516 F2d 708 De Dampitan v. Administrator of Veterans Affairs

516 F.2d 708

170 U.S.App.D.C. 115

Mrs. Soledad A. Vda DE DAMPITAN

Nos. 24852 and 71-1038.

United States Court of Appeals, District of Columbia Circuit.

July 12, 1974.

Henry F. Lerch and Harold J. Nussbaum, Washington, D.C., were on the pleadings for appellees.

David V. Seaman, Washington, D.C., for appellant.

Before BAZELON, Chief Judge, and ROBINSON, Circuit Judge.


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These appeals are from judgments bestowing noncontractual veterans' benefits upon claimants and attorney's fees upon their counsel. The issue common to them all derives from the impact of the 1970 amendment of 38 U.S.C. Sec. 211(a),1 the statute governing judicial review of adjudications by the Administrator of Veterans' Affairs, on claims for noncontractual benefits asserted under the veterans' laws. Throughout its tenure in this court, this litigation has been studied and restudied in light of the precedents evolving on that score.


Initially, disposition of the appeals was held in abeyance for our de Rodulfa decision,2 wherein we held "that amended Section 211(a), properly construed, outlaws pending as well as future judicial reviews of the Administrator's determinations on claims for noncontractual benefits...."3 Only after our thoroughgoing consideration of the problem in de Rodulfa and the Supreme Court's denial of a petition for a writ of certiorari therein4 did we act to vacate the judgments in these cases and dismiss the appeals for want of jurisdiction. And the present petition for a rehearing of that action5 has been meticulously considered, not only in light of de Rodulfa, but also of Johnson6 and Hernandez7 recently decided by the Supreme Court and Daylo8 by this court.


We perceive nothing in the petition for rehearing or in these decisions which tends to impugn the correctness of our earlier disposition in the cases before us. Accordingly, we deny the petition. And detecting some misunderstanding in the petition of our ruling in de Rodulfa, we record these additional comments to underscore what we had thought was already clear.


De Rodulfa and its companion case were suits by surviving widows of World War II servicemen seeking reinstatement of wartime death compensation benefits which the Administrator had granted but later had discontinued. Each suit culminated in a judgment in the District Court directing resumption of compensation payments to the widows and deduction of attorneys' fees therefrom for their counsel. The Administrator appealed from the allocations of counsel fees, and Section 211(a) was amended while the appeals were under submission. We concluded that the amendment deprived the courts of power to review decisions of the Administrator on noncontractual claims, whether asserted in original applications or inspired by termination of previously granted benefits.9 We further concluded that amended Section 211(a) affected pending as well as future litigation undertaking such reviews,10 including the cases then on appeal,11 and consequently embraced the awards of counsel fees as non-final judgments.12 So it was that we vacated those awards and dismissed the appeals for lack of jurisdiction.13


Similarly, in the cases at bar, the District Court reversed the Administrator's discontinuance of payments of noncontractual veterans' benefits, entered judgments directing reinstatement of the terminated benefits, and allotted portions thereof as counsel fees. After the Administrator appealed, Section 211(a) was changed, whereupon the Administrator moved to remand the cases to the District Court. Deeming de Rodulfa controlling, we dismissed the appeals for want of jurisdiction and vacated the judgments without prejudice to any further administrative action which any appellee might seek.14


There is, of course, a difference--indeed, a great difference--between our action in de Rodulfa and here. Our disposition in de Rodulfa affected only so much of the monies awarded by the District Court's judgments as had been deducted and set aside as counsel fees.15 In the instant cases, however, the disposition annulled the judgments in toto--the amounts ordered paid to the claimants as well as those ordered paid to their attorneys. This variation in treatment is accounted for by the fact that in de Rodulfa the Administrator appealed, and thus rendered non-final, only the counsel-fee awards, whereas in these cases he appealed the judgments in full. The consequences of these events we now more fully explain.


In de Rodulfa, we took pains to point out that the Administrator "appealed--and thus brought before us--only so much of the judgments as awarded counsel fees, leaving all other provisions--those ordering payments to the claimants--as they were."16 In both his brief and his oral argument on appeal, the Administrator confined his attack to the allowance of attorneys' fees, and the appeal as submitted presented only that subject.17 And when, after submission, Section 211(a) was amended, the Administrator, in defining the problem occasioned by the amendment, conceded that the remaining portions of the judgments had not been brought to this court for review.18 Thus we emphasized that

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the judgments exclusive of the fee awards--that is, the portions directing payment of benefits to the widow-claimants--are beyond the purview of these appeals. Those portions are adjudications by the District Court that became final, because they were not appealed, before the change in Section 211(a) was forthcoming. Nothing we can do on the present appeals can affect them, and nothing we say now is intended to reflect upon them.19


In the cases now before us, however, the Administrator took another course of action--he appealed the questioned judgments in their entirety. In each instance, the Administrator's notice of appeal designated the judgment, without limitation to some part or parts thereof, as the subject of the intended appeal,20 leaving no room for argument that the appeal did not encompass the claimants' as well as the lawyers' portions of the judgment.21 Since, in every phase of their operation, the judgments have always resided within the purview of these appeals, in none of their aspects did the judgment ever become final. And since amended Section 211(a) intercepts all judgments to the extent that they remain non-final,22 we vacated them completely.


