# Petition for Writ of Certiorari — United States v. Wilkinson (No. 312) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1439%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text 2 ares, Sees - nes : at , ee pe AS AE a 2 IS a EN 5 SSUES o nth stony P . - , - ° ° a autho Sup mie gon nrtof the cut ite el States Baie OD eTORER Boe cts Pe aa ‘ s : | LERM, 1 | | 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 | ae i: a is FP, EE RANKIN, Sol icitor Gdneral, Cihocr ‘OCHRAN Down: 7 Pas Je. , ; A esist @ rie Attorney Gener, oe , A : =, i vt . SAMUEL -D: SLADE, : ‘Mortrex How. ANDER, /: st NE ; Attor He Ys : ' ve De sees aaa, vai ‘ani ef 4EN: PEE . W yaoton 2.5 Fie: ri z AGS o “ , . os INDax . . : 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 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: ' 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. > . ~ ° . : ‘ a A Tt. a ? . ° “J Z- e ~ { ry e fy A?) es 7 | -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, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1439%3A3. Public record. Not legal advice.