Girault v. United States, 50474.

• Decision Date: 08 November 1955
• Docket Number: No. 50474.,50474.
• Citation: 135 F. Supp. 521,133 Ct. Cl. 135
• Parties: Hunter Louis GIRAULT v. The UNITED STATES.
• Court: U.S. Claims Court

135 F. Supp. 521

133 Ct. Cl. 135

Hunter Louis GIRAULT v. The UNITED STATES.

No. 50474.

United States Court of Claims.

November 8, 1955.

Paul R. Harmel, Washington, D. C., for plaintiff. Geiger & Harmel, Washington, D. C., were on the briefs.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

WHITAKER, Judge.

In our opinion filed April 5, 1955 in this case we held, 130 F.Supp. 343, that two documents, called to the attention of the Secretary of War after he had held that plaintiff was entitled to receive retired pay because incapacitated for active service, which incapacity he had held was an incident of his military service — we held that these two documents constituted newly discovered evidence, which authorized the Secretary of War to reopen the case. We further held that his decision reversing his prior decision was not arbitrary, and, hence, was binding on us.

After plaintiff's motion for a rehearing, we reexamined the question and have now concluded, first, that the alleged "newly discovered evidence" was not unavailable before the first decision of the Secretary of War and was not substantial enough to authorize him to reopen the case, within the rule laid down in the cases of Spencer v. United States, 102 F.Supp. 774, 121 Ct.Cl. 558, certiorari denied 344 U.S. 828, 73 S.Ct. 29, 97 L.Ed. 644, and Carlin v. United States, 100 F.Supp. 451, 121 Ct.Cl. 643.

Secondly, we have concluded that, while the Secretary's action in reversing his former decision was not arbitrary, in the sense that there was a wanton disregard of plaintiff's rights, it was, nevertheless, so clearly erroneous, and so obviously contrary to law that we must hold it to have been arbitrary, in the sense that it was an abuse of discretion. In such case we have jurisdiction to set it aside and render that decision which the facts and the law require. Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561; Silberschein v. United States, 266 U.S. 221, 45 S.Ct. 69, 69 L.Ed. 256; Garfield v. United States ex rel. Goldsby, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168; Carlin v. United States, supra, and other cases therein cited.

Before discussing the alleged "newly discovered evidence," we must state the facts in order that this evidence may be evaluated.

Plaintiff first enlisted in the United States Army in 1916. He was severely wounded in action during the first World War, contracted active tuberculosis, and resigned his commission as captain in 1925.

Because of his prior training and experience and his knowledge of the military science, the Army sent an emissary to him, when we entered World War II, to induce him to reenter the service. Plaintiff applied for a commission, but his physical examination showed that he suffered from chronic bronchitis, and for this reason he was rejected. Plaintiff was drawing compensation on account of this disability, but he executed a sworn statement waiving "all disability compensation from the United States Government for the period during which I hold a temporary commission in the Army of the United States." He was thereupon accepted and reported for active duty as captain on March 21, 1942.

After two years in the service, plaintiff was treated for arterial hypertension and retinitis, hypertensive type, and for arteriosclerosis. He was ordered before a Retiring Board.

This Board found that plaintiff was incapacitated for active duty because of arteriosclerosis and arterial hypertension, but found that these diseases were not an incident of plaintiff's military service.

At plaintiff's request, the Retiring Board was reconvened to consider additional evidence offered by plaintiff, but it adhered to its former findings. Plaintiff protested the findings. On review, the Surgeon General recommended the matter be returned to the Board for further consideration. This was done, but the Board again adhered to its former findings.

Then the Surgeon General, on review of the findings, made this recommendation to the Adjutant General:

"In view of the evidence submitted in the record in that this officer's arterial hypertension, moderate, was manifested in the service on or about March 1944, approximately two years subsequent to this officer's entrance upon active duty and no evidence has been submitted to indicate clearly the existence of this condition prior to March 1944, it is the opinion of this office that this officer's hypertension should be considered the result of an incident of service."

