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DE MISCH v. ADMINISTRATOR OF VETERANS AFFAIRS

September 11, 1969

Mrs. Natividad B. Vda De MISCH, Plaintiff,
v.
ADMINISTRATOR OF VETERANS AFFAIRS, Defendant



The opinion of the court was delivered by: WADDY

 WADDY, District Judge.

 This is an action in the nature of a mandamus to require the Veterans Administration to resume payment of death compensation to a widow of a veteran of the Spanish American War and to release all funds that have accrued since the termination of those payments. Plaintiff has prayed also that the Court award 10% of the death benefits to her attorney as a fee, notwithstanding the provisions of Sections 3604 and 3605 of Title 38 of the United States Code.

 Plaintiff is a citizen of the Philippines. She is the widow of one H. H. Misch, a deceased veteran who had Spanish-American War service from May 2, 1898, to November 1, 1898, and from August 22, 1899, to January 25, 1901. He received pension benefits for the period from April 21, 1924 to the date of his death, April 5, 1928.

 Following the death of the veteran, Natividad B. Vda De Misch, plaintiff herein, was recognized as his widow on the basis of proof of their ceremonial marriage in the Philippines on October 31, 1921, and was awarded death benefits under the Act of May 1, 1926, (44 Stat. 382-384, 38 U.S.C. (1952 Ed.) 364a. The award of death benefits was made January 12, 1932, with benefits commencing July 24, 1928, the date of receipt of her application. She received her first pension check during the latter part of March, 1932. Within a day or two thereafter a former landlord of plaintiff informed a Field Representative of the Veterans Administration that plaintiff "* * * was living as a querida of a policeman, Honorio Caguiwa." Thereupon the Veterans Administration instituted an investigation which resulted in the termination of pension benefits as of August 25, 1932. The termination was based upon a decision of the Veterans Administration dated August 16, 1932, to the effect that under the provisions of Section 2 of the Act of August 7, 1882 (22 Stat. 345, 38 U.S.C. 1952 Ed. § 199) she was no longer entitled to benefits because of her "open and notorious adulterous cohabitation." This decision of the Veterans Administration was affirmed by the Administrator's Board of Appeals on July 3, 1933.

 With the exception of a period from about 1939 to 1947, which included the period of World War II and the portion thereof when normal communications with the Philippines were interrupted, the plaintiff has from time to time written letters to the Veterans Administration protesting termination of her benefits. The Veterans Administration has at all times adhered to its decision of August 16, 1932 as affirmed July 3, 1933. This action was filed November 22, 1968.

 The first question to confront the Court is that of the degree of finality to be accorded by this Court to the Veterans Administration determination revoking plaintiff's previously granted benefits, i.e., does the Court have jurisdiction to review the Veterans Administration decision. In Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967), our Court of Appeals, in construing 38 U.S.C. § 211(a), held that as distinguished from decisions with respect to claims for benefits, a decision by the Veterans Administration revoking an extant right to benefits was reviewable in the courts. The statutory section construed in Tracy v. Gleason provided:

 
"Except as provided in sections 784, 1661, 1761, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision."

 It is the Government's position that Section 5 of Title I of P.L. 2 of 73rd Congress (3-20-33) [ 38 U.S.C. § 705 (1952 ed.)] is here applicable rather than the above quoted section, and they contend that, as construed by our Court of Appeals, that section does not recognize a distinction for purposes of reviewability between decisions as to claims for benefits and decisions revoking or refusing to reinstate benefits. To sustain this position the Government cites Hahn v. Gray, 92 U.S.App.D.C. 188, 203 F.2d 625 (1953). The section upon which the Government relies, provides:

 
"All decisions rendered by the Administrator of Veterans' Affairs under the provisions of sections 701, 702, 703, 704, 705, 706, 707-710, 712-715, 717, 718, 720, and 721 of this title or the regulations issued pursuant thereto, shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision."

 Inasmuch as the administrative action complained of by the plaintiff was made pursuant to Section 2 of the Act of August 7, 1882 (22 Stat. 345, [ 38 U.S.C. § 199 (1952 ed.)] and, inasmuch as said section is not one of the Sections enumerated in 38 U.S.C. § 705 (1952 ed.), it appears to this Court that the Government's reliance upon 38 U.S.C. § 705 (1952 ed.) is misplaced. Furthermore, Hahn v. Gray does not support the Government's position. Of that case the Court of Appeals said in a footnote to Wellman v. Whittier, 104 U.S.App.D.C. 6 at p. 12, 259 F.2d 163 at p. 169 (1958):

 
"Of course a congressional termination of payments is in an entirely different category; cf. 38 U.S.C.A. § 729; and so as to terminations of and reductions in payments pursuant to regulations issued pursuant to statute. Hahn v. Gray, 1953, 92 U.S.App.D.C. 188, 203 F.2d 625, is not to the contrary. There we considered a claim by one who 'was no longer the unremarried widow of a veteran and was properly denied restoration to the pension rolls.' Id., 92 U.S.App.D.C. at page 190, 203 F.2d at page 626.'"

 As indicated above, the evidence taken from the Veterans Administration file shows that plaintiff received her first pension check during the latter part of March 1932, and that within a day or so of the delivery of this check a former landlord of plaintiff's informed a Field Examiner of the Veterans ...


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