United States v. Gibson, 13670.
| Decision Date | 13 September 1955 |
| Docket Number | No. 13670.,13670. |
| Citation | 225 F.2d 807 |
| Parties | UNITED STATES of America, Appellant, v. Elma Agnes GIBSON, Administratrix of the Estate of Virgil Thomas Gibson, Deceased, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Warren E. Burger, Asst. Atty. Gen., John G. Laughlin, Paul A. Sweeney, Attys., Dept. of Justice, Washington, D. C., David A. Turner, Asst. Gen. Counsel, Veterans' Administration, Washington, D. C., Sherman F. Furey, Jr., U. S. Atty., Boise, Idaho, for appellant.
William S. Hawkins, E. L. Miller, Coeur d'Alene, Idaho, for appellee.
Before STEPHENS, HEALY and POPE, Circuit Judges.
Following our former decision in this case, 9 Cir., 207 F.2d 161, appellant filed a petition for rehearing in which our attention was called for the first time to part IV of Veterans' Regulation No. 1 (a), 38 U.S.C.A. following section 745. Paragraph II of which provides: "* * * In those cases in which the veteran, by virtue of the above provision, is found to be entitled to a pension under part III of Veterans' Regulation No. 1 (a), and is entitled to a pension under part I or part II of Veterans' Regulation No. 1(a), the Administrator of Veterans' Affairs is authorized and directed to pay to the veteran the greater benefit." In our opinion we noted that although Paragraph XIII of Regulation No. 10 provided that not more than one award of pension or compensation should be made concurrently to any person based on his own service yet there was nothing to prove that the total amount paid to the veteran was not the result of one award even though by mistake the amounts paid were transmitted monthly in two checks instead of one.
The Regulation quoted above, which was thus presented in the petition for rehearing, indicates that although a veteran could have a service connected pension or a nonservice connected pension, he could not have both and must take whichever payment was the greater. In this case therefore, the decedent was entitled to the $60 payment but was not entitled to the $41.40. For this reason we granted rehearing and the cause has been reargued. In the light of the Regulation above set out the Government has made sufficient proof of payment by mistake and that it was entitled to recover those payments from the decedent.
The appellee has argued, as she did in the court below, that since the United States filed a claim under the State law with the personal representative which was rejected both by the administratrix and by...
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DiSilvestro v. United States
...States, supra, 292 U.S. at 587, 54 S.Ct. 840; United States v. Gibson, 207 F.2d 161, 163 (9th Cir.1953), rev'd on other grounds, 225 F.2d 807 (9th Cir. 1955);6 Gongora v. United States, 183 F.Supp. 872, 873 (D.D.C.1960); United States v. Lawrence, 154 F.Supp. 454, 456-457 (D.Mont.1957); Uni......
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De Magno v. U.S., 79-1852
...debts by suit or offset unreviewable include United States v. Gibson, 207 F.2d 161, 163 (9th Cir. 1953), vacated on other grounds, 225 F.2d 807 (9th Cir. 1955); Gongora v. United States, 183 F.Supp. 872, 873 (D.D.C.1960) (Holtzoff, J., stating that the "finality provisions may be used as a ......
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United States v. Lawrence, Civ. A. No. 1853.
..."the Government has made sufficient proof of payment by mistake and that it was entitled to recover those payments from the decedent." 225 F.2d 807, 808. This would not, however, affect the court's conclusion that decisions of the Veterans' Administration are not conclusive when made the ba......