Daylo v. Administrator of Veterans' Affairs

• Decision Date: 26 June 1974
• Docket Number: No. 71-1241,71-1241
• Citation: 501 F.2d 811,163 U.S. App. D.C. 251
• Parties: Constancia A. Vda de DAYLO v. ADMINISTRATOR OF VETERANS' AFFAIRS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 811

501 F.2d 811

163 U.S.App.D.C. 251

Constancia A. Vda de DAYLO v. ADMINISTRATOR OF VETERANS' AFFAIRS, Appellant.

No. 71-1241.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 19, 1973.

Decided June 26, 1974.

David V. Seaman, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, was on the brief, for appellant.

Harold J. Nussbaum, Washington, D.C., for appellee.

Before FAHY, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit judges.

J. SKELLY WRIGHT, Circuit Judge:

The Administrator of Veterans' Affairs appeals denial of his motion, ¹ under Rule 60(b), ² Federal Rules of Civil Procedure, for relief from a final, unappealed judgment in the nature of mandamus ³ ordering him to pay certain death compensation benefits to appellee Daylo, the widow of a serviceman killed in World War II. The Administrator grounds his motion on certain veterans' legislation, Section 8(a) and (b) of the Act of August 12, 1970, 38 U.S.C. 211(a) and 3111 (1970), ⁴ enacted after the final judgment became unappealable. If, as the Administrator contends, these provisions aim to upset judgments, like Mrs. Daylo's, which are final, no longer subject to appeal, and concerned with past legal and factual relationships, the provisions are of doubious constitutionality. Wherever such is fairly possible, we must construe congressional enactments so as to preserve them from constitutional doubt. Reading the language of these enactments against their legislative history, we are not persuaded that Congress intended to disturb judgments like Mrs. Daylo's. Accordingly, denial of the Administrator's motion for relief from the judgment was proper, and it is affirmed.

I

From 1945 to 1951 the Veterans' Administration (VA) paid widow's benefits to Mrs. Daylo under 38 U.S.C. 321. ⁵ In 1951, however, the Administration notified her that benefits would cease unless she could prove that she had 'not remarried'-- a statutory condition of eligibility. ⁶ This action conformed to the VA's administrative practice of shifting the burden of proof on the remarriage question to any widow-beneficiary living with another man and holding herself out to the community as his wife. ⁷ Mrs. Daylo sought to prove she had not remarried, but the Administrator found otherwise and terminated her benefits. ⁸

In no other circuit but ours would this controversy have found its way into the courts. ⁹ Since 1940 benefits disputes had been subject to a 'no review' statute which, until its amendment in 1970, provided that 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. 38 U.S.C. 211(a) (1964). ¹⁰ The view developed in this circuit, ¹¹ but in no other, ¹² that the phrase 'claim for benefits or payments' referred not to all benefits disputes but only to those involving initial benefit claims. It was our lonesome opinion that judicial review remained for disputes involving termination of benefits by the VA.

Needless to say, this position brought us a great deal of business. Many of these cases involved the VA's practice, in administering widows' benefits, of shifting the burden of proof on the remarriage question to the beneficiary. ¹³ We were unable to find statutory authority for the practice. See Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959). In 1962 Congress entered the dialogue by amending 38 U.S.C. 101(3) to provide that a 'widow,' to be eligible for benefits, must not have 'lived with another man and held herself out openly to the public to be the wife of such other man.' ¹⁴ By establishing a hard and fast rule this amendment went beyond the VA's own practice of merely shifting the burden of proof as to ceremonial remarriage. Recognizing this, Congress expressly gave the 1962 amendment prospective effect only. But the Senate Committee reporting out the amendment stated its understanding that the VA could apply its burdenshifting rule to instances of alleged remarriage occurring prior to 1962. ¹⁵ This understanding, having no statutory force, was not adopted by the courts in this circuit. ¹⁶

With this background, we may again pick up the thread of Mrs. Daylo's story. In 1969 she brought a mandamus action in the District Court to compel payment of the death compensation benefits denied her since the early 1950's. On May 7, 1970 the court granted partial summary judgment for Mrs. Daylo 'with respect to benefits payable prior to September 19, 1962' ¹⁷ (i.e., prior to the amendment, mentioned above, of 38 U.S.C. 101(3)). The post-1962 claims were reserved for later decision, but the District Judge made the partial judgment final and appealable under Rule 54(b). ¹⁸ The judgment required the Administrator to pay Mrs. Daylo her pre-1962 benefits 'within 120 days.' Deliberately, but for reasons not vouchsafed to us, the Government chose not to appeal Mrs. Daylo's judgment.