Following this, the Separations Board of the War Department recommended that that part of the findings of the Retiring Board which held that plaintiff's incapacity was not an incident of the service be disapproved. The Secretary of War concurred, and held that the cause of plaintiff's incapacity was an incident of the service.

The Adjutant General then certified plaintiff's name to the Veterans' Bureau for retirement pay in the amount of $215.62 monthly.

About two months later, the Veterans' Administration forwarded to the Adjutant General a photostatic copy of a letter written that Bureau by plaintiff's wife on December 9, 1940, prior to the beginning of his second period of military service, and it also forwarded a statement made by plaintiff prior to his entry upon his second period of service at the time he underwent a physical examination by the Veterans' Administration. There was also enclosed the Veterans' Administration's report of the physical examination that had been made of plaintiff by this Bureau on February 27, 1941.

Upon the basis of this so-called newly discovered evidence, the Secretary of War reopened the case and again referred it to the Retiring Board.

As might be expected, the Retiring Board adhered to its three former decisions and held that plaintiff's incapacity was not an incident of the service. Plaintiff appealed to the Secretary of War.

On review, the Surgeon General made this statement in his recommendation to the Adjutant General, after having reviewed the so-called newly discovered evidence:

"It is the carefully considered opinion of this office that this officer had his arteriosclerosis and hypertension for some time prior to February 1941, and that his continuous rest during 1940, alleviated his symptoms but had he admitted the true history when he was examined for appointment in January 1942, he would never have been qualified. It is further the opinion of this office that this officer's incapacities where not permanently aggravated by the military service."

The Adjutant General thereupon advised plaintiff that his appeal to the Secretary of War from the findings of the Retiring Board had been denied, and the Adjutant General also notified the Veterans' Administration that plaintiff was not entitled to retirement benefits.

We held in Spencer v. United States, supra, and Carlin v. United States, supra, that the findings of the Secretary of War on a man's eligibility to retirement pay was final and could not be reopened, except in the case of fraud, substantial new evidence, mistake of law, or mathematical miscalculation.

The first question we must answer is whether or not the information furnished the Secretary of War by the Veterans' Administration, after he had rendered his decision holding that plaintiff was entitled to retired pay, constituted substantial newly discovered evidence. We must hold that it did not.

In the first place, this evidence was readily available for consideration of the Retiring Board and the Secretary of War before he rendered his decision holding plaintiff to be entitled to retirement pay. The War Department knew that plaintiff had been drawing compensation from the Veterans' Administration prior to his entry into the service, because the Army consented to issue plaintiff a commission only after plaintiff had executed a waiver of all compensation benefits which he had been receiving from the Veterans' Administration, so long as he held a temporary commission in the Army. The Retiring Board and the Secretary of War, therefore, knew that plaintiff must have had a physical examination by the Veterans' Administration. The exercise of less than ordinary diligence required the Retiring Board and the Secretary of War to call on the Veterans' Administration for such information as it had prior to the rendition of its decision.

No court would set aside its judgment on the ground that such evidence was newly discovered. The rule applicable to a court should be applied to such a decision of the Secretary of War. Such evidence must have been produced before the initial decision of the Secretary of War, at the peril of the Government. Since it was so readily available, it cannot possibly be considered to have been newly discovered evidence. Newly discovered evidence is only such evidence as could not have been discovered by the exercise of due diligence prior to the rendition of the initial decision of the Secretary of War.

Nor do we think this so-called newly discovered evidence was "substantial" newly discovered evidence. Bear in mind that the question before the Secretary of War was whether or not plaintiff's arteriosclerosis and arterial hypertension were an incident of the service. If he had had these diseases prior to his entry into the service, they could not have been said to be an incident of his service unless aggravated by his service. So, the question is whether or not he had these diseases before he entered the service.

The letter from plaintiff's wife to the Veterans' Administration sheds absolutely no light whatever on whether or not he had this condition before he entered the service. This merely shows that plaintiff never did regain his strength...