Logronio v. United States

Decision Date12 July 1955
Docket NumberNo. 354-54.,354-54.
Citation133 F. Supp. 395
PartiesEleuterio LOGRONIO v. The UNITED STATES.
CourtU.S. Claims Court

Elfren R. Sarte, Manila, Philippines, for plaintiff.

Alfred H. O. Boudreau, Jr., Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant. Walter Kiechel, Jr., Washington, D. C., was on the brief.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

WHITAKER, Judge.

Plaintiff's claim is for pay he claims is due him as an officer in the Philippine Army. His claim covers three periods: (1) from December 18, 1941 to April 8, 1942; (2) from April 8, 1942 to September 9, 1943; and (3) from September 9, 1943 to March 31, 1945. Except for the second period, he has been paid by the Army of the Philippines under the Missing Persons Act of the Congress of the United States, Act of March 7, 1942, 56 Stat. 143, as amended, section 1001 et seq., Title 50 U.S.C.A.Appendix. His complaint is that he was given the pay of a sergeant, whereas he alleges he was a first lieutenant from December 18, 1941 to March 31, 1945, and he sues for the difference in pay and allowances.

For the second period, from April 8, 1942 to September 9, 1943, he was found to be in a "no casualty status," and, therefore, not entitled to any benefits under the Missing Persons Act for this period. He sues for his full pay and allowances for this period.

It appears that plaintiff was a member of the Philippine Army, but presumably his suit is against the United States and not the Philippines, although his petition does not so state. He prays for judgment "ordering the payment" of the amounts he claims, but he does not state against whom he desires judgment. We shall assume, however, he is asking judgment against the United States.

Although a member of the Philippine Army, plaintiff is entitled to claim the benefits of the Missing Persons Act passed by the Congress of the United States, supra. The Appropriation Act of February 18, 1946, 60 Stat. 6, 14, 38 U.S.C.A. § 38 appropriated $200,000,000 for the Army of the Philippines, but with the following provisos:

"Army of the Philippines, $200,000,000: Provided, That service 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 of the United States dated July 26, 1941, shall not be deemed to be or to have been service in the military or naval forces of the United States or any component thereof for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the military or naval forces of the United States or any component thereof, except benefits under (1) the National Service Life Insurance Act of 1940, as amended, under contracts heretofore entered into, and (2) laws administered by the Veterans' Administration providing for the payment of pensions on account of service-connected disability or death: Provided further, That such pensions shall be paid at the rate of one Philippine peso for each dollar authorized to be paid under the laws providing for such pensions: Provided further, That any payments heretofore made under any such law to or with respect to any member of the military forces of the Government of the Commonwealth of the Philippines who served in the service of the armed forces of the United States shall not be deemed to be invalid by reason of the circumstances that his service was not service in the military or naval forces of the United States or any component thereof within the meaning of such law."

On July 25, 1947, the foregoing Act was amended, 61 Stat. 455, by adding the following at the conclusion thereof: "and (3) the Missing Persons Act, approved March 7, 1942 (56 Stat. 143), as amended."

However, plaintiff is not entitled to recover under the Missing Persons Act, as amended, supra, if for no other reason, because section 9 thereof, sec. 1009 of Title 50 App. U.S.C.A. provides: "The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the administration of this Act, and for the purposes of this Act determinations so made shall be conclusive as to death or finding of death, as to any other status dealt with by this Act, and as to * * *." Then later the section provides again: "Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under provisions of this Act, to pay and allowances, including credits and charges in his account, and all such determinations shall be conclusive * * *."

The determination has been made by the authorized representative of the head of the department concerned, and we plainly have no jurisdiction to alter it. Moreno v. United States, 93 F.Supp. 607, 118 Ct.Cl. 30, certiorari denied 342 U.S. 814, 72 S.Ct. 29, 96 L.Ed. 616.

Plaintiff's claim for pay and allowances while he was a member of a guerrilla unit stands on an entirely different basis. Plaintiff's petition does not allege that the unit of which he was a member had been recognized by the Commander in Chief, Southwest Pacific Area, as required by the order of Mr. Osmena, President of the Commonwealth of the Philippines, hereafter quoted in part; but even if his unit had been so recognized, we are of opinion that the members thereof have no claim against the United States for pay and allowances. Recognized or not, they never became members of the Army of the United States, and are not entitled to the pay and allowances of such members, nor were they authorized to bind the United States in any respect. Upon recognition by the Commander in Chief, Southwest Pacific Area, they did become members of the Philippine Army, pursuant to Executive Order No. 21, issued by Mr. Osmena, President of the Commonwealth of the Philippines, on October 28, 1944; but the Philippine Army never became a part of the Army of the United States.

