126 U.S.App.D.C. 415, 418-420, 379 F.2d 469, 472-474 (1967). De Sinlao v. United States, supra note 3; Hahn v. Gray, 92 U.S.App.D.C. 188, 203 F.2d 625 (1953); Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207, cert. denied, 314 U.S. 689, 62 S.Ct. 360, 86 L.Ed. 55 (1941). 126 U.S.App.D.C. at 419, 379 F.2d at 473.
. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959); Cook v. Higley, 99 U.S.App.D.C. 180, 238 F.2d 41 (1956); Magnus v. United States, 234 F.2d 673 (7th Cir. 1956), cert. denied, 352 U.S. 1006, 77 S. Ct. 569, 1 L.Ed.2d 551 (1957); Longernecker v. Higley, 97 U.S.App.D.C. 144, 229 F.2d 27 (1955); Di Silvestro v. United States Veterans' Administration, 228 F.2d 516 (2nd. Cir. 1956), cert. denied, 350 U.S. 1009, 76 S.Ct. 654, 100 L.Ed. 870 (1955); Cyrus v. United States, 226 F.2d 416 (1st Cir. 1955); Brasier v. United States, 223 F.2d 762 (8th Cir. 1955), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955); United States v. Houston, 216 F.2d 440 (6th Cir. 1954); Hahn v. Gray, 92 U.S. App.D.C. 188, 203 F.2d 625 (1953); United States ex rel. Farmer v. Thompson, 203 F.2d 947 (4th Cir. 1953), cert. denied, 352 U.S. 973, 77 S.Ct. 366, 1 L. Ed.2d 326 (1957); Commers v. United States, 159 F.2d 248 (9th Cir. 1947), cert. denied, 331 U.S. 807, 67 S.Ct. 1189, 91 L.Ed. 1828 (1946); Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207 (1941); Peyton v. United States, 100 F. Supp. 823, 120 Ct.Cl. 722 (1951), cert. denied, 343 U.S. 909, 72 S.Ct. 639, 96 L.Ed. 1326 (1951). In Acker, supra, 226 F.2d page 578, this court said "it [must be] borne in mind that, as so well and clearly pointed out in Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, the United States may not be sued without its consent and that such consent must be expressed and not implied * * *."
See United States v. Houston, 6 Cir., 216 F.2d 440, approving Brewer v. United States, D.C.Tenn., 117 F. Supp. 842. See also Van Horne v. Hines [ 74 App.D.C. 214], 122 F.2d 207. "The motion of the defendant, United States of America to dismiss the complaint is sustained and the complaint is dismissed at plaintiff's costs."
This being so, such benefits may be withdrawn at any time in the discretion of Congress. Lynch v. United States, 1934, 292 U.S. 571, 577, 54 S.Ct. 840, 78 L.Ed. 1434; Van Horne v. Hines, 1941, 74 App.D.C. 214, 122 F.2d 207, 209; Smith v. United States, 8 Cir., 1936, 83 F.2d 631, 639. Also, Congress may withdraw from the courts jurisdiction over the Administrator with respect to such benefits.
A historical reason for upholding the section 211(a) ban on judicial review with regard to the former was that as the benefits were "gratuitous," a gift from the Government, the Government could establish any procedures โ or lack of procedures โ it pleased with respect to them. See Van Horne v. Hines, 122 F.2d 207 (D.C. Cir.), cert. denied, 314 U.S. 689, 62 S.Ct. 360, 86 L.Ed. 552 (1969). The validity of this analysis today is questionable, as the gratuity/right distinction has been abandoned in due process analysis.
The facts that this suit assumes the posture of constitutional attack, and that it seeks damages rather than remand, do not remove the case from the pall of ยง 211(a). See Ross v. United States, 462 F.2d 618 (9 Cir. 1972) (civil damage suit asserting denial of due process barred by ยง 211(a)); Milliken v. Gleason, 332 F.2d 122 (1 Cir. 1964) ( ยง 211(a) bars suit alleging deprivation of constitutional and civil rights by illegal seizure and use of evidence and by inadequate administrative hearing procedures); Barefield v. Byrd, 320 F.2d 455 (5 Cir. 1963) ( ยง 211(a) removes jurisdiction from action claiming denial of opportunity to examine evidence and to face adverse witnesses); Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207 (1941) (claim of no notice or opportunity to be heard barred by predecessor of ยง 211(a)). Accordingly, we hold that ยง 211(a) precludes our courts from assuming jurisdiction over this case.
Regardless of what the rule may be elsewhere, we adopt for this Circuit the holding of the Wellman case as to the meaning of ยง 211(a). We reach this conclusion despite the fact that Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207 (1941); Hahn v. Gray, 92 U.S.App. D.C. 188, 203 F.2d 625 (1953); and Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959), appear to be to the contrary. To the extent that these cases conflict with the Wellman holding as to the meaning of ยง 211(a), they are expressly overruled.
The payments sought were gratuities, and Congress "in its wisdom" has defined where the right of appeal stops when such gratuities are denied to a citizen. Milliken v. Gleason, 332 F.2d 122 (1st Cir.), cert. den. 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1964); Barefield v. Byrd, 320 F.2d 455 (5th Cir.), cert. den. 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed. 2d 624 (1963); Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959); Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207, cert. den. 314 U.S. 689, 62 S.Ct. 360, 86 L.Ed. 552 (1941); Napier v. Veterans Adm., 187 F. Supp. 723 (D.N.J. 1960), affirmed, 298 F.2d 445 (3d Cir.), cert. den. 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed.2d 228 (1962).
Moreover, veterans' benefits are gratuities and establish no vested rights in the recipients so that they may be withdrawn by Congress at any time and under such conditions as Congress may impose. We affirm on Van Horne v. Hines, 74 App.D.C. 214, 122 F.2d 207, cert. denied, 314 U.S. 689, 62 S.Ct. 360, 86 L.Ed. 552 (1941); Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959) and Barefield v. Byrd, 320 F.2d 455 (C.A.5, 1963), cert. denied, 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed.2d 624 (1964), and cases cited. Wellman v. Whittier, 104 U.S.App.D.C. 6, 259 F.2d 163 (1958), on which the appellant relies, is quite different in its facts and is readily distinguishable.
" Calderon v. Tobin, 1951, 88 U.S.App.D.C. 134, 187 F.2d 514, 516, certiorari denied 341 U.S. 935, 71 S.Ct. 854, 95 L.Ed. 1363, rehearing denied 342 U.S. 843, 72 S.Ct. 22, 96 L.Ed. 637. See also Van Horne v. Hines, 1941, 74 App. D.C. 214, 122 F.2d 207. Congress has provided claimants under government insurance contracts with redress to the courts upon administrative denial of their claims. However, waivers of sovereign immunity from suit are to be strictly construed.