By JOSEPH G. LARIOSA

(© Journal Group Link International)

The recognition of being in “active military service” is “limited” and “does not constitute a general recognition for any purpose;” and does not entitle "Filipino war veterans to the same benefits as United States veterans.”

C HICAGO (jGLi) – A challenge to the constitutionality of the American Recovery and Reinvestment Act (ARRA) of 2009 fell flat last week when the Judge Saundra Brown Armstrong of the United States District Court for the Northern District of Californian in Oakland dismissed for lack of jurisdiction the complaints of seven Filipino World War II veterans and 22 widows who filed a class action for declaratory, injunctive and mandamus.

In an order April 28 granting the motion to dismiss filed by defendant U.S. Veterans Affairs Secretary Erik K. Shinseki and his deputy secretary, W. Scott Gould, Judge Brown Armstrong said, “Because amendment to the Complaint would be futile, the claims alleged are dismissed without leave to amend. The Clerk shall close the file and terminate any pending matters.”

The ruling was a blow to the Filipino veterans, who were asking the court to order the VA to accept alternative roster other than the “Missouri List” so they can also receive the lump sum pay of $15,000 for U.S. citizens and $9,000 for non-U.S. citizens.

They argue that their names do not appear in the list kept in the National Personnel Center (NPRC) in St. Louis, Missouri after a fire destroyed many records covering the period of the service of Filipino War Veterans.

Although the U.S. Court can entertain cases that “challenge the constitutionality of an Act of Congress,” the order said, the complaining Filipino soldiers “are not alleging that the FVEC (Filipino Veterans Equity Compensation) or the 2009 ARRA in general is unconstitutional.”

“Rather, they are complaining that the VA’s denial of their claim for benefits is improper because the VA relies on allegedly unreliable military records as a means of determining whether a claimant qualifies for benefits under FVEC.”

It said ascertaining the reliability of NPRC records and the reasonableness of the VA in using such records involves “questions of law or fact concerning a benefit provided by a law administered by the Veterans Administration.”

FILVETS SHOULD HAVE FILED CASE BEFORE VA

T he complaint should have been filed before the VA Secretary, whose decision as to “any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or service.”

The ruling of the VA Secretary can be appealed before the U.S. Court of Appeals for Veterans Claims, not before the U.S. District Court.

While the Administrative Procedures Act allows “limited waiver of sovereign immunity for certain agency actions,” like VA’s, relief can only be granted if “there’s no other adequate remedy in a court.”

As to the second claim alleging that barring widows of Filipino war veterans who died prior to the passage of the FVEC (or ARRA) from receiving payment constituting denial of equal protection, the order said that the plaintiffs “must show that the defendants acted with an intent or purpose to discriminate against” the plaintiffs.

It said the ARRA was passed because Congress wanted “to stimulate the economy and create jobs.”

As to the plaintiffs’ violations of equal protection clause by granting eligible U.S. citizens $15,000 lump sum while giving non-U.S. citizens $9,000, the court said the plaintiffs “lack standing to bring such a claim.” The plaintiffs need “irreducible constitutional minimum of an injury-in-fact” to file a claim.”

The recognition of the veterans as “active military service” is “limited” and “does not constitute a general recognition for any purpose.” It does not entitle "Filipino war veterans to the same benefits as United States veterans.”

Tony West, Assistant Attorney General of the U.S. Department of Justice’s Civil Division Federal Programs in Washington, D.C., represented the VA while pro-bono lawyers Arnedo S. Valera and Eleuterio C. Tomas, represented the Filipino veterans.

M eanwhile, the first related complaint filed by Romeo De Fernandez, Ciriaco C. de la Cruz, Valeriano C. Marcelino and the Veterans Equity Center is pending resolution by Judge Brown Armstrong. They are represented 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. # # #

Editor’s Note: To contact the author, please e-mail him at:  (lariosa_jos@sbcglobal.net)