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PORFERIO NARISMA v. UNITED STATES

May 10, 1990

PORFERIO NARISMA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant


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


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

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

 This case presents the question, unaddressed by the Court's earlier decisions in similar so-called Filipino cases, *fn1" whether title 38 of the United States Code, section 107(b) *fn2" comports with the Fifth Amendment to the Constitution. The provision excludes all but certain life insurance and service-related disability and death benefits for Filipino citizens who enlisted in the "New Philippine Scouts" pursuant to the Armed Forces Recruitment Act of 1945. *fn3"

 Defendant Veterans' Administration (hereinafter "the VA") has moved to dismiss, and has offered a Memorandum addressing the constitutionality of section 107(b). Amicus curiae4 has responded at length to the latter. Defendant's motion will be granted with respect to claims for Social Security and life insurance benefits, and for back-pay. It will be denied with respect to claims seeking other benefits administered by the VA.

 The VA offers various reasons why the limitations of section 107(b) are distinguishable from those in section 107(a). By its terms, section 107(a) limited benefits for regular Philippine Army veterans of World War II. Last year this Court held that the provision violated the Fifth Amendment's equal protection component. See Quiban v. United States Veterans' Admin., 713 F. Supp. 436 (D.D.C. 1989).

 The Court disagrees with the VA that the holding in Quiban can be distinguished on the facts and circumstances behind the creation of the New Philippine Scouts; the VA has not advanced a rational basis for withholding certain benefits from New Philippine Scouts while providing those benefits to other similarly situated U.S. armed forces veterans. Consequently, the Court holds, as it did with respect to section 107(a), that section 107(b) violates the Fifth Amendment of the Constitution.

 I. BACKGROUND

 As is the case with many similar complaints Plaintiff's pleading is signed by "Francisco M. Havana" as counsel. Mr. Havana is not a member of this Court's bar, and the pleadings bearing his name offer little assistance to the Court in these matters. The Court will treat Plaintiff's case as though filed pro se and construe the allegations of the complaint with due liberality. See Pospos v. United States Veterans' Administration, No. 86-5494, slip op. at 1-2 (D.C. Cir. May 22, 1987).

 Liberally construed, plaintiff seeks military pay or allowances, social security and veterans' benefits, including insurance payments, for his service in the Philippine armed forces during World War II. *fn5" He alleges service in two separate services; first as a private in the "National Volunteers of the Philippines" from some date prior to December, 1941 through May, 1942. As discussed below, any veterans' benefits due plaintiff because of this service are governed by the Court's decisions in Quiban v. United States Veterans' Admin., 713 F. Supp. 436 (D.D.C. 1989) or Quizon v. United States Veterans' Admin., 713 F. Supp. 449 (D.D.C. 1989).

 Plaintiff also alleges service for two years and ten months as a private in the New Philippine Scouts, having enlisted on May 13, 1946, and received an honorable discharge on February 13, 1949. It appears then, that plaintiff's later service was pursuant to section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (hereinafter " the Recruitment Act"). *fn6" The Recruitment Act authorized the Secretary of War of the United States to enlist 50,000 Filipino citizens for service in the Philippine Scouts. The enlistments were fixed at three years, unless sooner terminated.

 The Recruitment Act, however, was not limited to raising troops in the Philippines. It was designed to facilitate recruitment in the regular United States armed forces as a whole. Section 3 of the Recruitment Act authorized and directed the Secretary of War to accept original enlistments and reenlistments in the regular armed forces for periods of 18 months, two years or three years, at the option of the enlistee. See Recruitment Act § 3, 59 Stat. 538, 538.

 Significantly, with respect to veterans' benefits, the Recruitment Act amended various sections of the Servicemen's Readjustment Act of 1944 to provide that World War II "shall not be considered as terminating, in the case of any individual, before the termination of such individuals first period of enlistment or reenlistment contracted within one year after the date of the enactment of the [Recruitment Act]." Recruitment Act § 11, 59 Stat. at 542. *fn7"

 II. DISCUSSION

 A. Social Security, Military Pay, and Insurance Benefits

 Plaintiff here presents several claims similar to those the Court considered in Quizon, which do not turn on the application of section 107. For example, to be successful in obtaining Social Security benefits, a plaintiff must have presented a claim to the Social Security Administration. Plaintiff here has not done so, and his claim is barred by a failure to exhaust administrative remedies. Plaintiff's insurance claims are also presently barred by the exhaustion doctrine, there being no evidence that plaintiff ever pursued the matter before the Veterans' Administration. He may do so on the remand to the agency ordered below. See generally Quizon ...


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