We so held in our first opinion in the case of Victorio v. United States, Ct.Cl., 91 F.Supp. 748. On a motion for a rehearing, we concluded, mainly because of the provisions of the Act of January 26, 1918, 40 Stat. 432, 32 U.S.C.A. § 84, that the Philippine Army did become a part of the Army of the United States, including members of recognized guerrilla units. 106 F.Supp. 182, 122 Ct.Cl. 708. However, we have reexamined the question and now conclude that the Act of January 26, 1918, had no application to the conditions existing in 1941, that the call of the Philippine Army "into the service of the armed forces of the United States" by President Roosevelt on July 26, 1941, did not give to the members of the Philippine Army the status of members of the Army of the United States.

We think we erred in our opinion on motion for a rehearing in the Victorio case, supra, decided July 15, 1952, and that decision is overruled.

The Act of January 26, 1918, was passed when the Philippines were a territorial possession of the United States, acquired by it from Spain under the Treaty of 1898, 30 Stat. 1754. The chief executive officer of the Philippines was a Governor General appointed by the President of the United States, and confirmed by the United States Senate. Its Supreme Court was appointed by the President of the United States, and confirmed by the United States Senate. It had its own Legislature, but this Legislature could pass no law in conflict with the Constitution of the United States nor with any Act of Congress. It was, therefore, entirely logical at that time for Congress to enact, as it did in the Act of January 26, 1918, supra, that all members of the militia "and other locally created armed forces in the Philippine Islands" * * * "may be drafted into * * * the service of the United States and organized in such manner as is or may be provided by law for calling or drafting the National Guard of the States into said service, and shall in all respects while therein be upon the same footing with members of the National Guard so called or drafted."

However, the situation was entirely different when President Roosevelt on July 26, 1941, called the Philippine Army "into the service of the armed forces of the United States." In the meantime the Congress of the United States had passed the Philippine Independence Act on March 24, 1934, 48 Stat. 456, providing for "the complete independence of the Philippine Islands," to become completely effective within a period of ten years. Under that Act the Philippine Legislature was authorized to provide for the election of delegates to a constitutional convention to meet not later than October 1, 1934, "to formulate and draft a constitution for the government of the Commonwealth of the Philippine Islands * * * which shall exercise jurisdiction over all the territory ceded to the United States by the treaty of peace concluded between the United States and Spain on the 10th day of December 1898."

This right to formulate a constitution was, however, subject to certain conditions set out in the Act, "pending the final and complete withdrawal of the sovereignty of the United States over the Philippine Islands." Among these conditions were that all citizens of the Philippine Islands "shall owe allegience to the United States," that the officers "of the government of the Commonwealth of the Philippine Islands" shall recognize and accept the "supreme authority of and will maintain true faith and allegience to the United States," the foreign affairs of the Islands were to be under the direct supervision and control of the United States, the decisions of the courts of the Commonwealth of the Philippines were subject to review by the Supreme Court of the United States, and the United States reserved "the right to...

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8 cases
  • Midgett v. United States
    • United States
    • Court of Federal Claims
    • July 18, 1979
    ...our scope of review precludes consideration of the deserter determination made in the first instance, citing Logronio v. United States, 133 F.Supp. 395, 132 Ct.Cl. 596 (1955), for the proposition that this court is without jurisdiction to alter prior determinations of the status of military......
  • Besinga v. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 19, 1994
    ...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 mo......
  • Soriano v. United States, 49
    • United States
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    • January 14, 1957
    ...Ct.Cl. 971, after issue was drawn on the pleadings, the Court of Claims dismissed the suit on the authority of Logronio v. United States, 1955, 133 F.Supp. 395, 132 Ct.Cl. 596. In effect, this reaffirmed its earlier holdings that members of the guerrilla units of the Philippine Army were no......
  • In re Escalona, A17 848 730.
    • United States
    • United States District Courts. U.S. District Court — Panama Canal Zone
    • February 6, 1970
    ...provides, in part,— "(a) Any person who, * * * has served honorably in an active-duty status in the military, air, or naval forces of the United States during * * * a period beginning September 1, 1939, and ending December 31, 1946, * * *, and who, if separated from such service, was separa......
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