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06/23/60 Whittier, Admr. of v. Emmet

June 23, 1960

WHITTIER, ADMR. OF VETERANS' AFFAIRS, ET AL., APPELLANTS

v.

EMMET, APPELLEE; UNITED STATES, APPELLANT

v.

DEERING, MABBUTT ET AL., APPELLEES



Before Mr. Justice BURTON, retired,* and WASHINGTON and DANAHER, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

June 23, 1960. 1960.CDC.116

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURTON

The Administrator of Veterans' Affairs interpreted Article IV of the 1940 Act, prior to the 1942 Amendments, as establishing by implication a comparable obligation on the part of the insured servicemen to reimburse the Government for its payment of the guaranteed premiums. Under this interpretation, the Administrator collected over $1,640,000 from approximately 8,400 insured servicemen. He did this in large part by offsetting against the debts of the respective servicemen the dividends due them in connection with their National Service Life Insurance policies.3

Although there was some acquiescence in the Administrator's interpretation of the 1940 Act, there also was vigorous opposition to it. This resulted in conflicting judicial decisions4 culminating in 1957 in the Supreme Court's decision, with three Justices dissenting, in United States v. Plesha, 352 U.S. 202. In that case the Supreme Court held that, contrary to the Administrator's interpretation of the 1940 Act, prior to the 1942 Amendments, the insured servicemen were not obligated to reimburse the Government for its payment of premiums on their account.

After the Plesha decision, the next problem was that of returning to the servicemen their funds which had been used erroneously by the Government to reimburse itself for its payment of the guaranteed premiums.

To facilitate such refunding, Congress, in 1958, enacted Public Law 85-586.5 That Act authorized the Administrator of Veterans' Affairs, upon timely application, to refund to the servicemen, without interest, all amounts collected from them by the United States under its erroneous interpretation of the 1940 Act. Public Law 85-586 made available the money to make such refunds and also provided that the right to such refunds was not to be denied by reason of statutory time limitations, judgments theretofore rendered, or "any other technical defense."

In the three cases now before us plaintiffs ask not only for the principal of the sums claimed, but also for interest on delayed dividends due them under their National Service Life Insurance policies. Furthermore, they ask for the allowance attorneys' fees to cover services rendered not only to the named parties to the litigation, but to all persons similarly situated.

In No. 15066, the plaintiff, Emmet, sought a writ of mandamus from the District Court for the District of Columbia ordering the defendant officials to make the payments requested.

In Nos. 15067 and 15068 the plaintiffs, Deering and Mabbutt, brought suit, respectively, in the District Court for the Southern District of New York and the District Court for the Northern District of California for the payment of their claims pursuant to the Tucker Act,6 and the National Service Life Insurance Act.7 Those courts transferred the cases to the District Court for the District of Columbia in reliance upon 28 U.S.C. ยง 1404(a).8

That court consolidated the cases and granted a preliminary injunction, which is still in effect, forbidding the disbursement of more than 90% of the respective payments authorized by Public Law 85-586. It overruled all objections to its jurisdiction and to the propriety of taking action on the merits of the issues presented. After a plenary hearing it ordered payment by the Government not only of the amounts provided for in Public Law 85-586, but also of interest at 3% per annum on an amount equal to the value of the National Service Life Insurance dividends.9 It also authorized the payment of attorneys' fees of 5% on the aggregate amount of principal and interest to be refunded under Public Law 85-586.

The Government, on appeal, seeks a reversal of the judgment below on the ground that none of these actions should have been heard by the District Court for the District of Columbia. On the merits, the Government contends that neither the allowance for interest nor that for attorneys' fees was justified. For the reasons hereafter stated, we agree with the Government.

In No. 15066, originating in 1955 in the District Court for the District of Columbia, Emmet sought to litigate the question later resolved by the Supreme Court in United States v. Plesha (supra). He asked for a writ of mandamus directed against the Administrator of Veterans' Affairs, the Secretary of the Treasury, the Treasurer of the United States and the Comptroller General. It is elemental, however, that this extraordinary remedy was not available for such purpose, inasmuch as the Tucker Act provided an adequate remedy at law to test the question.10 The pecuniary liability of the United States may be determined only through such procedures as the United States has authorized. Moreover, a writ of mandamus will be issued only to compel the performance of a ministerial duty as distinguished from one calling for exercise of discretion.11 In this case the amounts claimed had not yet been determined at the time the action was filed. While this case was pending, the decision in the Plesha case and the enactment of Public Law 85-586 settled the major legal issues. They did not, however, ...


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