After the 60-day period for noting appeal had lapsed, ¹⁹ but still within the '120 days' granted by the District Court to the VA for compliance, Congress passed the Act of August 12, 1970, Pub.L. 91-376, 84 Stat. 787. Armed with this legislation, the Administrator moved under Rule 60(b) for relief from the judgment. Mrs. Daylo resisted the motion, but has not yet invoked court process to force compliance with the judgment. The court agreed to dismiss Mrs. Daylo's pending claims for post-1962 benefits, which decision Mrs. Daylo does not contest, but the court refused to vacate the final judgment involving pre-1962 benefits because it 'was legally entered and no appeal was taken therefrom, and * * * the validity of that judgment is unaffected by the passage of Public Law 91-376.' ²⁰

II

The Administrator contends that Section 8(a) and (b) of the new Act directly conflicts with Mrs. Daylo's judgment in the nature of mandamus. ²¹ Section 8(a) retroactively amended the 'no review' statute, 38 U.S.C. 211(a), to erase the distinction, located by this circuit alone, between initial benefit claims and benefit terminations. The 'no review' provision now reads:

On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors 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 by an action in the nature of mandamus or otherwise.

Section 8(b) added a new provision, 38 U.S.C. 3111, to ratify the VA's burdenshifting rule with respect to pre-1962 instances of alleged remarriage.

There shall be no payment of dependency and indemnity compensation, death compensation, or death pension which, because of a widow's relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans' Administration under the standard for determining remarriage applied by that agency before said enactment.

In the Administrator's view, 38 U.S.C. 211(a) conflicts with Mrs. Daylo's judgment by retroactively withdrawing the jurisdiction of the court which entered the judgment, thus rendering the judgment void. The Administrator finds a second conflict with the judgment by construing 38 U.S.C. 3111 as a legislative command directly contrary to the mandamus incorporated in the judgment. According to the VA, the court's mandate requires exactly that which the statutory provision forbids, i.e., 'payment of * * * death compensation * * * which, because of a widow's relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans' Administration under the standard for determining remarriage applied by that agency before said enactment.'

The Administrator's several contentions go an important step further than those considered, and accepted, in de Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972). There, judgment had been entered in the District Court against the VA in a benefits dispute, and the VA had appealed only the accompanying award of attorneys' fees, allowing the judgment for the beneficiaries themselves to become final. While the appeal of the fee award was pending here, Congress enacted the amendment to 38 U.S.C. 211(a), and the Administrator urged that the fee award accordingly be vacated on jurisdictional grounds. Recognizing that judgments awaiting decision on appeal are not 'final,' we agreed:

* * * We cannot reconcile the specification in the amended section of a date almost 30 years earlier with any notion that Congress intended these proscriptions to apply only to litigation commenced from the date of amendment forward. We see no purpose to be served by reaching back to the effective date of the older finality statute than to impart to it a meaning Congress felt it should always have had. That objective could be achieved only by intercepting noncontractual claims already in court as well as those that had not arrived, and that is obviously what Congress did. We hold that Section 211(a) in amended form was directed at pending as well as future judicial reviews of the Administrator's determinations on claims for noncontractual benefits.

149 U.S.App.D.C. at 163-164, 461 F.2d at 1249-1250. We took pains to restrict this holding to judgments pending appeal.

We agree that the judgments exclusive of the fee awards-- that is, the portions directing payment of benefits to the widow-claimants-- are beyond the purview of these appeals. Those portions are...