such

suit the decision of the Administrator as to waiver or non-

waiver of premiums | under section 602(n) shall be conclusive

and binding on the court. {Former emphasis supplied. ]

The 1946 Amendment eliminated the proviso relating to ‘waiver of

premiums and substituted the word ‘‘Act”’ for the word ‘‘part.

~The original cHoiee of the word ‘‘part’’ arises from: the fact that

the N.S.L,I; Act of 1940 was Part I of ‘i itle YE of the Secgnd

Revenue Aet of 1940, 54 Stat, 974,

|

Lo

co

It does not, therefore, confer jurisdiction. with respe a

fo the instant claim based on the 1951 Act. 7

“While Section 19 of the 1924 Act and Section 617

of the N.S.L.1. Act’ do contain express waivers of

sovereign immunity, and also establish wi detailed

procedure for htigation under those. AC ts, neithte r of

the two’ Acts authorizes jurisdiction over the instant

claim under the $951 Act. It follows » in view. of the

two earlier enaetments, that Congress knew. how ‘to |

grant consent to siiit had it intended to so provide in

the 1951 Act. The absence 6f*any suck’ provision

compels the conclusion. that ‘Congress. had no such

‘intention. : :

a Oe m portance. We recognize that the impertance’

of the question presented has been lessened to an,

~.extent. by the repeal, of the 1951 Act as of January 1,

~ 4957. -Servicemen’s and Veterans’ Survivors Benefits.

-Aet, PL. 881, 84th Cong., 2d Sexss., 70. “Stat, 886,38

U.S.C. (Supp. IV) 1116(e). Under the repei aling stat-

ute, the 1951 Act will “not apply in the case of any

_ Serviceman dying after January 1, 1957. Tow ever, the

~ question pr ‘esented will, still be of ; substantial te gal

tance. The Veterans Administration has advised 1

that over 5,200 death gratuity claims icie dildattn A-

tively denied under the 1951, Act, and that there are’

360. sich claims now pending adininistratively. We

submit that this hody of potential. Hitigation; and the.

like lihood of the rights of the clainiants varying from

cireuit to circuit if the decision below -is allowed to

stand, warrants review of the i decision by this Court.

15

‘CONCLUSION

‘For the reasons stated, it is. respectfully submitted

ranted:

JULY 1957

x

8

=

~

Pan

r

4

.

that this Petition for a writ -of certiorari should be

J. Ler RAN KIN,

Solicitor Ge neral.

GEORGE COCHRAN Dov,

Assistant Attorney General.

SAMUEL D. Suape, —

Mo :ron FOLLANDER,

Attorneys.

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| -APPENDIX A ays

eo 23, 8 824 Cong., Ist Sess. (65 Stat. 33). Part. I

of which ponmituted tha & servicemen's Tndemnity Awt

of. 195] (65 Stat. oo, 38 U.S.C. 831-85 8), provides in

pertinent part as follows: " |

© 4: are ; f~> —"

Public Law 28—8: od C ongress’

‘Chapter 39--Ist. Session

Zk ‘zR. — : :

oe =e AN ACT

To authorize the pi Lyme ut by the ‘Administrator of

— Veteraiis’ Affairs of a gratuitous indemnity

td survivors of members of the Armed -Forces-

who die in active service, and for other

purposes, | aie

Be it enacted by' the Senate and House. of

Represe ntatives of the United States of ‘America

“on Congres is assemble d,

ae

PART I—Sr VIC k MEN’S LINDE MNITY

Bre, 1. This part may ‘be cited as the *‘Service-

men’s : Indemnity Act of 1951.”

Sec. 2.. Except as hereinafter provided, on and

after June 27, 1950; any person in the active

service of the Army, Navy, Air Foree, Marine.