Petition denied.


Consolidated with:

De Sevilla (two cases), 24680, 24681; De Grospe (two cases), 24718, 24720;

De Bandolin (two cases), 24732, 71-1037; De Obrero, 24733; De Paulino, 24734;

De Perez, 24735; De Fayloga, 24757; De Catalan, 24758; De Gilizon, 24759; De Pareno, 24760; De Dela Jara, 24782; De Quibael, 24783; De Fresco v. U.S. (two cases), 24832, 71-1036;

De Trilles, 24833; De Merina, 24834; De Gacad (two cases), 24891, 71-1008;

De Respicio (two cases), 24892, 71-1005; De Tander (two cases), 24893, 71-1006;

De Peramo (two cases), 24894, 71-1004; De Cambronero (two cases), 24901, 24902;

De Anicete (two cases), 24903, 24904; De Ramos (two cases), 24905, 24906;

De Caasi (two cases), 24921, 24922; De Samera, 24923.


"Except as provided in Section 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans Administration providing benefits for veterans and their dependents or survivors 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 by an action in the nature of mandamus or otherwise." 38 U.S.C. Sec. 211(a) (1970)


De Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972)


Id. at 172, 461 F.2d at 1258


409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972)


Denominated herein a "motion for reconsideration." See Fed.R.App.P. 40


Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)


Hernandez v. Veterans' Administration, 415 U.S. 391, 94 S.Ct. 1177, 39 L.Ed.2d 412 (1974)


Daylo v. Administrator of Veterans' Affairs, 163 U.S.App.D.C. 251, 501 F.2d 811 (1974)


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 161-169, 461 F.2d at 1247-1255. See also Johnson v. Robison, supra note 6, 415 U.S. at 366-374, 94 S.Ct. at 1165-1169, 39 L.Ed.2d at 397-401; Daylo v. Administrator of Veterans' Affairs, supra note 8, 163 U.S.App.D.C. at 266, 501 F.2d at 816


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 161-164, 167-169, 461 F.2d at 1247-1250, 1253-1255. See, to the same effect, Daylo v. Administrator of Veterans' Affairs, supra note 8, 163 U.S.App.D.C. at 266, 501 F.2d at 816; Langston v. Johnson, 156 U.S.App.D.C. 5, 6, 478 F.2d 915, 916 (1973)


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 164-169, 461 F.2d at 1250-1255


Id. at 160-161, 164-169, 461 F.2d at 1246-1247, 1250-1255


Id. at 172, 461 F.2d at 1258


Since in our view amended Sec. 211(a) compelled that action, we saw no occasion to inquire whether any other statutory provision likewise did. Compare Daylo v. Administrator of Veterans' Affairs, supra note 8


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 160, 172, 461 F.2d at 1246, 1258. Compare Daylo v. Administrator of Veterans' Affairs, supra note 8, 163 U.S.App.D.C. at 268, 501 F.2d at 818


Id. at 160, 461 F.2d at 1246


Id. at 159, 461 F.2d at 1245


Id. at 160 & n. 29, 461 F.2d at 1246 & n. 29. The Administrator was clearly correct in that position. Donovan v. Esso Shipping Co., 259 F.2d 65, 68 (3d Cir.1958); Carter v. Powell, 104 F.2d 428, 431 (5th Cir.), cert. denied, 308 U.S. 611, 60 S.Ct. 173, 84 L.Ed. 511 (1939); Ruckman & Hansen, Inc. v. Contracting & Material Co., 328 F.2d 744, 749 (7th Cir.1964); Scaramucci v. Dresser Indus., Inc., 427 F.2d 1309, 1318 (10th Cir.1970). See also Gunther v. E.I. Du Pont De Nemours & Co., 255 F.2d 710, 717-718 (4th Cir.1958)


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 160, 461 F.2d at 1246 (footnote omitted). Similarly, in Daylo v. Administrator of Veterans' Affairs, supra note 8, the District Court ordered payment of certain wartime death compensation benefits within a 120-day period. During that period, and before the Administrator complied with the judgment, Sec. 211(a) was amended. However, the Administrator did not take an appeal from the judgment, and the time for doing so had expired before the amendment took effect. Daylo held that amended Sec. 211(a) does not disturb judgments which achieved finality prior to its effect date, and the unappealed judgment there involved, though unexecuted, had already become final


An appeal may be taken from a judgment either in its entirety or from some part or parts thereof. See Fed.R.App.P. 3(c); 9 Moore, Federal Practice, p 203.18 (2d ed. 1948)


See Fed.R.App.P. 3(c) & app. Form 1; 9 Moore, Federal Practice p 203.18 at 752 (2d ed. 1948)


De Rodulfa v. United States, supra note 2, 149 U.S.App.D.C. at 164-169, 461 F.2d at 1250-1255