SAN FRANCISCO (CN) - The 9th Circuit seems unlikely to revive the claims of Filipino World War II veterans challenging the government's benefits scheme.
The veterans have taken issue with how the Filipino Veterans Equity Compensation Fund uses armed service records to determine eligibility for benefits.
Created in 2009, the fund provides $15,000 each to veterans who are eligible and are U.S. citizens. The widow of any eligible veteran who dies after timely applying for compensation can also receive the benefits.
Non-U.S. citizens who fought for the United States can receive $9,000 each.
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.
A group of these soldiers say that the Department of Veterans Affairs improperly determines benefit eligibility by relying on a list held at the National Personnel Records Center (NPRC) in St. Louis, Mo., that fire had damaged in 1973.
Seven Filipino war veterans with U.S. citizenship and the widows of 21 other veterans filed suit, claiming that the refusal to provide one-time payments violates the due process and equal protection clauses under the Fifth Amendment.
A federal judge in Oakland, Calif., dismissed the claims last year, finding that the VA has sovereign immunity.
Arnedo Valera, a Philippines-born attorney now based in Fairfax, Va., is in charge of the veterans' appeal before a three-judge panel of the 9th Circuit.
At a hearing Monday in San Francisco, Valera asked whether it is "constitutional for the government to establish the NPRC, or the Missouri List, as the only way to prove military service?"
Some veterans who have been denied benefits nonetheless received medals and citations for World War II service, said Valera, serving pro bono for the Migrant Heritage Commission.
Judge Milan Smith said that Congress had set up a mechanism to resolve issues related to veterans' benefits through the VA, and that federal trial courts could not address individual claims made by veterans.
"You declined to go through the administrative process, is that correct?" Smith asked. "You decided that because of a reliance on what you are referring to as the Missouri list that you wanted to go to the District Court."
Congress gave the secretary of Veterans Affairs the authority to decide to use that list to determine eligibility, Smith added.
The judge observed that the veterans had characterized their challenge to the statute broadly. "This is not a facial challenge, this is an individual challenge," Smith said. "You've got a lot of individual people, all of whom I'm sure served with distinction, but under the rules Congress has established, it said, 'This is the way you've gotta go' and you've chosen not to go it."
Judge Robert Sack, sitting by designation from the 2nd Circuit chimed in: "Of course, I understand the unfairness you're talking about."
The VA can decide how it determines whether a claimant's service meets the requirements for receiving benefits, Sack said, going on to question why the veterans bypassed the Board of Veterans' Appeals to file a federal complaint.
Judge Milan summed up their concerns by asking, "How can we get involved when Congress has expressly said the exclusive jurisdiction is over here in a different court?"
Valera, the plaintiffs' attorney, responded that the federal courts are the proper venue for the veterans' constitutional due-process and equal-protection claims.
While Judge Sack said that he had no reason to doubt that the plaintiffs had served in the military and been unfairly denied by the VA's reliance on the Missouri list, he insisted that the veterans' courts could address such violations of the law, which are not a constitutional issue.
The plaintiffs' equal-protection claims center on the disparity of treatment among veterans of different conflicts. Valera added that Filipino veterans are denied pension and other benefits that are available to veterans of other wars.
He questioned why there are different benefits for a veteran returning from Afghanistan, Vietnam or Korea, and a veteran from World War II who is now in his 80s and who has been recognized as a veteran by the armed services.
The judges went on to question Department of Justice attorney Charles Whitaker about whether the veterans received an opportunity to use records other than the Missouri list to prove benefits entitlement.
Whitaker said the veterans had had a one-year opportunity to present U.S. service records and to make due-process claims.
The process shields the veterans' equal protection rights because their claims can be made before the Board of Veterans' Appeals and further appealed to the Federal Circuit, Whitaker said.
"This is not a case about precluding judicial review, but about channeling review," Whitaker said.
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