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May 12, 1989


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


 This suit has been brought by the wife of a deceased veteran of the Philippine Army who served in the American Armed Forces during World War II; it seeks veterans' survivors' benefits based on her husband's death. Currently pending is defendant's motion to dismiss for failure to state a claim upon which relief may be granted. The dispositive issue is whether 38 U.S.C. § 107(a), which limits the veterans' benefits available to veterans of the Philippine Army and their spouses, is constitutional. Because the Court concludes that § 107(a) is unconstitutional, defendant's motion will be denied; summary judgment will be entered for plaintiff. *fn1"


 a) Procedural History :

 Plaintiff, as the widow of a deceased Philippine Army veteran who served with American forces during World War II pursuant to a military order issued by President Roosevelt, sought veterans' survivors' benefits from the Administrator of Veterans Affairs ("Administrator"). The Administrator, however, denied her application for benefits after concluding that her husband's death was not service-connected. The Administrator's action was mandated by 38 U.S.C. § 107(a), which limits the veterans' benefits available to Philippine Army veterans who served with the U.S. Army in World War II; their benefits are limited to enumerated service-connected death and disability benefits. 38 U.S.C. § 107(a). *fn2"

 Plaintiff then brought suit in this Court. After granting plaintiff leave to proceed in forma pauperis, the Court sua sponte dismissed the complaint on jurisdictional grounds. The Court of Appeals for the District of Columbia Circuit, however, vacated the dismissal and remanded the case for consideration of the constitutionality of § 107(a)'s exclusion of Philippine Army veterans from veterans' benefits for non-service-connected disabilities. Quiban v. Veterans Administration, No. 86-5685 (D.C. Cir. September 22, 1987). See generally Johnson v. Robison, 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974) (court may consider constitutional challenge to Act of Congress denying benefits to a certain class even though it may not consider challenge to the decision of the Administrator under a law providing benefits).

 Following remand, the government moved to dismiss for failure to state a claim. The Court attempted to appoint Beveridge & Diamond as counsel, but they have been unable to obtain signed authorization from plaintiff. Therefore, they have briefed and argued the issue as amicus curiae.3 Oral argument on defendant's motion was held on March 16, 1989.

 b) The Relationship Between the Philippines and the United States :

 The United States acquired the Philippine Islands as a result of the Spanish-American War of 1898. *fn4" In 1902 Congress established a civil government in the Philippines; the civil government's powers were restricted by a "bill of rights" analogous to our own. *fn5" The Philippines, however, were never, nor ever intended to be, incorporated into the United States; from acquisition to grant of independence the Philippines remained an unincorporated territory of the United States.

  In 1916 Congress expressed its intention to grant the Philippines full independence at the proper time. *fn6" By enactment of the Philippine Independence Act in 1934, Congress declared that full independence would be granted within ten (10) years. *fn7" World War II intervened and delayed that plan, but full independence was granted on July 4, 1946. *fn8"

 c) The Relationship Between the Armed Forces of the United States and the Philippines Army :

 From the very beginning of United States control over the Philippines, the United States maintained a military presence there consisting of Filipino natives. By Act of February 2, 1901, ch. 192, § 36, 31 Stat. 748, 757, the President was authorized to enlist native Filipinos for service in the Army. The authorization was for twelve thousand men; these personnel were called Philippine Scouts, and are also referred to as Old Philippine Scouts. For sake of convenience, this opinion will refer to them as Old Philippine Scouts.

 Old Philippine Scouts are considered veterans of the United States Armed Forces and are entitled to full veterans' benefits on the same basis as any other veteran. They are not subject to the limitations of § 107. During World War II, Old Philippine Scouts were not paid as much as other members of the United States Army; *fn9" when the Philippine Army was first called into service by President Roosevelt in 1941, Old Philippine Scouts were paid more than members of the Philippine Army, but the rates of pay were equalized during the war. *fn10"

 In 1935, after passage of the Philippines Independence Act providing for eventual Philippine independence, formation of the Philippine Army was begun; it was to consist of Filipino natives, naturally, with the President of the Philippine Commonwealth as the Commander-in-Chief. *fn11"

 On July 26, 1941, President Roosevelt issued a military order calling members of these forces into the service of the United States Army. The President's Order stated, in relevant part:

As Commander-in-Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the United States for the period of the existing emergency, and place under the command of a General Officer, United States Army, . . . all of the organized military forces of the Government of the Commonwealth of the Philippines. . . .

 6 Fed. Reg. 3825 (July 26, 1941), quoted in Second Supplemental Surplus Appropriation Rescission Bill, 1946: Hearings on H.R. 5604 Before the Subcommittee of the Senate Committee on Appropriations, 79th Cong., 2d Sess. 56 (1946), reprinted in Amicus Curiae's SurReply Brief as Exhibit 1.

 The President's authority to take such action was contained in the Philippines Independence Act of 1934, which specifically reserved to the United States the right "to call into the service of [the United States] armed forces all military forces organized by the Philippine government." *fn12" Following the President's Order, the United States assumed responsibility for pay and supplies for the Philippine Army, once the units were inducted into service. *fn13" It is specifically those Filipinos who were called into service pursuant to this Order who have their benefits limited by § 107(a).

 As noted above, shortly after the Philippine Army was called into service of the United States the rates of pay for members of the Philippine Army were raised to the level of pay accorded to members of the Old Philippine Scouts. Although defendant contends that it was intended that the Philippine Army maintain its distinct, uniquely Philippine character, it concedes that after the Philippine Army was called into service of the United States Army de facto command and control were passed to United States Army personnel. Defendants' Motion to Dismiss at Appendix 3, Quizon v. Veterans' Administration, No. 87-2836 (D.D.C. motion filed Dec. 21, 1987). Moreover, by the Order's plain terms, command was passed to a "general officer, United States Army."

 After hostilities ceased, Congress passed the Armed Forces Voluntary Recruitment Act of 1945. Section 14 of this Act authorized the Secretary of War, "with the approval of the Philippine Government," to raise a new contingent of "Philippine Scouts" for service throughout the Far East. Since these new recruits would become Philippine Scouts shortly before independence was to be granted to the Philippines, it was intended that these "New Philippine Scouts" would be a trained body of men whom the Philippine Government could incorporate into their own Army, which ...

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