Oral Argument on Filvets Case Set

By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

CHICAGO (jGLi) – Do the Filipino World War II veterans have the right to question the constitutionality of the American Recovery and Reinvestment Act (ARRA) of 2009 when they failed to receive their $15,000 lump sum benefits because their names are not in the “Missouri List”?
This question is one of the issues up before Judge Saundra B. Armstrong of the United States District Court of the Northern District of California in Oakland on Tuesday, April 26, when she holds an oral argument on the motion to dismiss the declaratory, injunctive and mandamus filed by seven Filipino WW II veterans and 22 widows against the U.S. Department of Veterans Affairs.

The complaining veterans, now all U.S. citizens, want the court to order the U.S Veterans Affairs to process their claims based on alternative sources as their “names do not appear in the National Personnel Center (NPRC)” in St. Louis, Missouri.

They argue the “NPRC records are notoriously incomplete because of the exigencies of World War II and the fire that destroyed many of the records covering the period of the service of Filipino War Veterans, and the practical effect of requiring that service be established solely through the NPRC records is to deprive” them “of any means to prove their service and to limit eligibility exclusively to those named in the NPRC records.”

Aside from “Missouri List,” there have been other lists of Filipino veterans. Among them is a list found in Camp Aguinaldo, headquarters of the Armed Forces of the Philippines. But this list is not given credence by the U.S. V.A., which processes all U.S. veterans’ claims.

Another issue that will be resolved is whether the U.S. Court of Appeals for Veterans Claims bars the U.S. District Court from assuming jurisdiction over the case.

Tony West, Assistant Attorney General of the U.S. Department of Justice’s Civil Division Federal Programs in Washington, D.C., said the U.S. District Court should dismiss the case for lack of jurisdiction. West argues that the complaining veterans should have filed successively the case instead before U.S. Court of Appeals for Veterans Claims (CAVC), created by U.S. Congress under the Veterans’ Judicial Review Act, the Federal Circuit, and the Supreme Court.

A U.S. District is a creation of the U.S. Constitution called “Art. III” courts while a U.S. Court of Appeals for Veterans Claims is called “Art. 1” or legislative court created by U.S. Congress.

Complainants’ pro-bono lawyers Arnedo S. Valera and Eleuterio C. Tomas, however, cited the decision of the U.S. Supreme Court in Johnson v. Robinson (1974) that a U.S. District court may entertain questions of constitutionality of a statute before it as do the Filipino veterans, who asked “for a declaration of their rights” under ARRA’s due process and equal protection clauses of the constitution.

Another issue is whether the veterans’ claim is barred by sovereign immunity when their claims were denied by the VA’s regional offices and when VA denied the claims of widows of war veterans, who died before the passage of the ARRA.

According to the complainants when the VA denied their benefits because they were not in the Missouri List, the “VA’s reliance on NPRC records, which plaintiffs allege are incomplete and unreliable, violates plaintiffs’ due process rights.”

Plaintiffs Eder Andrade, Bienvenido Galas, Sr., Ricardo Pinero Juanita Quimbo, Ireneo Recinto, Florentino S. Torralba, and John M. Aspiras, Jr. filed the case after their applications for benefits were denied because their names were not found in the NPRC.
Under the ARRA, Filipino veterans, who became US citizens, may each receive a lump sum pay of $15,000 for their war services while non-U.S. citizens get $9,000 each.
The complainants argue that the disparity in the payment of the Filipino soldiers “violates the equal protection clause” of the U.S. Constitution.
The veterans’ widows also assert that there is “no rational basis for distinction between surviving spouses of persons who died after filing a claim and surviving spouses of persons who did not file a claim before their death.”
The U.S. government claims that ARRA did not repeal the Rescission Act of 1946, saying, “a statute that is not repealed does not become unconstitutional merely because another statute has taken effect,” citing Morton v. Mancari (1974).
This complaint filed by seven veterans followed the filing of a similar case now pending in the same courtroom. Three other plaintiffs Romeo R. De Fernandez, Ciriaco C. de la Cruz, Valeriano C. Marcelino and the Veterans Equity Center, earlier filed a class action suit against VA and several VA employes now pending before Judge Armstrong. The case was filed by Attorneys Lourdes S. Tancinco, Pete McCloskey and Stuart G. Gross, all based in San Francisco, California.
The plaintiffs alleged the FVEC (Filipino Veterans Equity Compensation), part of the ARRA, violated their “rights to due process and to petition for redress of grievances.”  A motion to dismiss is pending. (lariosa_jos@sbcglobal.net)