Tracy v. Gleason

• Decision Date: 25 May 1967
• Docket Number: No. 20117.,20117.
• Parties: Margaret C. TRACY and Mary R. Tracy, Co-Administratrices of Estate of George Tracy, Appellants, v. John S. GLEASON, Jr., Individually and as Administrator of Veterans Affairs, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

379 F.2d 469 (1967)

Margaret C. TRACY and Mary R. Tracy, Co-Administratrices of Estate of George Tracy, Appellants, v. John S. GLEASON, Jr., Individually and as Administrator of Veterans Affairs, Appellee.

No. 20117.

United States Court of Appeals District of Columbia Circuit.

Argued January 4, 1967.

Decided May 25, 1967.

Mr. James V. Dolan, Washington, D. C., with whom Mr. John E. Nolan, Jr., Washington, D. C., was on the brief, for appellants.

Mr. Alan S. Rosenthal, Atty., Department of Justice, with whom Asst. Atty. Gen. John W. Douglas, Messrs. David G. Bress, U. S. Atty., and J. F. Bishop, Atty., Department of Justice, were on the brief, for appellee. Mr. Frank Q. Nebeker, and Miss Carol Garfiel, Asst. U. S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and BURGER, Circuit Judge.

WILBUR K. MILLER, Senior Circuit Judge:

The appellants, co-administratrices of the estate of George Tracy, sought a declaratory judgment that the appellee or his predecessor had wrongfuly terminated their decedent's pension. They also asked the District Court to require appellee to pay to them the sums due for the period of discontinuance. The appellee moved to dismiss on the ground that "the Court lacks jurisdiction to review a decision of the Veterans Administration regarding gratuitous benefits." From the District Court's action in granting this motion, the administratrices appeal.

The allegations of the complaint will be summarized as briefly as possible. George Tracy, an honorably discharged veteran of World War I, was on July 31, 1936, adjudged by the District Court

"* * * to be of unsound mind, suffering from dementia praecox catatonic type with homicidal or otherwise dangerous tendencies and particularly that he has not sufficient capacity for the government of himself and his property, that he has been so insane since June 30, 1936. * * *"

On the same day Tracy was admitted to St. Elizabeths Hospital where he continuously remained as a patient until his death on September 2, 1961.

The Veterans Administrator determined that Tracy was entitled to a pension of $60 per month beginning September 10, 1948, and continuing so long as he was totally and permanently disabled, subject to certain conditions. But, on March 7, 1949, the Administrator wrote to George Tracy at St. Elizabeths Hospital:

"Since you failed to cooperate with this office by not sic executing and returning Form 8-59 indicating the amount of your income for 1948, action has been taken to discontinue your pension payments."

(On January 12, 1949, a contact representative of the Veterans Administration at St. Elizabeths Hospital advised Margaret C. Tracy, a sister of George Tracy and now one of the administratices, that, apart from pocket money of $8 per month, the pension checks "are deposited to your brother's credit in the hospital finance office and will be turned over to him in full at the time of his discharge." It was not until November 2, 1960, that the Veterans Administration advised Margaret C. Tracy or her sister, Mary R. Tracy, that Tracy's pension had been discontinued.)

On January 12, 1961, Margaret C. Tracy was advised by the Veterans Administration that George Tracy was "entitled to pension on account of being permanently or totally disabled from November 7, 1960."¹ And on June 14, 1961, she was advised by the Veterans Administration that the amount of the pension was $85 monthly from November 2, 1960, of which $75 "is being placed in a special fund since it has been determined that he is presently not capable of managing his affairs." These payments were made from November 2, 1960, until September 2, 1961, when Tracy died.

Thus, Tracy's total and permanent disability was formally recognized by the Veterans Administration in 1948 and in 1961. As a matter of fact, his disability, which began no later than July 31, 1936, when he was adjudged insane and committed to St. Elizabeths, continued without interruption until his death in that hospital.

On October 18, 1962, Margaret C. Tracy and Mary R. Tracy, next of kin of George Tracy, appealed to the Board of Veterans Appeals from the Administrator's action in discontinuing in 1949 the pension benefits which had been awarded in 1948. They alleged the forfeiture of the pension was unlawful because it was based on George Tracy's failure to answer and return an income questionnaire, although he was not mentally competent to prepare and file such a document. (As we have said, the questionnaire was mailed to Tracy at St. Elizabeths Hospital.)

