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July 20, 1989


Aubrey E. Robinson, Jr., Chief United States District Judge.

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


 On June 30, 1989, the government moved for reconsideration of Quiban v. Veterans' Administration, 713 F. Supp. 436 (D.D.C. 1989), and sought to vacate the summary judgments that had been granted in that case and in all other Filipino cases relying on Quiban. In addition, because the government needs to file its notice of appeal on or before July 11, it moved to expedite consideration of its motion for reconsideration. The motion to expedite was granted on July 3, 1989, and the motion for reconsideration therefore has been fully briefed.

 The principal thrust of the motion for reconsideration is that because the Court did not exclude matters outside the pleadings it was required to inform the government that it was treating the motion to dismiss as a motion for summary judgment and contemplating entering summary judgment for plaintiff; had it done so, the government would have submitted additional evidence, which either would establish the constitutionality of 38 U.S.C. § 107(a) or at least raise a genuine issue of material fact. Therefore, it requests that the order be vacated and the matter be set for cross-motions for summary judgment.

 The government's claim that it was unfairly surprised is without merit. But given the importance of the issue involved, the Court has considered the materials submitted by the government. The new evidence does not sustain the constitutionality of § 107(a) or raise an issue of material fact. Therefore, the motion for reconsideration has been denied. *fn1"


 Plaintiff is seeking survivors' benefits based on her husband's non-service-connected death. Section 107(a) precludes the Veterans' Administration from awarding such benefits. After the District Court dismissed her complaint on the basis of 38 U.S.C. § 211(a), which precludes judicial review of determinations made by the Veterans' Administration, the Court of Appeals remanded the case for "the district court to consider the constitutionality of § 211(a)'s [sic] exclusion of Philippine Army veterans from veterans' benefits for non-service-connected disabilities." Quiban v. Veterans Administration, 264 U.S. App. D.C. 57, [826 F.2d 129], No. 86-5685 slip op. at 1 (D.C. Cir. July 24, 1987).

 Following remand, the government moved to dismiss for failure to state a claim upon which relief could be granted, arguing that § 107(a) was constitutional. No exhibits were appended to the motion. The Court appointed Beveridge & Diamond to brief the issue on plaintiff's behalf. *fn2" In their Opposition brief, Beveridge & Diamond included copies of a U.S. Army Study and a Veterans' Administration interpretation of § 107 explaining that the statute does not apply to Old Philippine Scouts. The Opposition Brief also noted Beveridge & Diamond's belief that the matter was ripe for summary judgment, but because they were appearing only as amicus curiae they could not move for summary judgment on Plaintiff's behalf. Amicus Curiae's Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss at 2 n.3 (" Amicus considers plaintiff's case ripe for summary judgment, but due to the non-representational nature of its appearance in this matter, has refrained from filing such a motion and has instead limited its arguments to opposing the VA's motion to dismiss. The Court may, of course, grant summary judgment sua sponte. See, e.g., Kennedy v. Whitehurst, 509 F. Supp. 226, 232 (D.D.C. 1981) (when controlling legal issues have been fully briefed and no genuine issues of material fact remain, court may enter summary judgment sua sponte)", aff'd, 223 U.S. App. D.C. 228, 690 F.2d 951 (D.C. Cir. 1982))

 The government, in its Reply, did not object to the inclusion of such extraneous matters; indeed it relied on upon the very same U.S. Army Study that amicus, now plaintiff's counsel, submitted. Defendant's Reply to Memorandum of Amicus Curiae at 2-3. Moreover, it filed exhibits of its own, namely a copy of a Senate Report and a portion of recorded hearings held on a bill to provide for benefits to New Philippine Scouts ("Hearings"). Beveridge & Diamond, without objection from the government, was allowed to file a SurReply Brief, which included a fuller version of the Hearings submitted by the government. Almost four months after Beveridge & Diamond filed their SurReply, the Court heard oral argument on the motion to dismiss. At the hearing both sides referred to the legislative history and the U.S. Army Study. *fn3"

 The Court then held § 107(a) unconstitutional, and accordingly denied the motion to dismiss. Because the constitutionality of the statute was dispositive as to Plaintiff's claims for declaratory and injunctive relief, the Court sua sponte granted summary judgment for plaintiff on these claims, and remanded the complaint back to the Veterans' Administration to consider plaintiff's claim for survivors' benefits free from the exclusions imposed by § 107(a).

 Seven weeks after the Court declared § 107(a) unconstitutional, the Government filed the instant motion, which as noted above, argues that it did not submit evidence of the statute's constitutionality because it did not know that the Court was contemplating entering summary judgment for plaintiff. Briefing and consideration of the motion has been expedited so that the Court can decide it before the government files its notice of appeal, which must be filed by July 11, 1989.


 Rule 12(b) provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 F.R.C.P. 12(b). There is no question that the Court considered and did not exclude matters outside the pleadings. Therefore it was required to treat it as one for summary judgment, and give all parties a "reasonable opportunity to present all material made pertinent" to a summary judgment motion.

 The Court obviously treated the motion as one for summary judgment; it considered extra-pleading matter and granted summary judgment for plaintiff. *fn4" Thus the key is whether Defendant had a "reasonable opportunity" to present all pertinent material. This turns on whether it knew failure to present such material could result in judgment against it. Under the circumstances of this case, there can be little doubt that the government can and should be charged with such knowledge.

 The remand was for the specific purpose to litigate the constitutionality of § 107, which indisputably was the dispositive issue. Defendant could only prevail if the statute was constitutional; plaintiff could only prevail if it was not. Similarly, once the issue was determined there was nothing left to litigate: a determination of constitutionality would have inevitably led to dismissal of the complaint and judgment for defendant; a determination that the statute was unconstitutional could lead to no other result than a declaration to that effect and an injunction against application of the statute. *fn5" The Court having been directed to consider the constitutionality of § 107(a), and the government having moved to dismiss on the grounds that § 107(a) was constitutional, it is hard to see how the government could not realize the inevitable consequences of a determination that the statute was not constitutional.

 Although the government may have initially believed that the constitutional issue could be decided without reference to materials outside the pleadings, it was put on notice at the outset that extra-pleading materials would be considered; exhibits were appended to amicus curiae's opposition. When confronted with the exhibits, defendant did not move to strike as inappropriate; it addressed them, relied on them, and submitted extrinsic material in rebuttal. Defendant having addressed, relied upon, and submitted extrinsic material -- in effect treating its motion to dismiss as a motion for summary judgment -- cannot be said to have been denied a "reasonable opportunity to present all" pertinent material. See Hollis v. Department of Army, 272 U.S. App. D.C. 379, 856 F.2d 1541, 1544 (D.C. Cir. 1988); Wheeler v. Hurdman, 825 F.2d 257, 259-60 (10th Cir.), cert. denied, 484 U.S. 986, 108 S. Ct. 503, ...

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