B-221136, DEC 17, 1985, OFFICE OF GENERAL COUNSEL

B-221136: Dec 17, 1985

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DECISIONS OF VETERANS AGENCY ADMINISTRATION REGARDING CLAIMANTS ENTITLEMENT TO VA BENEFITS ARE NOT REVIEWABLE BY OTHER GOVERNMENT AGENCIES OR COURTS. DISTRICT COURT ACTIONS BY PHILIPPINE NATIONALS FOR PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE WITH THE UNITED STATES ARMED FORCES IN THE FAR EAST AND SUBSEQUENTLY AS RECOGNIZED GUERILLAS IN THE PHILIPPINES ARE SUBJECT TO SIX-YEAR STATUTE OF LIMITATIONS IN 28 U.S.C. IS PROPER DEFENDANT FOR COURT ACTIONS BROUGHT UNDER THE TUCKER ACT. IF GENERAL ACCOUNTING OFFICE IS A NAMED DEFENDANT. NO. 85-2731 (OUR FILE: B-221050) THIS IS IN RESPONSE TO YOUR RECENT REQUEST FOR OUR REPORT WITH RESPECT TO THE SUBJECT CASES WHICH GENERALLY CONCERN CLAIMS BY PHILIPPINE NATIONALS FOR CERTAIN BENEFITS AND ENTITLEMENTS ALLEGEDLY DUE TO THEM AS A RESULT OF THEIR MILITARY SERVICE IN THE PHILIPPINES DURING WORLD WAR II.

B-221136, DEC 17, 1985, OFFICE OF GENERAL COUNSEL

VETERANS ADMINISTRATION - FINALITY OF FINDINGS, ETC. - CONCLUSIVENESS OF ADMINISTRATOR'S DETERMINATION - VETERANS BENEFITS DIGEST: 1. GENERALLY, DECISIONS OF VETERANS AGENCY ADMINISTRATION REGARDING CLAIMANTS ENTITLEMENT TO VA BENEFITS ARE NOT REVIEWABLE BY OTHER GOVERNMENT AGENCIES OR COURTS. STATUTES OF LIMITATION - CLAIMS - MILITARY MATTERS AND PERSONNEL - PAY AND ALLOWANCES - PHILIPPINE SCOUTS 2. DISTRICT COURT ACTIONS BY PHILIPPINE NATIONALS FOR PAY AND ALLOWANCES ARISING FROM MILITARY SERVICE WITH THE UNITED STATES ARMED FORCES IN THE FAR EAST AND SUBSEQUENTLY AS RECOGNIZED GUERILLAS IN THE PHILIPPINES ARE SUBJECT TO SIX-YEAR STATUTE OF LIMITATIONS IN 28 U.S.C. SEC. 2401. COURTS - SUITS AGAINST UNITED STATES - PROPER PARTIES 3. UNITED STATES, NOT EMPLOYEES OR SPECIFIC GOVERNMENT AGENCIES, IS PROPER DEFENDANT FOR COURT ACTIONS BROUGHT UNDER THE TUCKER ACT, 28 U.S.C. SEC. 1346, SEEKING MONETARY RECOVERY. THEREFORE, IF GENERAL ACCOUNTING OFFICE IS A NAMED DEFENDANT, A MOTION TO DISMISS ACTION AGAINST GAO WOULD BE APPROPRIATE.

MR. JOSEPH E. DIGENOVA, U.S, ATTORNEY:

DISTRICT OF COLUMBIA

U.S. COURTHOUSE, ROOM 2800

CONSTITUTION AVENUE, AND 3RD STREET, N.W.

WASHINGTON, D.C. 20001

ATTENTION: CLAIRE WHITAKER, ASSISTANT U.S. ATTORNEY

SUBJECT: 1. PERFECTO N. VARON V. U.S.V.A. ET AL.-- C.A. NO. 85 3002 (OUR FILE: B-220888)

