Quiban v. Veterans Admin.

• Decision Date: 18 July 1991
• Docket Number: Nos. 89-5250,89-5251,89-5263 and 90-5193,s. 89-5250
• Citation: 928 F.2d 1154
• Parties: Felomina QUIBAN v. VETERANS ADMINISTRATION, Appellant. Leonila A. QUIZON v. VETERANS ADMINISTRATION, Appellant. Porferio NARISMA v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1154

928 F.2d 1154

289 U.S.App.D.C. 62

Felomina QUIBAN v. VETERANS ADMINISTRATION, Appellant.

Leonila A. QUIZON v. VETERANS ADMINISTRATION, Appellant.

Porferio NARISMA v. UNITED STATES of America, Appellant.

Nos. 89-5250, 89-5251, 89-5263 and 90-5193.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 14, 1991.

Decided March 29, 1991.

As Amended March 29, 1991.

Rehearing Denied July 18, 1991.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 86-01372, 86-02155, and 87-02836).

Alfred Mollin, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., William Kanter, Atty., Dept. of Justice, and Raoul L. Carroll, Gen. Counsel, Dept. of Veterans Affairs, were on the brief, for appellant, Veterans Admin.

Kenneth S. Kaufman, with whom Albert J. Beveridge, III, was on the brief, for amicus curiae, Veterans Federation of the Philippines, urging affirmance.

Before RUTH BADER GINSBURG, D. H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Just before the beginning of World War II, President Roosevelt invoked his power under the Philippine Independence Act, Pub.L. No. 73-127, Sec. 2(a)(12), 48 Stat. 456, 457 (1934), to call various Philippine military organizations "into the service of American armed forces." 6 Fed.Reg. 3825 (1941). The first ¹ and second ² Supplemental Surplus Appropriation Rescission Act of 1946 provided, however, that service by such Philippine organizations "shall not be deemed to have been active military, naval, or air service" for purposes of diverse veterans benefit programs. See 38 U.S.C. Sec. 107 (1988). As a result, most Philippine veterans of World War II are statutorily ineligible for several United States veterans benefits. See 38 U.S.C. Sec. 101(2) (defining "veteran" as a person "who served in the active military, naval, or air service").

Two Philippine World War II veterans and one surviving spouse of such a veteran, all residents of the Philippines, filed complaints in our district court, challenging their exclusion from certain veterans benefits as contrary to the Fifth Amendment's guarantee of equal protection. ³ The district court granted summary judgment for the challengers on their constitutional claims. See Quiban v. United States Veterans Admin., 713 F.Supp. 436 (D.D.C.1989); Quizon v. United States Veterans Admin., 713 F.Supp. 449 (D.D.C.1989); Narisma v. United States, 738 F.Supp. 548 (D.D.C.1990). Under binding Supreme Court precedent, however, see Harris v. Rosario, 446 U.S. 651, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980), we must reverse. The classifications in question, controlling authority instructs, have the requisite rationality.

I.

The benefit status of Philippine World War II veterans is entwined with the history of United States-Philippine relations. One group of Philippine veterans belonged to a military organization, now called the "Old Philippine Scouts," that our government established in 1899, one year after the United States took over the Philippines from Spain. Congress soon incorporated these troops, with an authorized strength of 12,000, into the regular United States Army. See Act of February 2, 1901, Sec. 36, 31 Stat. 748, 757-58. The Old Philippine Scouts have always been considered members of the United States Army and have always received full United States veterans benefits. Their entitlement to benefits, while relevant, is thus not directly at issue in these appeals.

In 1902, shortly after organizing the Old Scouts, Congress established a territorial government in the Islands. Apparently, however, the United States never intended to incorporate the Philippines, and by 1916 Congress indicated its intention eventually to grant the Islands their independence. See Quiban, 713 F.Supp. at 437-38. Finally, after years of discussion, Congress passed the Philippine Independence Act of 1934; pursuant to that Act, the Philippines became a self-governing nation on July 4, 1946. See Pub.L. No. 73-127, Sec. 10(a), 48 Stat. 456, 463 (1934). Pending full independence, the Act authorized the Philippines to adopt a constitution and organize a new government. The Philippines did so in 1935, and in that same year, the Commonwealth legislature established the Philippine Army.

