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07/24/87 Domingo P. Quiban, v. Veterans Administration

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 24, 1987

DOMINGO P. QUIBAN, APPELLANT

v.

VETERANS ADMINISTRATION 1987.CDC.312 DATE FILED: JULY 24, 1987

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

ORDER

Upon consideration of Appellant's Application to Proceed In Forma Pauperis on appeal and our review of the record, and for the reasons stated in the accompanying memorandum, it is

ORDERED by the court that Appellant's Application to Proceed In Forma Pauperis be granted, and it is

FURTHER ORDERED by the court that the judgment of the district court be vacated and this case remanded for further proceedings consistent with the accompanying memorandum.

The Clerk is directed to withhold issuance of the mandate until seven days after disposition of any timely petition for rehearing.

PER CURIAM DECISION

MEMORANDUM

This case, though filed in the name of Domingo P. Quiban, et al. (Domingo served in the Philippine Army or a recognized guerrilla group during World War II) was actually filed by Domingo's widow, Felomina B. Vda de Quiban. The complaint alleges that Felomina was denied veterans' survivors' benefits because the Administrator of Veterans' Affairs (Administrator) determined that the bronchitis that killed Domingo was not service-connected. Philippine Army and guerrilla members and their survivors are only entitled to veterans' benefits for service-connected disabilities. 38 U.S.C. § 107(a) (1982).

The district court dismissed the complaint on the grounds that the court has no jurisdiction pursuant to 38 U.S.C. § 211(a) (1982), which bars judicial review of a decision of the Administrator under a law providing benefits to veterans or their survivors. However, the Supreme Court has recognized a difference between a challenge to the decision of the Administrator under a law providing benefits and a constitutional challenge to an Act of Congress denying benefits to a certain class. See Johnson v. Robison, 415 U.S. 361 (1974). The complaint in this case attacks the constitutionality of 38 U.S.C. § 107(a). Therefore, dismissal pursuant to § 211(a) was improper, and we remand for the district court to consider the constitutionality of § 211(a)'s exclusion of Philippine Army veterans from veterans' benefits for non-service-connected disabilities.

On July 26, 1941, President Roosevelt issued an Executive Order calling the existing military of the Philippine government into the armed forces of the United States, and placing that military under command of officers of the United States Army and Navy. After World War II, Congress undertook consideration of the question of entitlement of Philippine Army veterans to veterans' benefits based on their wartime service. The Director of the Veterans' Administration had expressed the view that Philippine Army veterans were entitled to veterans' benefits on the same basis as other veterans of the United States military. See Filipino American Veterans and Dependents Association v. United States, 391 F. Supp. 1314, 1318 (N.D. Cal. 1974) (three judge panel). However, Congress determined otherwise and limited Filipino eligibility to certain types of benefits. As now amended, the resulting statute provides:

Certain service deemed not to be active service

(a) Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated! or subsequently recognized by the Commander In Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except benefits under --

(1) contracts of National Service Life Insurance entered into before February 18, 1946;

(2) chapter 10 of title 37; and

(3) chapters 11, 13 (except section 412(a)), and 23 of this title.

38 U.S.C. § 107(a) (1982). On its face, the statute bars claims for such benefits as non-service-connected survivors' benefits.

In Johnson v. Robison, 415 U.S. 361 (1974), Robison had been classified as a I-0 conscientious objector for purposes of the Selective Service Act. In lieu of military service, he satisfactorily completed two years of alternative civilian service at a hospital.

When Robison applied for veterans' educational benefits provided by the Veterans' Readjustment Benefits Act of 1966, the Administrator denied his claim on the grounds that he had not served full time active duty in the armed forces and therefore was not an eligible veteran under a combination of several statutes. Robison filed an action alleging that the statutes violated religious freedom and denied equal protection of the law by denying benefits to a person who was required to serve, but unable by conscience to fight.

In response to the Administrator's argument that § 211(a) precludes review of the denial of benefits, the Court recognized that Robison's "constitutional challenge [was] not to any such decision of the Administrator, but rather to a decision of Congress. . . ." Id. at 367 (emphasis in original). Accordingly, the Court held that "§ 211(a) is inapplicable to [the] action." Id. at 366.

In this case, Quiban is in a position identical to that of Robison. The Administrator denied the claims for benefits on the basis of the limitations set forth in 38 U.S.C. § 107(a). However, this limitation was not a decision of the Administrator, but of Congress. Quiban challenges this decision on constitutional grounds. This constitutional claim was not considered by the district court.

We are aware that this court has already considered the constitutionality of 38 U.S.C. § 107(a) when that section acts to bar Social Security benefits based on military service during World War II. Congress enacted 42 U.S.C. § 417(a) (1982) to give World War II veterans a credit to be used in determining Social Security benefits. In Lagaton v. Secretary of Health, Education and Welfare, 481 F.2d 538 (D.C. Cir. 1973), we held that the Social Security Administrator properly denied benefits to the survivor of a Philippine Army veteran. In so doing, we found without merit the argument that the exclusion of veterans of the Philippine Army from this Social Security benefit was unconstitutional.

We note that 42 U.S.C. § 417(a) was enacted in 1950, four years after the Philippines achieved complete independence, while 38 U.S.C. § 107(a) was enacted before Philippine independence. Furthermore, the effect of 107(a) on § 417(a) serves only to prevent Philippine Army veterans from receiving a benefit to which they had never been considered entitled. The effect of § 107(a) on veterans' benefits was to deny benefits that the V.A. had considered Philippine Army veterans eligible to receive. The Lagaton court did not address the effect of 38 U.S.C. § 107(a) on veterans' benefits.

In Filipino American Veterans and Dependents Associates v. United States, 391 F. Supp. 1314 (N.D. Cal. 1974) (three judge panel), Philippine Army veterans brought suit seeking a declaration that 38 U.S.C. § 107(a) is unconstitutional. With one judge dissenting, the court found it to be constitutional. While entitled to due consideration, this opinion is not binding on the district court or this court.

We grant the Motion to Proceed In Forma Pauperis on appeal, vacate the dismissal, and remand this case to the district court for further proceedings consistent with this memorandum.

19870724

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