Besinga v. U.S.

• Decision Date: 19 January 1994
• Docket Number: No. 92-56075,92-56075
• Parties: Cornelio R. BESINGA, Plaintiff-Appellant, v. UNITED STATES of America; U.S. Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1356

14 F.3d 1356

Cornelio R. BESINGA, Plaintiff-Appellant, v. UNITED STATES of America; U.S. Attorney General,

Defendants-Appellees.

No. 92-56075.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1993.

Decided Jan. 19, 1994.

Cornelio R. Besinga, pro se, Rosemead, CA, for plaintiff-appellant.

Michael C. Johnson, Asst. U.S. Atty., Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, BEEZER and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

Appellant pro se, Cornelio R. Besinga, a World War II veteran of the Philippine Commonwealth Army, challenges the district court's grant of summary judgment to the United States. He contends that the court erroneously rejected his constitutional challenge to the First Supplemental Surplus Appropriation Rescission Act of 1946. ¹ We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

The resolution of Besinga's constitutional challenge to the classification implicit in the First Supplemental Surplus Appropriation Rescission Act requires some familiarity with the history of joint U.S.-Filipino involvement in the Second World War. On July 26, 1941, with the increasing likelihood of war with Imperial Japan, President Roosevelt invoked his powers under Sec. 2(a)(12) of the Philippine Independence Act ² to "call and order into the service of the Armed Forces of the United States ... all of the organized military forces of the Government of the Commonwealth of the Philippines." 6 Fed.Reg. 3825 (1941). Besinga, like thousands of his comrades, ³ was thus temporarily brought into the service of the United States military.

At this time, the Philippines was a territory of the United States. Pursuant to the 1934 Independence Act, however, the Philippines Commonwealth had a "unique" status, possessing broad powers over its internal affairs. Filipino American Veterans and Dependents Ass'n v. United States, 391 F.Supp. 1314, 1317 (N.D.Cal.1974) (three judge district court panel) ("Filipino American Veterans "). By 1935, the Filipinos had adopted a Constitution, organized a new government and established the Philippine Commonwealth Army ("Commonwealth Army"). ⁴

After the issuance of the 1941 Executive Order, it was contemplated that the Commonwealth Army would retain its national integrity, "with its own uniforms, its own scales of pay, its own promotion list, its own rations, and its own code of military law, with Philippine Army headquarters theoretically being responsible for discipline and punishment." Office of the Center for Military History, The Status of Members of Philippine Military Forces During World War II, at 25 (June 1973) (unpublished manuscript prepared for the government's use in Filipino American Veterans ) ("OCMH Study"); see also Logronio v. United States, 133 F.Supp. 395, 401, 132 Ct.Cl. 596 (1955). However, events quickly altered this understanding. After the outbreak of war, Congress authorized $269 million to mobilize, train, equip and pay the Philippine Army and gave General MacArthur authority to allocate expenditures. OCMH Study, at 11-12. On the battlefield, distinctions between U.S. and Commonwealth Army forces tended to disappear as the military campaign wore on. Id. at 12.

The history of the ensuing military engagement is well-known. The joint American-Filipino stand at Corregidor stands as a testament to courage and endurance. The privations experienced by American and Filipino servicemen has added "Bataan" to the lexicon of human horror.

Despite the contrary feelings of General MacArthur and a sympathetic United States Senate, ⁵ Commonwealth Army members were not paid wages equal to those of American military personnel. Id. at 34-35. The Philippine government did, without American opposition, raise Commonwealth Army pay scales to conform to those paid to another Filipino military grouping, the Old Philippine Scouts. ⁶ After American reentry into the Philippines in October 1944, the Philippine government again attempted to raise pay scales to United States Army levels. However, this attempt was rebuffed by the War Department, which opposed the plan due to the additional drain on the U.S. Treasury and to the perceived inflationary consequences on the Philippine economy. Id. at 37-41.

