Veterans Hit 9th Circuit Wall in Benefits Suit

     (CN) - Relying on fire-damaged records to distribute a fund for Filipino World War II veterans did not leave the Department of Veterans Affairs liable, the 9th Circuit ruled Thursday.
     During World War II, the U.S. military controlled members of the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army.
     Established through the American Recovery and Reinvestment Act, the 2009 Filipino Veterans Equity Compensation Fund (FVEC) provides $15,000 each to veterans who are eligible and are U.S. citizens. Non-U.S. citizens can receive $9,000 each.
     Seven Filipino war veterans with U.S. citizenship and the widows of 21 other veterans filed suit after they were denied benefits. They contended that the VA improperly administered the fund in violation of their Fifth Amendment rights.
     To qualify for benefits, veterans or their widows must submit proof of military enlistment, but only the National Personnel Records Center in St. Louis, Mo., has these records.
     The plaintiffs and widows said their records are some of more than 16 million official files about WWII service lost in a fire at that center in 1973.
     They claimed that the VA's "exclusive reliance" on those records violates their right to due process. The plaintiffs also claimed that the fund is not equal because it sets up two classes of beneficiaries and treats them differently.
     A federal judge in Oakland, Calif., dismissed the lawsuit, with prejudice, after finding that the Veterans' Judicial Review Act of 1988 (VJRA) and sovereign immunity barred review of such claims.
     A three-judge appellate panel affirmed from San Francisco on Thursday, citing a controversial decision that the en banc court reached in Veterans for Common Sense v. Shinseki.
     In that case, the court said it lacked jurisdiction to order an overhaul of the VA's mental health care system, which is overburdened by claims from troubled soldiers returning from a decade of war in Afghanistan and Iraq.
     That decision found that a complaint protesting common practice does not "disguise the fact that it is, fundamentally, a challenge to thousands of ... benefits decisions made by the VA," Judge Ronald Gould wrote for the panel, quoting the May 2012 precedent.
     "And we noted that holding otherwise 'would embroil the district court in the day-to-day operation of the VA," Gould added.
     "Similarly, we hold here that the VJRA bars review of plaintiffs' due-process claim," the ruling continues. "Even viewing plaintiffs' claim as a systemic challenge rather than as a challenge to a group of individual VA decisions, we conclude that addressing the constitutionality of the VA's exclusive reliance on NPRC records to verify military service would necessarily require consideration of individual cases. To determine whether the VA policy unfairly deprives veterans of a protected property interest, we would have to inquire into the circumstances of at least a representative sample of those veterans who were denied FVEC benefits based on the NPRC's inability to verify their service for the purpose of determining whether members of that sample could sufficiently prove their military service without NPRC verification."
     While the VJRA does not similarly preclude consideration of the equal protection claims, the 9th Circuit found no real evidence that the VA created the fund "for a discriminatory purpose."