_ Corps, Coast, Guard, or the Reserve Components

‘thereof, ine lading the. National Guard when called

or ordered to active duty or activ® training duty

for fourteen days or Dana ‘adets ad mids ship-

meh at the United States Military, “Naval. and

Coast- Guard Ac es Ss; commissioned officers of

the P ublic Health Service. while entitled to full

- military benetits as provided i s section 212(a)

° -the Act of July ‘ 1944 (58 Stat. 689), a as ame ide cd

13 See Noctnote 1, page 2.

LS

(42 U:S.C, 213): and comenissiored officers of the

Coast and, Geodetic Survey while assigned to

duty during a per riod of war oF an-emergency as —

proc ‘aimed by -the. President or the Congress on

projects for the Army, Navy, or Air Force in areas

outside the continental; U nited. States or in Alaska

of in coastal areas of the United States determined

by the Department of Defense to be of immediate

military hazard, shall be automatically , insure d

by the Mnited States, without cost to‘such person,.

against death in such Service ‘in ‘the principal

amount of $10,000: Provided, hat any person

called to extended active ‘service for, a period

exceeding thirty days shall continue to be se

_ proteéted for’a period of one hundred and twenty

days after separation’ or release from such active

service: Provided further, "That persons .in the

Reserve Pe Aan including - the National

- Guard, while engaged in aerial flights in Govern- .

ment ened or leased aireraft: for-any period,

With or without pay, as an incident to. theif

nitlitary or. naval training, shall be deemed to be

in}. the active service for the purposes of this Act:

And provided further, Tliat for: the purposes. of

this part, any person, who, on or after. June 27,

1950, was or shall be provisionally accepted and

directed’ or ordered to report to a place for final.

acceptance or for entry upon. active duty in the

-military or naval service and. who died or shall

die as the result of disability igcurred while

‘en route to such place ‘and within ‘one hundred

“

and twenty days after the incurrence of such.

disability, or any regist ‘ant egeise = Selective

Service Act of 1948, as amended, who .cn or after

June 27, 1950, in response to-an oes to. report

for -induetion into the Armed Forces and who,

after reporting to a.local draft board, died or dies

as the result of disability incurred while.en route

from such: draft hoard to a designated induction

TOP, Se ee ee ny

. station sna Ww “thin ane hundred and tw enty davs

after the ineurrence of such disability shall be

--deemed to have died in ‘active service,

Src. 3 . Upon certification by the Secretary of

the service department concerned of the death of

any person deered to, have been automaticgily

insured under ¢this pirt, the Administrator of

‘Veterans’ Affatrs shall cause the indemnity to he

' paid a is provided .in section’ 4° only to. the,

surviving spouse, child or children (including: ;

stepchild, adopted child, or an illegitimate child ix

the, latter was designated as bene refiviaky by the

insured), parent (ine ‘uding: a stepparent parent

by adoption, or person who stood iN

pareitis to thé insured at any time prior to e

into the active service for a period of not less t

one year), brother, or sister of the insured, incfud-

ing those of the half:blood and those thro? ghi

adoption. .The insured. shall have the right

designate the beneficiary or beneficiaries of the

indemnity within the classes herein provided; to

designate the proportion of the principal’ amount

to be paid to each; and toe change the beneficiary

or bene ficigries, without the ‘consent thereof but

only ‘withth the classes herein provided. If the

designated beneficiary or beneficiaries do not

_ survive the insured, or if none has beert designated,

the Administrator shall make payment of: the

indemnity; to. the first eligible class of beneficiaries

according, to the order set forth ahove, and in

equal shares if the class is composed of thore than.

one person. Unless designated otherwise by the

insured, the term ‘‘parent’’ shall include only the

mother and father who last hore that relationship

to, the insured, - : ;

Any installme mts of -an indemnity uot paid to

beneficiary during stich heneficiary’s lifetinie.

a ill be paid to the named contingent befieficiary, .