After this appeal had been pending nearly five months, the Board of Veterans Appeal denied it. The Board found, inter alia, as follows:

"1. Pension benefits were granted the veteran effective September 10, 1948, date of receipt of application, at which time it was reported that he had been hospitalized at St. Elizabeth\'s Hospital since 1936 for a mental condition. * * *"

"3. The originating agency terminated the veteran\'s pension benefits as of date of last payment in February 1949 for failure to respond to a request to submit income information in connection with his claim. * * *"

The Board's decision of March 7, 1963, said that at the time of forfeiture in 1949 for failing to answer the questionnaire, the Veterans Administrator did not know

"* * * the veteran was, in fact, incompetent or by reason of evidence in the file at such time should have known sic that he was incompetent."

The Board's decision refers, however, to certain documents which were in the Veterans Administration files at the time of forfeiture in 1949, from which the Administrator should have known Tracy was incompetent when the questionnaire was sent to him at a mental hospital. One of these is the application for disability pension benefits filed September 10, 1948. It shows on its face it was not filed by George Tracy himself, but by the Acting Superintendent of a mental hospital "for George Tracy." Attached to the application was a medical report of September 7, 1948, which read in part:

"George Tracy * * * was admitted to Saint Elizabeths Hospital July 31, 1936 by transfer from Gallinger Municipal Hospital where he was described as confused, depressed and hallucinated.

"* * * During the initial interview at the time of admission to Saint Elizabeths he was noted to be hallucinated and believed that he heard God\'s voice. He also spoke of visual hallucinations.

"During the course of his hospitalization this patient * * * continues to suffer bouts of confusion and depression. * * *

"Diagnosis: dementia precox (schizophrenia) catatonic type. * * *"

Furthermore, the Veterans Administration files already contained the income information for about three-fourths of the year to which the questionnaire pertained; for the pension application contains the following questions and answers:

"Question 8(c) `Names and addresses of former employers for last 12 months.\'

"Answer `Hospitalized since June 30, 1936.\'"

"Question 8(e) `Give total income for last 12 months received from:

"`Employers\' Answer `None\'

"`Self-employment\' Answer `None\'

"`From all sources other than work\' Answer `None\'

"`Value of your estate from all sources\' Answer `None\'"

"Question 9(c) `If you had employment could you work full time?\'

"Answer `No\'

"Question `If not, why?\'

"Answer `Hospitalized\'

"Question `Part-time?\'

"Answer `Hospitalized\'

"Question `If not, why?\'

"Answer `Hospitalized.\'"

On February 28, 1964, the Tracy sisters requested reconsideration of the Board's decision of March 7, 1963, for "obvious error of fact or law," in that the Veterans Administrator knew in 1949 or should have known that Tracy was incompetent when the questionnaire was sent to him at St. Elizabeths. After more than two months, on May 7, 1964, the Board of Veterans Appeals affirmed its denial of the Tracy sisters' appeal.

In our opinion the complaint tells a story of arbitrary and capricious action on the part of the officials: (a) the Administrator acted arbitrarily in the circumstances when he terminated the pension of Tracy because that unfortunate, totally disabled by insanity, had failed to return an income questionnaire; (b) the Board of Veterans Appeals acted arbitrarily in affirming the termination after it had learned the facts; and (c) the Administrator acted arbitrarily in failing to make payments for the full period of discontinuance after he had been told what he should have known before: that George Tracy was insane and was totally and permanently disabled in 1949 and continuously thereafter.

The District Court granted appellee's motion to dismiss for lack of jurisdiction, relying on 38 U.S.C. § 211(a) (1958):

"(a) Except as provided in sections 784, 1661, 1761, and as to matters arising under chapter 37 of this title, the 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."

So, the question on this appeal is whether the Administrator's forfeiture in 1949 of the pension benefits awarded in 1948 was a decision "on any question of law or fact concerning a claim for benefits or payments" within the meaning of that statute. (Emphasis supplied.)

In Wellman v. Whittier, 104 U.S.App. D.C. 6, 259 F.2d 163 (1958), after quoting the then § 11a-2 of Title 38, which is essentially the same as 38 U.S.C. § 211 (a) here involved, Judge Danaher said, at pages 11-12, 259 F.2d at 168-169:

"* * * Here, it will be noted, Congress accorded finality to decisions concerning claims,23 a term which is thoroughly understood and carefully defined. We have repeatedly recognized that non-reviewability must be accorded to the Administrator\'s decision as to claims. But we are not here concerned with a `c

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