The opinion of the court was delivered by: HOLTZOFF
This is an action by the widow of a Naval officer for relief in the nature of a mandamus to direct the Paymaster General of the Navy to pay her an amount equal to six months' pay of the deceased at the rate received by him at the time of his death.
The pertinent statute provides that upon the death, from wounds or disease, of any officer or enlisted man on the active list of the regular Navy or regular Marine Corps, the Paymaster General of the Navy shall cause to be paid to the widow an amount equal to six months' pay at the rate received by the deceased at the time of his death. If there be no widow, the payment is to be made to his child or children, and if there be no widow or child, then to any other dependent relative of the deceased previously designated by him.
The plaintiff and the deceased were married on July 3, 1945, at Elkton, Maryland, and lived together as man and wife until the husband's death on March 10, 1946. The Paymaster General of the Navy declined to pay the statutory allowance to the plaintiff, on the alleged ground that her marriage to the deceased was invalid. The basis for this conclusion was that the plaintiff had been previously married; that the prior marriage ended in a divorce obtained in Mexico, although neither of the parties to the marriage was a resident of that country at the time when the divorce was granted; that this divorce was ineffective; and that, therefore, the plaintiff was not free to contract the second marriage. As the deceased left no children, the Navy Department paid the allowance to his sister
The first question to be determined is whether the ruling of the Navy Department is subject to judicial review. It may be assumed, without deciding, that prior to the enactment of the Administrative Procedure Act of June 11, 1946, 5 U.S.C.A. § 1001 et seq., the action of the Navy Department would have been final and conclusive, and could not have been re-examined by the courts. A long, unbroken line of authorities upholds the doctrine that a writ of mandamus may not be granted to compel the performance of a duty on the part of a public officer involving the determination of questions of law or fact, as this remedy is limited to ministerial acts, Brunswick v. Elliott, 70 App.D.C. 45, 103 F.2d746; Southern Transp. Co. v. Interstate Commerce Comm., 61 App.D.C. 284, 61 F.2d 925.
The question arises, however, whether the Administrative procedure Act, Act of June 11, 1946, U.S.C.A., Title 5, Section 1001-1011, has changed the law in this respect. We, therefore, proceed to an analysis of this statute
Section 2(a) of the Act defines the extent of the statute. It in effect provides that the Act applies to each authority of the Government of the United States, except the Congress, the Courts, the territorial governments, and the District of Columbia. For certain purposes, it also excepts courts-martial and military commissions as well as military or naval authority exercised in the field in time of war, or in occupied territory. It also excludes functions performed under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., the Contract Settlement Act of 1944, 41 U.S.C.A. § 101 et seq., and the Surplus Property Act of 1944, 50 U.S.C.A.Appendix, § 1611 et seq.,
The Navy Department, therefore, is not exempted from the provisions of the statute, except in respect to naval authority exercised in the field in time of war or in occupied territory, and in respect to courts-martial. All other activities of the Navy Department, including the one involved in this case, are within the scope of the Act.
Judicial review of administrative action is governed by Section 10 of the Act.
Two classes of actions are excepted from the right of judicial review: first, those as to which statutes preclude judicial review; and, second, those as to which agency action is by law committed to agency discretion. A statute precluding judicial review may be one which expressly provides that any administrative action taken thereunder may not be re-examined and set aside by the courts. Or without expressly so asserting, it may clearly and affirmatively indicate that the action of the administrative agency is to be deemed final and conclusive for all purposes. For example, some of the statutes relating to the activities of the Veterans' Administration have been so construed, Silberschein v. United States, 266 U.S. 221, 45 S. Ct. 69, 69 L. Ed. 256
In the case at bar, however, there is no such indication. On the contrary, the opposite inference is warranted. The first proviso of the statute governing the payment of the allowance provides that the determination by the Secretary of the Navy of the fact that there is no widow shall be final and conclusive upon the accounting officers of the Government. The obvious meaning of this limitation is that the rulings of the Secretary of the Navy in such matters are not reviewable by the Comptroller General. Expressio unius est exclusio alterius. On the basis of this canon of statutory construction, this provision should be interpreted as meaning that the determination of the Secretary of the Navy shall be final and conclusive on the Comptroller General of the United States, but on no one else. The conclusion irresistibly follows that the statute in question does not preclude judicial review.
Subsection (a), Sec. 10, confers the right to secure a judicial review on any person adversely affected or aggrieved by any agency action within the meaning of any relevant statute. The effect of this provision is, on the one hand, to exclude from the right of judicial review all Governmental action affecting the public generally, but not impinging on the legal rights of any individual;
and, on the other hand, to permit an appeal to the courts by any person whose individual legal rights are adversely affected. Obviously, the plaintiff is aggrieved by the defendant's denial of her claim to a widow's gratuity and, therefore, is accorded the privilege of a resort to the courts.
Subsection (c) provides that every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review.
The conclusion is inescapable that under the Administrative Procedure Act every final agency action is subject to judicial review at the behest of any person whose legal rights are adversely affected,unless the action is taken under a statute precluding judicial review, or unless the agency action is by law committed to agency discretion.
In this connection, it is desirable to consider subsection (b) of Section 10, which provides that the form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute, or in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. In other words, if there is provided an adequate specified statutory review proceeding in respect to any specified agency action, this form of proceeding should be pursued. In the absence or inadequacy of any such proceeding, recourse may be had to any applicable form of legal action. By the word 'applicable' is meant 'appropriate or suitable.' Consequently, the aggrieved party may invoke any suitable or appropriate form of proceeding or remedy.
Thus, the Standard Dictionary defines the word 'applicable' as follows: 'Applicable, capable of being applied; suitable or fit for application; relevant, fitting.' Webster's Dictionary contains the following definition: 'Capable of being applied; fit; suitable; pertinent.' Black's Law Dictionary, 3d Ed., p. 125, defines the term as follows: 'Applicable, fit, suitable, pertinent, or appropriate.' The word 'applicable', therefore, is not a term of limitation but of description.
The reports of the Committees on the Judiciary of the Senate and House of Representatives, concerning this legislation clearly indicate that the foregoing conclusions are in accord with the legislative intent. Thus the Report of the Senate Committee on the Judiciary (S. Rept. No. 752, 79th Congress) submitted by Senator McCarran, states that the legislation 'sets forth a simplified statement of judicial review designed to afford a remedy for every legal wrong'. This Report in discussing Section 10(a) makes the following observation:
'Any person suffering legal wrong because of any agency action, or adversely affected within the meaning of any statute, ...