- : 2 . . r * - Wy

if any; otherwise, to the :benefieiary or Doueficiar ies

within the permitted class next entitled io priority:

Provided, That no payment shall be made to the.

estate of any deceased person,

Sec. 4. The inderhnity shall be payable in equal -

monthly installments of one himdred and twenty

in number with interest at the ‘ate of 2h, per

centunr per annum. — | ee ee =e

Sec. 5. The automatic indeninity coverage

authorized by section 2 shall apply to any person |

in the active service of the rramed. Armed Forces

who, upon death in such active service, or within

one hundred and twenty days after separation or

release from such active service as preseribed an

section 2, is insured against such death under a

eontraet of national service life imsurance or

“United States Government life insurance, but

only with respect to a principal amount of in;

_ demirity equal to the diffe renee between the

“amount of inswivane e in foree at the time of death

and $10,000. Any person in active service, who

is insured under a permanent plan of national

service life, insurance or United :States Govern-

ment lifé iusurance, may elect to surrender such

—contraetfor its cash value. Jn any such case the

person, upon application in writing made within.

one hundred and twenty days after separation

from. active service, may be granted, without

medical examination, permanent plan insurance’

on the same plan not in excess of ‘the amount

surrendered for .eash, or may, reinstate such.

surrendered insurance ‘upon “pavment of the

required reserve and prenuum for the current

month. “Any. person in‘the active service having

United States a ois life imsurance or

national service’ life insurance on the five-year

level preminm term. plan, the term or which

“e xpires while such pe Tsou is in active service atte x

the date: of this enac ‘nent, shall, wpon application. -

made within one hundred. and twenty days after

separation from ‘service, payment of premiums

cand evidence of good ,health s satisfactory to the.

Administrator, be graiicd an equivalent amount

of instirance on the five-year level picgnivm term —

plan at* the premium rate: for his then attained.

age. Waiver of premiums ‘under the’ -National

Service Life Insurance Act of 1940, as amended,

shall not be denied in any ease of issue or re- _

instatement of insurance, on a.permanent plan |

under this section in wluch it is. shown to the

satisfaction .ef . the. Administrator that total

disability of the applicant commenced prior ta the.

date of his application. |

‘Sec, 6: The Administrator of V ag airs

is authorized to. promulgate © such rules and |

reenlations, not inconsistent with the provisions

of this part. as are necessary or appropriate to

carry out its purposes.

Sec. 7. There is hereby authorized to be

appropriated, out. of any money in the Treasury

not otherwise appropriated, suc A sums as may .be:

necessary to carry out the. provisions ‘of this part,

to be known as the servie emen’s Indemnity appro- ~

priation, for the payment of li abilities. under this

part.

Src. 8. Any person guilty of mutiny, treason,

spying, .or desertion, or who, because. of con-

scientious objections refuses to perform services

in the land or neval forces of the United States or

refuses to: wear the uniform of such foree, shall

forfeit all rights to an indemnity under-this Act:

Provided, That restoration te active duty atter

commission of any such offense shall restore all

rights’ to: an indemmty under. thie Act. No

indemnity shall be pavable for death inflicted: as

a ent

a tawful punishment for erime or for military or

naval, offense, except when inflicted by an enerniy

of the U nited States.

Src. 9. The provisions of Pubhe Law Numbered

‘Por, Seventy-fourth Congress, approved August 12

1935 (49. Stat. 607) j, as amended, titles II and LI

of: Publi¢é Law Numbered 844,. Seventy-fourth

: ‘Congress, s, approved June 29; 1936. (49 Stat. 2034),

as amended, ‘and. section 15 of Publie ‘Law

Numbered 2 2, Seventy-third Congress, March 20,

1933, insofar as'they are applicable, shall apply

to the provisions “of this part: Provided, That

assignments of all or any part of the beneficiary’s

interest. may 'be.made by a beneficiary to any

other person or persons within the permitted -

class of beneficiaries, as specified in section 3, if |

all ether persons having ‘contingent rights of

equal or greater priority to those of the assignee

join in the ‘assignment: Provided further, That:

such assignment shall not affect any ‘payments

made prior to its receipt by the ' Veterans’

Administration. cg é 2

° re 7 o

e . .

i

“9

at (3

APPENDIX B

UNITED STATES COURT GF APPEALS .

