This Court also notes that in making the distinction between claims for benefits and actions of the administrator terminating benefits the Court of Appeals in Tracy v. Gleason expressly overruled Hahn v. Gray as to 38 U.S.C. § 211(a). See 126 U.S.App.D.C. 415 at 419, 379 F.2d 469. Accordingly, this Court believes it proper to and will abide by the distinction recognized in Tracy v. Gleason and find jurisdiction to determine whether the action of the Veterans Administration's Board of Appeals in terminating plaintiff's pension was arbitrary and capricious.
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 Administration that plaintiff "was living as the querida of a policeman, Honorio Caguywa."
An immediate field investigation was launched by the Veterans Administration "to learn the facts" and within the course of this investigation, sworn affidavits, each dated April 4, 1932, were obtained from one Juan Bolotro, one Carlos Aquitania, one Carmen Manaway, one Antonio Padrique and the plaintiff. Each of the affiants (except the plaintiff's) recounted personal observations of the plaintiff living with one Honorio Caguywa (Caguiwan). Each affiant further affirmed that by virtue of his living in close proximity to the plaintiff and her alleged "querido", he had overheard matters causing him to conclude that plaintiff and Caguywa were cohabiting as man and wife.
Plaintiff's affidavit dated April 4, 1932 reflects her being apprised of the identity of her accusers as well as having the affidavits of B. Carmen Manaway, Carlos Aquitania, Juan Bolotro and Antonio Padrique read to her. Plaintiff's affidavit further reflects that she understood the above four affidavits, denied the truth of those affidavits and stated, "I will never admit anything which happens in my private life, and that is all I have to say." Plaintiff also refused an opportunity to introduce any further testimony and accused her accusers of prevaricating because of personal animosity.
The Court is of the opinion that the Veterans Administration Board of Appeals had before it substantial evidence to support a finding that plaintiff was engaged in open and notorious illicit cohabitation with one Honorio Caguiwa.
Plaintiff argues, however, that the statute does not permit termination of her benefits for "illicit relations" but only for "open and notorious adulterous cohabitation." She says that adultery can only be committed where one of the parties is married, and that the evidence in this case is insufficient to establish that her "querido", if such there was, was a married man.
The only evidence before the Veterans Administration at the time it made its decision terminating plaintiff's benefits to substantiate the proposition that plaintiff's relationship was with a married man was contained in a letter dated April 1, 1932 from one Pedro Rodriguez addressed to
"The Manager, U.S. Veterans Bureau", in Manila, P.I. Rodriguez in said letter stated: