
    WILLIAM P. McELHANY v. THE UNITED STATES
    [No. 45583.
    Decided March 6, 1944]
    
      
      Mr. Ashby Williams for the plaintiff.
    
      Mr. S. R. Gamer, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. William A. Stern, II, was on the brief.
   Whitaker, Judge,

delivered the opinion of the court:

It is stipulated that plaintiff is a disabled veteran of World War I and as such is entitled to compensation in the amount of $936.84. It is also stipulated that he is entitled to $402.50 as the beneficiary-of a War Bisk Insurance policy on the life of his brother, another veteran of World War I. These sums are being withheld from him, however, because the defendant asserts the right to offset them against a fine of $5,000 imposed on plaintiff for violation of the White Slave Act. He sues to recover them.

We think it is clear that the right of offset is denied by the Act of August 12,1935 (49 Stat. 607, 609). That Act plainly manifests the purpose of preserving for the support of the veteran all benefits under the War Bisk Insurance Act, whatever his financial obligations or desires. It makes them nonassignable, exempts them from taxation, and makes them immune from all creditor process.

Obviously claims of the United States come as much within the purpose of the statute — to preserve the benefits for the support of the veteran — as the claims of private creditors, and, therefore, although the sovereign was not expressly named, it would seem its claims would be included therein. It was evidently so intended because the benefits are made expressly exempt even from the sovereign’s claim for taxes. If exempt from such a claim, it would seem they would be exempt from all. Indeed the Act provides for only one demand to which they are subject, that is one due the “United States arising under such laws,” to wit, the veterans’ benefit Acts. This is the only exception made. Under a familiar maxim it is to be presumed no other one was intended.

The question here presented was not discussed in O’Leary v. United States, 82 C. Cls. 305.

We must conclude, therefore, the defendant is not entitled to the set-offs claimed.

It is said, however, that we have no jurisdiction to render judgment for the compensation claimed because of the provisions of the World War Veterans Act of 1924 (43 Stat. 607; Title 38 U. S. C. sec. 426), the Act of March 20, 1933 (48 Stat. 8, 9), and the Act of October 17, 1940 (c. 893, sec. 11, 54 Stat. 1193, 1197). These Acts make the decisions of the Administrator of Veterans’ Affairs final and conclusive on all questions of law and fact “concerning a claim for benefits” but plaintiff is not contesting the Administrator’s decision on his claim for benefits. He accepts it and sues on it. What he does question is the action of the Administrator and the Comptroller General in doing something outside of the veterans’ Acts, the setting off of amounts admittedly due him under those Acts against an extraneous demand against him. The right to decide such a question is not conferred on the Administrator.

Jurisdiction is conferred on the District Courts of controversies over a claimant’s right to insurance; but there is no controversy here over the insurance to which plaintiff is entitled; it is over the right to appropriate the amount of insurance admitted to be due to satisfy a claim arising outside the Act.

We think our jurisdiction is clear. Plaintiff is entitled to recover the sum of $1,339.34. Judgment for this amount will be rendered. It is so ordered.

Littleton, Judge; and Whaley, Chief Justice, concur.

Madden, Judge,

dissenting:

I think this court does not have jurisdiction to decide the questions here involved. As to the claim of compensation for disability, which accounts for $936.84 of the total claim, section 11 of the act of October 17, 1940, 54 Stat. 1197, as amended, 38 U. S. C. 11 a-2, uses the broadest possible language to give finality to the decisions of the Administrator of Veterans’ Affairs. It says:

Notwithstanding any other provisions of law, except as provided in Section 445 of this Title, as amended, and in Section 817 of this Title, the decisions of the Administrator of Veterans’ Affairs on any question of law or fact concerning a claim for benefits or payments under any Act 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 decisions.

The comparable sections prior to 1933 had not specifically denied any jurisdiction to the courts to review the Administrator’s decisions, and the Supreme Court of the United States, in Silberschein v. United States, 266 U. S. 221, 225, had said that there might be such review in cases where the Administrator’s decision was contrary to law, or not supported by evidence, or capricious. Section 5 of the act of March 20, 1933, 48 Stat. 9, 38 U. S. C. 705, specifically provided that “no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision.” The Supreme Court said, in Lynch v. United States, 292 U. S. 571, 587, that the purpose of this language “appears to have been to remove the possibility of judicial relief in that class of cases even under the special circumstances suggested in * * * Silberschein v. United States * * *.”

In 1939 the Court of Appeals for the District of Columbia decided the case of Hines, Adm'r. v. United States ex rel, Marsh, 105 F. (2d) 85, adversely to the Administrator, on the ground that his decision there under review did not fall within those titles of the Veterans’'Act as to which his decisions had been made final. The act of 1940, quoted above, followed, and the court which decided the Marsh case held, in Van Horne v. Hines, Admr., 122 F. (2d) 207, 208, that that act “clearly was intended to stop up the gaps created by that [the Marsh] decision.”

I recount this history to show the settled policy of Congress to deal with the question of gratuities to veterans by legislation and administrative action, and to keep them out of the courts. The Administrator could, with impunity, deny payments of compensation to a veteran for no reason at all. If so, I think he can deny payments because, in his view, the payments should be diverted to the liquidation of a fine which stands against the veteran.

As to the $402.50 of the plaintiff’s claim which consists of payments allegedly .due him under a War Risk Insurance policy on the life of his brother, the applicable statutes do not make the Administrator’s action final. Section 445 of 38 U. S. C., which section is referred to as an exception to the provisions of section 11 a-2, quoted at the beginning of this opinion, provides:

In the event of disagreement as to claim * * * under a contract of insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may be brought against the United States either in the district court of the United States for the District of Columbia or in the district court of the United States in and for the district in which such persons or any one of them resides, and jurisdiction is hereby conferred upon such courts to hear and determine all such controversies.

I think this language is plain, and that it furnishes an adequate remedy which' our assumption of jurisdiction will merely duplicate. A refusal to pay insurance because of an asserted set-off is, I think, a “disagreement as to [a] claim * * * under a contract of insurance,” and therefore falls within the language of section 445.

Jones, Judge, took no part in the decision of this case.  