FOR TENS SECOND CIRCULF .-

t ; ie ee

.

No. 175 —- October Term, 195 36 ,

(Argued February 6,.1957 Decided Lov es 1957)

3

Docket No: , 24024

MADELINE ‘WILKINSON, P Taintiff Appellant,

<

UNITED STATES OF AMERICA, Dad Kaiten PeHee.

Before: Ciark, Chief Judge, Mnpiwa, ( ireutt ee

and Samira, District Judge.

Appeal from the United: States District ( ‘ourt for:

the Southern’ District of New York, John W. Clancy,

Judge. | |

Madeline Wilkinson, widow of a serviceman killed

in action in Korea, appeals from an order dismissing

for lack of jurisdiction her action to recover indemnity

‘insurance on the death of her husband, brought. after

the Administrator of Veterans’ Affairs had ruled that

the soldier’s. mother was the proper beneficiary.

Reversed and remanded.

BE ‘e AMIS EF. Kanrrowitrz, New York City,

for pledntt-anpellant. ;

Mir iam R; Gotpmay, Asst. U. S. -Atty.,

S. DDN. Y., New York City (Panl W.

Wilhams, U.S. Atty.. New York City,

on the brief); for défendant-appellee.

CLARK, Ch vet Judge:

The widow of a soldier killed in Korea appeals

fn

from a distriet court order dismissing her action for

er a % y ep"

the proceeds of her husband’s Government insurance

on. the sround that the courts lack jurisdiction to

review the Veterans’ Administration decision. that the ~

soldier’s. mother was the true benefici qary. Judicial

review is precluded, by 38 U.S. C. § 11a-2 unless the

automatic free insurance provided ‘the ee by the -

Seryvicemen’s Indemnity Act of 1951, 65 ‘Stat. 33, 38.

U. S.C. § 851, created, a ‘‘contract fy insurance’’ in

the me aning of 38. U. 8. C.8 445." The trial court held,

following a. line of precedents cited below, that stich.

indemnity ‘‘gratuitously: provided’? for servicemen

did not come within the terms of the review permitted

under the latter Act. y ;

The eases are- consistent. in holding that the free

automatic insurance provided World War I fighting

men ‘by.the War Risk Insurance Act, 40 Stat. 409,

; constituted a ‘‘eontract of insurance’? within 38

ULS. OC. $445, e.g., United States v. Jackson, 302 U.S.

628: paid v. United States, 1 Cir. 45 F. 2a 20;

— United States’ v.. Campbell, 4° Cir. 189 F. 2d 424:

United States v. Carlson; 9 Cir., 44 F. 245; Cunning-—

ce v. United States, 5 Cir. 67.F, 2d 714; Morgan \

United States, 5 Cir., 115 F. 2d 427; United States v. |

Kerr, a oe 61 F. 2d 8002 United States v.. Preece,

10 Cir. S35 BF, 2d 932, certiorari 3 Preece v. United

Stabe 300 U. S. 660, “We think the difference in

wording Beipate that statute and the present one is

not sufficient to warrant a different resuit.

‘Nor do we find it signifie ant that Congress ex opr essly

provided: for judicial review in the National Service

!

438 U.S.C. § 445 allows review of a ‘disagreement az to claim

** * under a contract of msurance hetween the Vetérans’ Admin-

istration and any person or — claiming thereunder * * *,?’