2. JOAQUIN J. CARBONA V. U.S. ET AL.-- C.A. NO. 85-3003 (OUR FILE: B-220883)

3. TEODORICO T. MANDIN V. U.S.V.A. ET AL.-- C.A. NO. 85-3004 (OUR FILE: B-220934)

4. CIPRIANO S. NAMOC V. U.S.V.A. ET AL.-- C.A. NO. 85-3005 (OUR FILE: B-220885)

5. VALERIANO V. BAILLO V. U.S.V.A. ET AL.-- C.A. NO. 85-3006 (OUR FILE: B-220881)

6. VIDAL ABAO V. U.S. ET AL.-- C.A. NO. 85-3009 (OUR FILE: B-220933)

7. FRANCISCO CASSION UYGIOCO, SR., V. U.S.V.A. ET AL.-- C.A. NO. 85 3019 (OUR FILE: B-220932)

8. GODOFREDO ELBAMO CABUYA-ON V. U.S.V.A. ET AL.-- C.A. NO. 85-3001 (OUR FILE: B-220882)

9. ILLUMINADO O. PEDROZA V. U.S.V.A. ET AL.-- C.A. NO. 85-3380 (OUR FILE: B-221136)

10. FRISCO M. MANSO, JR. V. U.S.V.A. ET AL.-- C.A. NO. 85-3021 (OUR FILE: B-220884)

11. ALFREDA MENDOZA TAWEDI V. U.S.V.A. ET AL.-- C.A. NO. 85-3013 (OUR FILE: B-220886)

12. ABUNDIA ARANEZ PALOS V. U.S.V.A. ET AL.-- C.A. NO. 85-3357 (OUR FILE: B-221135)

13. FLORENCIA PAL SARAO V. U.S.V.A. ET AL.-- C.A. NO. 85-3011 (OUR FILE: B-220887)

14. EUFERIA S. VDA DE IBARRA V. V. U.S.V.A. ET AL.-- C.A. NO. 85 2697 (OUR FILE: B-221046)

15. ADORACION T. ALBERIO V. U.S.V.A. ET AL.-- C.A. NO. 85-2698 (OUR FILE: B-221047)

16. LEONORA A. VILLANUEVA V. U.S.V.A. ET AL.-- C.A. NO. 85-2699 (OUR FILE: B-221048)

17. PEDRO H. SAMONTINA V. U.S.V.A. ET AL.-- C.A. NO. 85-2701 (OUR FILE: B-221044)

18. PEDRO O. CAGAMPANG V. U.S.V.A. ET AL.-- C.A. NO. 85-2702 (OUR FILE: B-221045)

19. PACENCIA CASTRO ASISTIDO V. U.S.V.A. ET AL.-- C.A. NO. 85-2700 (OUR FILE: B-221049)

20. AGAPITO T. POSPOS V. U.S.V.A. ET AL.-- C.A. NO. 85-2703 (OUR FILE: B-221051)

21. HERMENIGILDO G. LUSICA V. U.S.V.A. ET AL.-- C.A. NO. 85-2731 (OUR FILE: B-221050)

THIS IS IN RESPONSE TO YOUR RECENT REQUEST FOR OUR REPORT WITH RESPECT TO THE SUBJECT CASES WHICH GENERALLY CONCERN CLAIMS BY PHILIPPINE NATIONALS FOR CERTAIN BENEFITS AND ENTITLEMENTS ALLEGEDLY DUE TO THEM AS A RESULT OF THEIR MILITARY SERVICE IN THE PHILIPPINES DURING WORLD WAR II. ALTHOUGH THE COMPLAINTS ARE CONFUSING AND DIFFICULT TO COMPREHEND, WE HAVE SOME COMMENTS THAT MAY BE HELPFUL TO YOU IN DEFENDING THE ACTIONS.

IN NUMBERS 1 THROUGH 9 OF THE SUBJECT CASES, THE PLAINTIFFS APPEAR TO ALLEGE THAT INITIALLY THEY WERE MEMBERS OF THE UNITED STATES ARMED FORCES IN THE FAR EAST (USAFFE) AND THEN WERE MEMBERS OF THE RECOGNIZED GUERILLAS IN THE PHILIPPINES. BASED ON THIS MILITARY SERVICE THE INDIVIDUALS CLAIM CERTAIN BENEFITS AND ENTITLEMENTS, ALTHOUGH THE EXACT NATURE OF THESE BENEFITS AND ENTITLEMENTS IS DIFFICULT TO DISCERN. EACH INDIVIDUAL ALSO ALLEGES IN ONE FORM OR ANOTHER THAT THE GENERAL ACCOUNTING OFFICE, AMONG OTHER FEDERAL AGENCIES, DENIED THEIR CLAIMS FOR BENEFITS. USUALLY, THE CLAIMANTS REFERENCE THE STATUTE OF LIMITATIONS OF OCTOBER 8, 1940, AS BEING THE REASON FOR GAO'S DENIAL OF THEIR CLAIMS.