It was in this context that Congress passed the First Supplemental Surplus Appropriation Rescission Act on February 18, 1946, shortly after the conclusion of the war but before the Philippines became an independent state. ⁷ A rider attached to this legislation conditioned an appropriation of $200 million for the benefit of the postwar Philippine Army on the basis that Commonwealth Army members who were called into service under the President's 1941 order "shall not be deemed to be or have been military or naval forces of the United States" ⁸ for purposes of determining eligibility under most veterans benefit programs. A subsequent Appropriation Rescission Act ⁹ placed similar conditions on the so-called New Philippine Scouts, organized pursuant to the Armed Forces Voluntary Recruitment Act of 1945. ¹⁰ The practical consequence of this legislation was to render Commonwealth Army and New Philippine Scouts personnel ineligible for all United States veterans benefits, except for certain service-connected disability and death benefits. ¹¹

Sometime after his service, Besinga became a naturalized United States citizen. He filed this action in 1987. In Besinga v. United States, 879 F.2d 626 (9th Cir.1989), we upheld the dismissal of the action on grounds of res judicata, citing Filipino American Veterans. We subsequently withdrew our opinion and in Besinga v. United States, 923 F.2d 133 (9th Cir.1991), concluded that Besinga was not bound by the judgment in Filipino American Veterans because he failed to receive proper notice. On remand, the district court granted summary judgment to the United States on the strength of the reasoning in Quiban v. Veterans Administration, 928 F.2d 1154 (D.C.Cir.1991). On appeal, Besinga seeks reversal of the district court's conclusion that the First Supplemental Surplus Appropriation Rescission Act does not violate the Due Process Clause.

II

We review de novo grants of summary judgment. FDIC v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992). Because the facts are not in dispute, we review on purely legal grounds the judgment granted by the district court. Multnomah County Medical Society v. Scott, 825 F.2d 1410, 1413 (9th Cir.1987).

III

Besinga's central contention is that the rider attached to the First Supplemental Surplus Appropriation Rescission Act conflicts with the equal protection component of the Due Process Clause. He argues that the Quiban court, and a fortiori the district court, erred in concluding that the First Supplemental Surplus Appropriation Rescission Act does not require heightened scrutiny because the rider erects an invidiously discriminatory classification on the alternative bases of race, nationality or alienage.

Ordinarily, "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976). "[L]egislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). If the classification is, however, made on the basis of race, nationality or alienage, the statute will be sustained only if it is suitably tailored to serve a compelling state interest. Id.

Confronted by an identical argument, the District of Columbia Circuit rejected the plaintiffs' invitation to apply heightened scrutiny on the controlling authority of two Supreme Court per curiam opinions. Quiban, 928 F.2d at 1159-60. Because we agree that Harris v. Rosario, 446 U.S. 651, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980) (per curiam), and Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (per curiam), are controlling on the question of the appropriate standard of review, we too reject Besinga's invitation to apply strict scrutiny.

In Harris v. Rosario, the Supreme Court rejected an equal protection challenge to a statutory limitation on Aid to Families with Dependent Children payments to residents of Puerto Rico. The Court concluded that Congress "may treat [Territories] differently from States so long as there is a rational basis." 446 U.S. at 651-52, 100 S.Ct. at 1930. The conclusion in Rosario was based on Califano v. Torres. In Torres, the Supreme Court upheld the constitutionality of an amendment to the Social Security Act barring payments to residents of Puerto Rico. Torres received benefits while residing in Connecticut but was denied benefits when he moved to Puerto Rico. 435 U.S. at 2-3, 98 S.Ct. at 907-08. The district court concluded that the amendment was unconstitutional because it abridged Torres' fundamental right to travel. Id. at 4, 98 S.Ct. at 908. The Supreme Court reversed, concluding, incidentally to its rule of decision, that in rejecting the plaintiffs' equal protection theory, the district court properly acknowledged that Congress has the power to treat territories differently. Id. at 3 n. 4, 98 S.Ct. at 907 n. 4.

We agree with the District of Columbia Circuit that this authority compels the conclusion that the broad powers of Congress under the Territory Clause ¹² are inconsistent with the application of heightened judicial scrutiny to economic legislation pertaining to the territories. A contrary rule would subject virtually every failure by Congress to extend federal benefits to residents of the territories to the charge that the decision was " 'based on impermissible considerations of race or national origin.' " Quiban v. Veterans Admin., 928 F.2d 1154,...