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QUIZON v. UNITED STATES VA

May 12, 1989

LEONILA A. QUIZON, Plaintiff
v.
UNITED STATES VETERANS ADMINISTRATION, et al., Defendants



The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE:

 In this suit, plaintiff seeks various benefits from several federal agencies based on her alleged military service in the Philippines during World War II. Currently pending is defendants' motion to dismiss. The motion shall be granted with respect to claims for Social Security benefits, back-pay, and life insurance benefits; it shall be denied with respect to claims seeking other benefits administered by the Veterans' Administration. See Quiban v. Veterans Administration, 713 F. Supp. 436 (D.D.C. 1989).

 BACKGROUND

 The complaint, although signed by someone purporting to be counsel for plaintiff, has been treated as having been filed pro se. See Pospos v. Veterans Administration, No. 86-5494 (D.C. Cir. May 22, 1987). Therefore liberality has been extended in construing the nature of the claims and the relief requested. Plaintiff seeks Social Security benefits, veterans' benefits and military pay. The complaint has been construed to raise a constitutional challenge to 38 U.S.C. § 107(a), which limits the benefits available to members of organized military forces in the Philippines that were called into service by an Order of the President dated July 26, 1941. She never filed a claim with either the Social Security Administration or the Veterans' Administration.

 Although not entirely clear, it appears that plaintiff alleges service with a recognized guerilla force in the Philippines. She alleges that she served with the 91st Infantry Division under the command of Ruperto Kangleon, from about 1942 to September 31, 1945. Complaint at 1. Records indicate that a Colonel R.K. Kangeleon in the Philippine Army on Leyte commanded the 92nd Infantry Division in guerilla activities in the Philippines during the period of plaintiff's alleged service. U.S. Army Center for Military History, The Status of Members of Philippine Military Forces During World War II at 50 (June, 1973), reprinted in Amicus Curiae's Memorandum in Opposition as Exhibit 1. *fn1" The Court will proceed on that construction of the complaint. *fn2"

 DISCUSSION:

 Plaintiff's failure to present a claim to the Social Security Administration is fatal to her claim for Social Security benefits. See Pospos v. Veterans Administration, No. 86-5494, slip op. at 3 (D.C. Cir. May 22, 1987); 42 U.S.C. § 405(g)(1982). The constitutional defect of § 107(a) with respect to veterans' benefits does not affect her claim for Social Security benefits. See Quiban v. Veterans Administration, No. 86-5685, slip op. at 4 (D.C. Cir. Sept. 22, 1987); Pospos, slip op. at 3.

 Similarly, her claim for back-pay is unaffected by § 107(a), and must be dismissed as time-barred. See Pospos, slip op. at 5. Her claim for insurance benefits likewise is not affected by § 107(a). Therefore, her failure to exhaust administrative remedies precludes her claim in this Court at this time. See 38 U.S.C. § 784(a), (h) (district court has jurisdiction in event of disagreement as to a claim under USLGI or NSLI contract; disagreement defined as denial of claim, after consideration on the merits, by the Administrator of his designated employee). *fn3"

 As for other veterans' benefits, because an application for full veterans' benefits would have been futile in light of § 107(a), *fn4" there was no need for plaintiff to exhaust administrative remedies. The complaint will be construed as seeking a declaration that § 107(a) is unconstitutional and an injunction enjoining application of § 107(a) to her future administrative claim for benefits.

 Defendant's argument that § 107(a) rationally distinguishes between persons claiming status as a World War II veteran of the United States Armed Forces, has no more force with respect to members of guerilla units called into service than it does with respect to members of the Philippine Army. Guerilla units recognized and called into the service of the United States Armed Forces, pursuant to the President's Order of July 26, 1941, became units of the United States Armed Forces; their members therefore are World War II veterans of our Armed Forces. Therefore, members of recognized guerilla units called into service of the United States Armed Forces are entitled to veterans' benefits on the same basis as other World War II veterans. See Quiban v. Veterans Administration, 713 F. Supp. 436, slip op. at 31 (D.D.C. 1989).

 CONCLUSION:

 Plaintiff's claims for Social Security benefits and life insurance benefits shall be dismissed for failure to exhaust administrative remedies; her claims for back-pay shall be dismissed as time-barred. Section 107(a) unconstitutionally deprives members of recognized guerilla units called into service ...


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