This statute, originally enacted as $19 of the World War Veterans’

Act of 1924, 43 Stat. § 612, is ‘expressly excepted from the provi- .

sions of 38 U.S.C. § 1la-—2-—enacted Oct. 17, 1940, 54 Stat. 1197— —

forbidding judicial review of decisions by the Administr ator of

‘Veterans’ Aff.irs on claims for benefits or payments.

mike

5

“Life Insurance ne of 1940, 38 U. Ss. C. 8. 817, and

-failed to. make similar provisions in the 1951 Act. At

the time the latter statute was' passed disputes similar

to the ,present one ander raricus - Servicemen’s

insurance statutes were all committed ‘to the courts by

either 38 U. S. C. § 445 or 38. U. S. C. $817; and

servicemen’s families had long litigated such claims.

In all probability the failure to mention’ Judicial

review here was because. the Congress assumed ‘that

claims under the new statute, were reviewable as

“contracts of insurafice?’ within 38° U. BS. C. § 445.

The 1951 Act amounted to little more than a mandate

for payment by the Government of the premiums on

what every serviceman Wag already strongly urged to,

Y, VIZ, #10,000 ve cheap Government tet rm in-

surance; and it was, not. considered a measure to

-transforni Governme ¥ insurance into a gratuity or to’

narrow the scope of review of the Veterans’ Adminis- 3

tration in this area.

We cannot interpi ‘ot the limitations on. judicial

review set in 38 U.S a ie $ lla-2 diffea ‘ently here from

cases where the sole basenel ‘lary sues the Government>

and where.Congress must have intended some court

review of arbitrary agency behavior. The cases which

deny ‘review rest on inferences as to congressional

intent drawn from the. ambiguous legislative history

of the 1951 Act anid from its failure expressly to state

the obvious.” . The Supreme. C ourt,“in construing

5 Bord v. United States, 5 Cir, 230 F. 2d 533; Acker v, United

States, 5 Cir., 226 F. 2d 575; Cyrus v. Unitéd States, 1 Cir., 226 F.

9.416; United States v. Houston, 6 Cir., 216 F. 2d 440; Bishop v.

United States, D.C. W.D. Mo., 135 F. Supp. 647; Brewer v. United

States, DC. E.D. Tenn., 117 F. Supp. 842;- Declet v.> Veterans

Mindkistv ction, D.C. D.P.R., 129 F. Supp. .566. Most of these cases

only cite authority, and none treat all the facts and arguments

presented.to us. ‘To the contrary is Miller v. United States, D.C.

W.D. Mo., 124 F. Supp. 203, quoted by us infra and followed in our

decision herein. — : oe .

¢

Az

my

.

World War I insurance legislation, was unwilling te

find a tacit congressional! intent: to eonvert automatic

insurance into a mere gratuity, United States vy. —

Jackson, supra, 302 U: 8.°628; and we are similarly .

unwilling.to bredk the expect: tions of the families of-

the men who faied to buy. commereial policies in

reliance.on the Governnent’s insurance. .The 1951.

statute created a ‘‘contract of insurance’’ as much as

such a relationship is possi bie between the’ Ciover nment

and the men whom. it can compel to serve.

We agree with the forceful and. persuasive a

of Judge, now Mr. Justice, Whittaker in Willer -

‘United States, D.C. W. D. Mo., 124 BF. Supp. 203, 2044.

205: **Servicemen who lose their lives in the service

_of our country, and the fam#ies of those men, are not:

the discretionary cestuis of a beneficent Mogren

Administration, but; rather, are the beneficiaries of ;

‘grateful America * * *.’? We shall follow it.

.

Reversed and remanded.

Judgment of py ree

[ Caption omitted |

(Filed April 1, 1957)

APPEAL FROM THE UNITED States Districr Courr. .

FOR THE Sov THERN District OF NE W York

| "This cause came on to be heard on the transe ript. of

record from ‘the Wnited St tate s District Court for the

Southern District of New York, and was argued by

_- counsel,

Ox CoNSIDERATION WHEREOF,: it’ is now hereby

ordered, pact ies and ‘decreed that the order of said

District Court be and it he reby is reversed. and action -

renianded in accordance with the opinion of this court.

GOVERNMENT PRINTING OF FICEIG5S 7—432214/P.6. 16