CHICAGO (FAXX/jGLi) – Filipino World War II veterans, who are denied of benefits, are better off filing their appeals before the United States’ Board of Veterans Appeals, not the U.S. District Courts.
In merely a span of a week, the Filipino veterans lost another class-action suit pending before Judge Saundra Brown Armstrong of the U.S. Northern District of California in Oakland for lack of jurisdiction.
Filipino American lawyer Lourdes S. Tancinco, representing Filipino veterans Romeo R. de Fernandez, Ciriaco C. de la Cruz and Valeriano C. Marcelino of the Veterans Equity Center of San Francisco, said she is going to file an appeal.
Earlier, the U.S. Court of Appeals for the Ninth Circuit based in San Francisco in a similar lawsuit filed by plaintiff Filipino veteran Ireneo Recinto and 26 others that originated from Judge Armstrong likewise found for the U.S. Department of Veterans Affairs and VA Sec. Erik K. Shinseki and his Deputy Secretary W. Scott Gould.
In a decision dated Feb. 14, 2013 but made public only Friday (Feb. 22), Judge Armstrong granted the defendants’ motion to dismiss the class action complaint for declaratory and injunctive relief under the U.S. Constitution.
In finding for the U.S. Veterans Administration, Armstrong cited the enactment of Veterans’ Judicial Review Act (VJRA) of 1988 that bars (Art. III) U.S. District Courts from exercising jurisdiction over cases filed by veterans seeking benefits. In addition, veterans are barred from filing claims based on the “doctrine of sovereign immunity or otherwise fail to state a claim.”
FROM VA TO BVA TO USCAVC TO FC
Under VJRA, claimants should initially file their claims before a VA (Veterans Administration) Regional Office (like Manila’s VA RO or Chicago’s VA RO). If they lose, they can later file an appeal before the Board of Veterans’s Appeals, then, the (Art. I) U.S. Court of Appeals for Veterans Claims and the Federal Circuit, all based in Washington, D.C.
The VJRA provides that VA “shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.”
De Fernandez and company argued that they are not “seeking to appeal the individual benefits decision made by the VA on their FVEC (Filipino Veterans Equity Compensation under ARRA) claim” but the policy of the VA of denying them due process when their claims were denied because their names are not found in the National Personnel Records Center (NPRC) in St. Louis, Missouri.
And even if their names are in the NPRC, the VA still found a way to deny them by challenging their loyalty to the U.S. flag, which they believe infringes on their “property and liberty” in violation of their due process clause and of the Fifth Amendment, which deprive them of their “life, liberty or property without due process of law.”
Citing the ruling on Veterans for Common Sense v. Shinseki, upheld by an en banc panel of the Ninth Circuit and its certiorari application denied by the U.S. Supreme Court last Jan. 7, Judge Armstrong said its holding precludes federal court jurisdiction over “cases where adjudicating veterans’ claims requires the district court to determine whether the VA acted properly in handling a veteran’s request for benefits” and “also to those decisions that may affect such cases.”
“MAKA-PILI” DENIED BENEFIT
Although in the same case (Veterans for Common Sense), the Ninth Circuit found that the district court “had jurisdiction over claims, seeking review of the VA’s procedures for claims handling, since the court was not being asked “to review decisions” affecting the provision of benefits to any individual claimants” or any VA decision “at all,” Armstrong still rejected De Fernandez’s argument, citing a “virtually identical argument” raised in Recinto v. U.S. Department of Veterans Affairs by the same Ninth Circuit.
In Recinto, whose decision came down on Feb. 7, 2013, the Filipino WW II veterans and widows of Filipino WW veterans filed suit to challenge the VA’s denial of their claims for FVEC benefits. Recinto’s lawyer, Arnedo Valera, is also mounting an appeal.
Like De Fernandez’s case, Recinto’s case alleged that the VA’s practice of relying exclusively on records from the NPRC to verify veterans’ service history violated their right to due process because most of those records were destroyed in a fire, which occurred in 1973.
In one of the plaintiffs in the De Fernandez’ case, the name of Valeriano C. Marcelino, 88, of the Recognized Guerilla unit called Pangasinan Anti-Crime Service, 5th Infantry Regiment, LGAF (Luzon Guerilla Armed Forces) (PACS) was found not only in the Approved Revised Reconstructed Guerilla Roster of 1948 and had served under the Philippine Commonwealth Army but also in the NPRC or the “Missouri List.”
But Marcelino’s claim was still denied by the VA because “someone with your name may have assisted the Japanese in their war efforts.” The VA said, “We realize that this could be the result of a record-keeping problem.” It said it “uncovered a copy of a check numbered A 511152 endorsed by The Yokohama Specie Bank, Limited in the amount of P635 made payable to V. Marcelino.”
In denying the check, Marcelino said that as a farmer before the war, he never saw a check in his life until he came to the U.S.
In further denying Marcelino, the VA required Marcelino to produce a statement that must be “corroborated by two disinterested persons who knew him before the war and during the Japanese Occupation, who have personal knowledge of his activities from 1941 to 1945 and their names and respective addresses.”
Marcelino’s lawyers argued that such VA requirements for something that happened 60 years ago are “unreasonable and cannot be met and were made without any expectation that they could.” These certainly caused Marcelino “substantial anguish and distress.”
There are about 24,000 Filipino veterans, who were denied to receive the $15,000 lump-sum benefit if they are U.S. Citizens and $9,000 if they are not U.S. Citizens under the American Recovery and Reinvestment Act (ARRA) of 2009, only because their names could not be found in the Missouri List. (firstname.lastname@example.org)