The Independence Act contained a provision crucial to the status of the approximately 200,000 to 300,000 World War II veterans of the Philippine Army. Section 2(a)(12) of the Act authorized the United States, before Philippine independence,

to maintain [United States] military and other reservations and armed forces in the Philippines, and, upon order of the President, to call into the service of [United States] armed forces all military forces organized by the Philippine government.

Some months before the Japanese attack on Pearl Harbor, President Roosevelt exercised this authority to call up the Philippine Army. In his military order of July 26, 1941, Roosevelt commanded:

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 (1941).

United States officers were largely responsible for training the Philippine Army after it had been called into the service of our armed forces, and the United States paid the costs of training and mobilization. See Office of the Center for Military History, The Status of Members of Philippine Military Forces During World War II, at 11-12 (June 1973) (unpublished manuscript prepared for the government's use in Filipino American Veterans & Dependents Ass'n v. United States, 391 F.Supp. 1314 (N.D.Cal.1974) (three-judge court)) (hereinafter, "OCMH Study"), reprinted in Joint Appendix ("J.A.") at 27, 38-39. After the outbreak of war, Congress authorized $269 million to mobilize, train, equip, and pay the Philippine Army, and it gave General MacArthur, commander of the United States Armed Forces in the Far East ("USAFFE"), authority to allocate expenditures. See OCMH Study at 12-13, J.A. at 39-40.

During the Japanese invasion, Philippine soldiers fought bravely alongside other members of USAFFE. Both Americans and Filipinos suffered the terrible Bataan death march; indeed, Philippine soldiers endured particularly cruel treatment from the Japanese. See OCMH Study at 19-20, J.A. at 46-47; cf. Immigration & Naturalization Serv. v. Pangilinan, 486 U.S. 875, 886, 108 S.Ct. 2210, 2217, 100 L.Ed.2d 882 (1988) (acknowledging that Filipino soldiers "fought so valiantly during the early months of [United States participation in] World War II [and] were regarded with especial esteem"). Philippine guerrilla forces continued to fight during the Japanese occupation; their efforts undoubtedly made American reentry into the Philippines much less costly. See OCMH Study at 48-58, J.A. at 75-85.

Filipinos, however, were never paid wages equal to those that Americans received, despite General MacArthur's recommendations and some early support by the War Department for pay equality. The Philippines did, without American opposition, raise pay for Philippine Army enlisted personnel to the higher level enjoyed by Philippine Scouts, but both groups received only a fraction of the pay that American enlisted personnel received. See OCMH Study at 34-35, J.A. at 61-62. Just after American reentry in October 1944, the Philippine president attempted to raise pay rates for Philippine enlisted soldiers to the U.S. Army level, apparently with MacArthur's concurrence. By that time, however, the War Department resisted. The Department cited not just the consequences to the United States treasury, but also the lower cost and standard of living in the Philippines, the inflationary consequences of paying Philippine soldiers wages that vastly exceeded those of most Philippine workers and government officials, and the Philippine government's likely inability to continue the higher rates of pay after independence. See OCMH Study at 37-41, J.A. at 64-68.

Two months after the Japanese surrender, Congress passed the Armed Forces Voluntary Recruitment Act of 1945, one provision of which authorized the Secretary of War, with Philippine approval, to enlist fifty thousand new Philippine Scouts. The New Scouts were to participate "in the occupation of Japan and of lands now or formerly subject to Japan, and elsewhere in the Far East." Pub.L. No. 79-190, Sec. 14, 59 Stat. 538, 543 (1945). ⁴ Only citizens of the Philippines were eligible to enlist in the New Philippine Scouts. See id. The New Scouts never had more than 30,550 enlisted soldiers, and the outfit was phased out by 1950. OCMH Study at 46-47, J.A. at 73-74.

Philippine World War II veterans thus divide among three groups: the Old Philippine Scouts, the Philippine Army, and the New Philippine Scouts. ⁵ As mentioned above, the first group has always been considered a United States Army unit, and has always received full veterans benefits. Because of two 1946 acts of Congress, however, the latter two groups have not been accorded equally advantageous treatment.

The First Supplemental Surplus Appropriation Rescission Act of 1946, Pub.L. No 79-301, 60 Stat. 14, conditioned an appropriation of $200,000,000 to the Philippine Army upon certain limitations on Philippine veterans benefits. As currently codified at 38 U.S.C. Sec. 107(a):

Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed,...