Smith v. United States, 3251.
| Decision Date | 12 April 1932 |
| Docket Number | No. 3251.,3251. |
| Citation | 57 F.2d 998 |
| Parties | SMITH v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Holmes Hall, of Richmond, Va. (M. J. Fulton, of Richmond, Va., on the brief), for appellant.
William P. Boehmer and Alvah H. Martin, Asst. U. S. Atty., both of Norfolk, Va., for the United States.
Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.
This is an appeal from an order dismissing a suit filed under the Tucker Act, 28 USCA § 41 (20), by one P. A. L. Smith, Jr., committee of the estate of Thornton L. Davis, a veteran of the World War and a person of unsound mind. The petition alleged that compensation had been awarded Davis under a disability rating approved by the Veterans' Bureau; that there had accrued and become payable to him under such award the sum of $3,000 and accrued interest; that Davis was insane and was a patient at Southwestern State Hospital at Marion, Va.; that petitioner had been duly appointed committee of his estate and had furnished the Veterans' Bureau certificate of his qualification; and that petitioner had made demand for the amount due, which the government withheld and refused to pay to him. It concluded with a prayer for judgment against the United States for the amount due.
We think that the suit was properly dismissed. If petitioner is right in his contention that the award of the Veterans' Bureau fixed and determined the right of his ward to compensation, so that no discretion remained in the Director to withhold payment, as to which we express no opinion, his remedy manifestly was not a suit against the United States to adjudicate a liability which had already been determined, but a suit against the Director of the Veterans' Bureau for a writ of mandamus to require him to perform his duty with respect thereto. Under the World War Veterans' Act (38 USCA § 421 et seq.), the adjudication of claims for disability compensation has been confided, not to the courts, but to the United States Veterans' Bureau; and the courts are given no power to control the exercise of the discretion vested in that Bureau. When, by virtue of its action, a person becomes entitled to money as of right under the law, nothing could be added to the right by the judgment of a court. The remedy of the party entitled is mandamus to require the officer charged with the duty of making payment to him to discharge the duty. U. S. ex rel. Dunlap v. Black, 128 U. S. 40, 9 S. Ct. 12, 32 L. Ed. 354; Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559, 609; Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60; Parish v. MacVeagh, 214 U. S. 124, 29 S. Ct. 556, 53 L. Ed. 936.
Petitioner concedes that no authority for the institution of this suit is to be found in the World War Veterans' Act, but contends that same is authorized by the general terms of the Tucker Act, which provides for suits against...
To continue reading
Request your trial
-
Clark v. United States, 72-C-13-CR.
...this court would not have jurisdiction under § 1346(a)(2) of plaintiff's claim for $60 per month compensation. See Smith v. United States, 57 F.2d 998, 999 (4th Cir. 1932); Anderson v. United States, 205 F.2d 326, 328 (9th Cir. 1953). DEATH GRATUITY UNDER 10 U.S.C. § 1476 Plaintiff's final ......
-
Anderson v. United States
...save pensions and compensation to veterans of the Army and Navy. See e. g., Morgan v. United States, 5 Cir., 115 F.2d 426; Smith v. United States, 4 Cir., 57 F.2d 998. It was held inapplicable to annuities payable under the Civil Service Retirement Act in Dismuke v. United States, supra, on......
-
Hines v. United States
...S.Ct. 353, 62 L.Ed. 788; Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901; McCarl v. Wylly, 1 Cir., 5 F.2d 964; Smith v. United States, 4 Cir., 57 F.2d 998; United States ex rel. Lyons v. Hines, App.D.C., 103 F.2d 737, decided February 6, ...
-
Poulos v. U.S. Dep't of Veterans Affairs
...U.S.C. § 1346(d)) because plaintiff is attempting to recover a pension. (Doc. No. 8, at 9 (citing cases, including Smith v. United States, 57 F.2d 998, 999 (4th Cir. 1932) (“And there can be no question but that a claim for [veteran's] disability compensation is a claim for a pension within......