WE HAVE NO RECORD OF ANY CLAIMS HAVING BEEN FILED WITH THE GENERAL ACCOUNTING OFFICE BY ANY OF THESE NINE INDIVIDUALS OR INDEED BY ANY OF THE OTHER PLAINTIFFS IN THE REMAINING SUBJECT CASES. SINCE THE RECORDS OF OUR CLAIMS DIVISION ARE ONLY RETAINED FOR FIFTEEN YEARS AND THEN ARE DESTROYED, WE CANNOT BE CERTAIN WHETHER ANY OF THE PLAINTIFFS EVER DID FILE A CLAIM WITH THE CLAIMS DIVISION.

SEVERAL DECISIONS OF THE COMPTROLLER GENERAL INVOLVE ADJUDICATIONS OF CLAIMS SEEMINGLY SIMILAR TO THOSE FILED BY THESE NINE INDIVIDUALS. BY WAY OF BACKGROUND, WE NOTE THAT INDIVIDUALS WHOSE CLAIMS ARE TURNED DOWN BY THE CLAIMS DIVISION HAVE A RIGHT TO APPEAL THE DENIAL OF THEIR CLAIMS AND SUCH AN APPEAL RESULTS IN DECISION OF THE COMPTROLLER GENERAL. IF A CLAIMANT DOES APPEAL, THEN A PERMANENT RECORD OF THE CASE IS MADE.

SEVERAL MEMBERS OF THE USAFFE WHO BECAME GUERILLAS FILED CLAIMS WITH THE GENERAL ACCOUNTING OFFICE SEEKING MUSTERING-OUT PAY. IN THOSE CASES WE EXPLAINED THAT MEMBERS OF THE RECOGNIZED GUERILLAS WERE NOT ENTITLED TO MUSTERING-OUT PAY UNDER THE APPLICABLE LAW, THE MUSTERING OUT PAYMENT ACT OF 1944. WE DID POINT OUT THAT EFFECTIVE JUNE 29, 1967, THERE EXISTED AN AGREEMENT BETWEEN THE UNITED STATES AND THE REPUBLIC OF THE PHILIPPINES ENTITLED "SETTLEMENT OF VETERANS CLAIMS." THE AGREEMENT PROVIDED FOR THE PAYMENT OF FUNDS BY THE UNITED STATES TO THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES IN FULL SETTLEMENT OF VARIOUS CLAIMS ARISING FROM MILITARY SERVICE BY MEMBERS OF THE PHILIPPINE ARMY AND GUERILLAS DURING WORLD WAR II. INDIVIDUALS COVERED WERE THOSE WHO HAD NOT PREVIOUSLY BEEN PAID AND WHOSE NAMES APPEARED ON THE UNITED STATES APPROVED REVISED FINAL ROSTER OF GUERILLA FORCES OF MARCH 1948. THEREFORE, WE ADVISED THE INDIVIDUALS TO FILE THEIR CLAIMS WITH THE PHILIPPINE GOVERNMENT.

ADDITIONALLY, IN SOME OF THESE CASES, WE EXPLAINED THAT ANY CLAIM WOULD BE BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, THEN CODIFIED AT 31 U.S.C. SEC. 71A (NOW 31 U.S.C. SEC. 3702) SINCE THE ACT REQUIRED ANY CLAIMS TO BE FILED WITH THE GENERAL ACCOUNTING OFFICE "WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM ACCRUED." IN THIS REGARD, ANY CLAIM DERIVING FROM MILITARY SERVICE WOULD GENERALLY ACCRUE UPON DISCHARGE.

WE ARE ENCLOSING COPIES OF B-171542, JANUARY 5, 1971; B-156437, APRIL 8, 1969; AND B-163261, FEBRUARY 6, 1968. THESE CASES ARE REPRESENTATIVE OF THE TYPE CASES DISCUSSED ABOVE AND CONTAIN MORE SPECIFIC ANALYSIS OF THE ISSUES AND COMPLETE CITATIONS TO THE LAWS INVOLVED.

REGARDING NUMBERS 10, 11 AND 12 OF THE SUBJECT CASES, THESE ACTIONS SEEK BENEFITS FOR THE WIDOWS OF DECEASED INDIVIDUALS WHO APPARENTLY WERE IN A STATUS SIMILAR TO THE OTHER CLAIMANTS IN THE CASES DISCUSSED ABOVE. THEREFORE, THE COMMENTS PREVIOUSLY MADE WOULD BE EQUALLY APPLICABLE TO THESE CLAIMS.

