UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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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.
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 ...