The opinion of the court was delivered by: Mercer, District Judge.
Plaintiff brings this action under the Servicemen's Indemnity
Act of 1951, as amended, 38 U.S.C.A. § 851 et seq. Plaintiff
alleges that her son Jackie Dean Allen, entered the active
military service of the United States on May 23, 1951 and that at
the time of his death on December 22, 1952 he was a member of the
Armed Forces of the United States. She alleges that her son
executed and filed with the proper authorities, a written
designation of beneficiary naming plaintiff as his beneficiary of
the insurance provided by such Servicemen's Indemnity Act of
1951. She further alleges that she filed a claim with the
Veterans Administration of the United States for the principal
amount of insurance but that the claim was denied. Plaintiff
prays judgment against the defendant, the United States of
America, declaring her to be entitled to the benefits under said
insurance. The defendant, Doris Allen is the wife of the deceased
serviceman and has received certain payments as surviving widow,
in accordance with the ruling of the Veterans Administration.
Both defendants have filed motions to dismiss on the grounds
that the complaint does not state a cause of action; that the
action is an action against the United States of America which
has not waived its immunity or consented to be sued. That no
federal question is involved and that the action is based on
Servicemen's Indemnity Act of 1951, entitled, "An Act to
authorize the payment by the Administrator of Veterans' Affairs
of a gratuitous indemnity," and that there is no provision in
said Act authorizing suits against the United States of America.
Oral arguments having been made by the respective parties under
the rules of this Court, the motion is now before the Court for
The plaintiff contends that the indemnity provided by the Act
is not a gratuity as contended by defendant but is a "contract of
insurance" within the meaning of 38 U.S.C.A. § 445. The
defendants contend, in support of the ground for the motion, that
there is no authority under the Act for a suit against them to
recover the indemnity provided by the Act and that the indemnity
provided under the Act is a gratuity for which Congress has not
seen fit to waive the sovereign's immunity from suit and that
jurisdiction is lacking to entertain such a suit.
The Indemnity Act of 1951 provides, among other things, that on
and after June 27, 1950, any person in the active service of the
Army, Navy, Air Force, Marine Corps, etc., shall be automatically
insured by the United States, without cost to such person,
against death in such service in the principal amount of $10,000.
There is no express authority under the Act to bring a suit
against the United States to recover the indemnity provided by
The principle is well settled that the United States may not be
sued without its consent and then only in the manner and to the
extent specified in the Act of Congress authorizing a waiver of
the sovereign immunity from suit.
Chief Justice Taft in Eastern Transport Co. v. United States,
272 U.S. 675, at page 686, 47 S.Ct. 289, at page 291, 71 L.Ed.
472, enunciated this principle and stated as follows:
"The sovereignty of the United States raises a
presumption against its suability unless it is
clearly shown; nor should a court enlarge its
liability to suit conferred beyond what the language
Policies of War Risk Insurance are contracts of the United
States, while pensions, compensation allowances and privileges
are gratuities; they involve no agreement of parties and the
grant of them create no vested right. The benefits conferred by
gratuities may be withdrawn at any time within the discretion of
Congress. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78
It is further to be observed that the provisions of Section
1346, Title 28 U.S.C. which are a part of the statutes commonly
referred to as the "Tucker Act", do not lend any support to the
contention of plaintiff that the Court is vested with
jurisdiction to entertain the present action, for while said law
confers original jurisdiction on District Courts of the United
States, concurrent with the Court of Claims, of certain types of
civil actions and claims against the United States founded upon
an Act of Congress, it specifically denies jurisdiction of the
District Court of the United States in any civil action or claim
for a pension.
Plaintiff contends that the indemnity is not a pension and for
that reason is not within the exception denying jurisdiction
under Section 1346; however, in the opinion of this Court the
indemnity is a gratuity possessing every essential characteristic
of a pension and so far as jurisdiction of the Court is
concerned, is to be regarded as included in the word "pension".
Moreover, statutes surrendering sovereign immunity to suit are
strictly construed against the grant of jurisdiction and one who
asserts jurisdiction of his claim must make a clear showing that
it is within the terms of the grant. Furthermore, in this
connection, attention is directed to the case of Brewer v. United
States, D.C., 117 F. Supp. 842, 844, where the Court, after
quoting the provisions of Title 38, said: "The Servicemen's
Indemnity Act of 1951 is an Act `administered by the Veterans'
Administration.' Judicial review of decisions of the
Administrator is prohibited, except as to disagreements relative
to claims arising under contract, premium-paying insurance. It is
not insisted that the claim here arose from contract. It is, in
fact, a Congressional gratuity."
This Court is without jurisdiction to review the decision of
the Administrator of Veterans Affairs or to grant the relief
prayed for. United States v. Houston, 6 Cir., 216 F.2d 440,
approving Brewer v. United States, D.C. Tenn., 117 F. Supp. 842;
Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207.
The motion of the defendant, United States of America, and the
motion of the defendant, Doris Allen, to dismiss the complaint,
are sustained and the complaint is dismissed at plaintiff's cost.
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