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THOMPSON v. WHITTIER

June 27, 1960

Robert G. THOMPSON, Plaintiff,
v.
Sumner G. WHITTIER, Administrator of Veterans Affairs, Defendant



The opinion of the court was delivered by: HOLTZOFF

The plaintiff, Robert G. Thompson, is a veteran of World War II, who was in receipt of compensation from the Veterans Administration for a service connected disability. The Veterans Administration terminated the payments on the authority of 38 U.S.C. 1 3504, on the basis of a finding that he had aided an enemy of the United States during the Korean Conflict. This action is brought for the purpose of setting this ruling aside on the alleged ground that the foregoing statute is unconstitutional, as well as on the alleged grounds that the Administrator misconstrued the statute; that the procedure followed by him was lacking in due process of law; and that his finding of fact is not sustained by substantial evidence. Inasmuch as a question of constitutionality of an Act of Congress was raised, this three-judge court was convened. *fn1" Both parties moved for summary judgment and the case is now before the court on these cross-motions. We uphold the constitutionality of the statute and sustain the decision of the Veterans Administration.

The following undisputed facts appear from the papers attached to the motions and the rulings of the various agencies of the Veterans Administration. The plaintiff served in the United States Army from November 28, 1941 to August 23, 1943, when he was honorably discharged. During his term of service he received the Distinguished Service Cross. He was awarded compensation by the Veterans Administration for pulmonary tuberculosis, which was found to be service connected. On October 14, 1949, he was one of a number of defendants who were convicted in the United States District Court for the Southern District of New York, on a charge of knowingly and wilfully conspiring to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. This conviction was affirmed by the Court of Appeals for the Second Circuit, United States v. Dennis, 183 F.2d 201, and later by the Supreme Court, Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. The decision of the Supreme Court was rendered on June 4, 1951. Early in July, 1951, when the plaintiff was under an order to surrender to serve his sentence, he disappeared, became a fugitive, and remained in hiding until he was found and taken into custody a couple of years later. In view of the fact that his whereabouts were unknown, no compensation was paid him subsequently to June 30, 1951.

 On April 29, 1955, -- after the plaintiff had been apprehended, -- the Central Committee on Waivers and Forfeitures, an agency of the Veterans Administration, determined that the award of compensation to the plaintiff should be set aside on the ground that he had aided an enemy of the United States during the Korean Conflict. Pursuant to the prescribed procedure the plaintiff appealed to the Board of Veterans Appeals, which was an appellate agency within the Veterans Administration. In accordance with his request, a full hearing was accorded to him by the Board. A summary of the evidence against him was submitted to him in advance of the hearing. He was granted an opportunity to introduce evidence and to present an argument and a brief. In effect, the proceeding before the Board of Appeals was a trial de novo. On July 31, 1956, the Board affirmed the prior action of the Committee in a lengthy and comprehensive opinion. Subsequently the plaintiff requested a reconsideration, which was denied on May 5, 1959, again in a detailed opinion. The Veterans Administration, while setting aside the award of compensation to the plaintiff, apportioned and allocated to the plaintiff's dependent wife and children for direct payment to them, an appropriate portion of the amount previously paid to him.

 In brief the evidence on which the Committee and the Board acted, showed that the plaintiff had joined the Communist Party in 1933 and became a member of various groups within the party. In August 1935, he went to Russia as an adviser to the Sixth World Congress of the Young Communist International Congress and remained there for over a year, working as a machinist and attending lectures and courses in Marxism-Leninism. In January 1937, he fought with the International Abraham Lincoln Brigade of the Spanish Republican Army. He returned to the United States in 1938 and became the State Secretary of the Young Communist League at Columbus, Ohio, and later a national vice president of the Young Communist League. In 1941, he transferred his activities to New York City, where he worked for the Young Communist League, until he entered the armed forces. After his discharge from the military service, he became national secretary of the Young Communist League, and a contributor to 'the Daily Worker', -- a publication of the Communist Party. He was an active member of various organizations within the Communist Party. As above stated, he was convicted in the Southern District of New York, on a charge of violating the Smith Act, 18 U.S.C. 2385, and this conviction was affirmed first by the Court of Appeals for the Second Circuit, and then by the Supreme Court. After July 2, 1951, he avoided apprehension for over two years and was finally arrested on August 27, 1953, in California.

 The evidence of plaintiff's activities prior to the beginning of the Korean Conflict, which commenced on June 27, 1950, was considered by the Veterans Administration solely as casting light upon the plaintiff's intent in committing the specific acts subsequently to June 27, 1950, on the basis of which the award of compensation was vacated. These activities consisted of various speeches made by the plaintiff at meetings and conventions of Communist organizations during the Korean Conflict. These statements were designed to weaken and hinder the military and economic efforts of this country. Among these utterances were the following: that 'mass action now can still halt a Police State'; that 'American imperialism is hiding behind the skirts of the Negro GI in Korea'; a demand for the withdrawal of the United States troops from Korea; criticism of the 'gigantic armament program' and its costs; an assertion that 'the Truman 'get tough with Russia policy' means in the last analysis get tough with the American people'; that 'the way of life of the working people * * * daily becomes more cruelly affected and more viciously warped with each war move of the Wall Street bankers and the Washington politicians'; references to the war effort of the United States as 'the savage Truman-MacArthur war of aggression' in Korea; as well as similar utterances.

 The pertinent statutory provisions are as follows:

 38 U.S.C. § 310:

 'For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is the result of the veteran's own willful misconduct.' *fn2"

 38 U.S.C. § 3503(a):

 '(a) Whoever knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by the Veterans' Administration (except laws pertaining to insurance benefits) shall forfeit all rights, claims, and benefits under all laws administered by the Veterans' Administration (except laws pertaining to insurance benefits).'

 38 U.S.C. § 3504(a) and (b):

 '(a) Any person shown by evidence satisfactory to the Administrator (to) be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Veterans' Administration.

 '(b) The Administrator, in his discretion, may apportion and pay any part of benefits forfeited under subsection (a) to the dependents of the person forfeiting such benefits. No dependent of any person shall receive benefits by reason of this subsection in excess of the amount to which he would be entitled if such person were dead.' (Emphasis supplied.)

 It is contended by the plaintiff that Section 3504 is repugnant to the Constitution in that it is a bill of attainder and an ex post facto law; that it is lacking in due process of law; and that it fails to formulate a definite standard of guilt. These contentions are predicated on the major premise that the result contemplated by Section 3504 is additional punishment for the offenses to which it refers. On the other hand, it is argued by counsel for the Government that this provision merely sets forth additional ...


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