REGARDING THE THIRTEENTH SUBJECT CASE, IT SEEMS THAT THE CLAIMANT IS SEEKING BENEFITS AND ENTITLEMENTS BASED ON MILITARY SERVICE AS A NURSE APPARENTLY WITH THE RECOGNIZED PHILIPPINE GUERILLAS. WE HAVE UNCOVERED NO CASES SIMILAR TO THIS ONE AND ARE UNSURE WHETHER THE CLAIMANT WOULD HAVE BEEN CONSIDERED A MILITARY MEMBER EVEN IF HER ALLEGATIONS ARE TRUE.

REGARDING THE REMAINING SUBJECT CASES NUMBERS 14-21, CLAIR WHITAKER OF YOUR STAFF, HAS ADVISED US THAT THESE 8 CASES ARE SIMILAR TO THE OTHER 13 CASES. THEREFORE, OUR PREVIOUS COMMENTS REGARDING THE 13 CASES FOR WHICH WE HAVE COMPLAINTS WOULD BE APPLICABLE TO THESE 8 CASES.

OF THE 19 CASES, THE GENERAL ACCOUNTING OFFICE HAS BEEN MADE A NAMED PARTY IN 10 CASES (SUBJECT CASES NUMBERS 2, 3, 4, 5, 6, 7, 8, 9, 12, 19, 20, AND 21. WE REQUEST THAT YOU REPRESENT US IN THESE 12 CASES. FOR THESE CASES A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED WOULD BE APPROPRIATE. THE COMPTROLLER GENERAL, AS HEAD OF THE GENERAL ACCOUNTING OFFICE, CONSIDERS MONETARY CLAIMS FILED BY INDIVIDUALS. THEREFORE, AS REGARDS THE ALLEGATIONS RELATIVE TO THE GENERAL ACCOUNTING OFFICE IN THE SUBJECT CASES, THOSE ALLEGATIONS CONCERN THE DENIAL OF CLAIMS FOR MONEY ALLEGEDLY DUE THE CLAIMANTS FROM THEIR GOVERNMENT SERVICE. THE BASIS OF THE DISTRICT COURT'S JURISDICTION TO CONSIDER MONETARY CLAIMS THAT HAVE OR COULD HAVE BEEN CONSIDERED BY THE GENERAL ACCOUNTING OFFICE IS THE TUCKER ACT, 28 U.S.C. SEC. 1346. UNDER THIS ACT, ONLY THE UNITED STATES GOVERNMENT IS A PROPER DEFENDANT AND NEITHER EMPLOYEES OR SPECIFIC GOVERNMENT AGENCIES ARE PROPER DEFENDANTS. BOYD V. UNITED STATES, 482 F.SUPP. 1126, 1118 (W.D. PA. 1980).

THE PLAINTIFF'S CLAIMS OF THE TYPE COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE INCLUDE CLAIMS FOR PAY AND ALLOWANCES FOR MILITARY SERVICE. THESE CLAIMS WOULD APPEAR TO BE BARRED FROM CONSIDERATION BY THE DISTRICT COURT. INDIVIDUALS MUST FILE MONETARY CLAIMS AGAINST THE GOVERNMENT WITHIN SIX YEARS OF THEIR ACCRUAL OR THE CLAIMS ARE BARRED. 28 U.S.C. SEC. 2401. ALTHOUGH THE CONFUSING ALLEGATIONS IN THE SUBJECT CASES MAKE IT DIFFICULT TO ASCERTAIN THE PRECISE DATE OF THE ACCRUAL OF THE CLAIMS, IT APPEARS HIGHLY IMPROBABLE THAT THE CLAIMS ARE NOT TIME BARRED. THE CLAIMS ARISE FROM ALLEGED MILITARY SERVICE DURING WORLD WAR II AND GENERALLY CLAIMS ARISING FROM MILITARY SERVICE ACCRUE UPON THE MEMBER'S DISCHARGE. WHEN STATED BY A CLAIMANT IN HIS OR HER COMPLAINT THE DISCHARGE DATE IS ALWAYS BEFORE 1950.

THE PLAINTIFFS ALSO CLAIM ENTITLEMENT TO VETERANS ADMINISTRATION BENEFITS AND SOCIAL SECURITY BENEFITS. WE ASSUME THAT YOU WILL CONTACT THE VETERANS ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FOR THEIR VIEWS ON THESE CLAIMS. WE NOTE, HOWEVER, THAT IT APPEARS UNLIKELY THAT THE PLAINTIFFS HAVE ANY VIABLE CLAIMS INVOLVING THESE BENEFITS.

REGARDING VETERANS ADMINISTRATION BENEFITS, WITH LIMITED STATUTORY EXCEPTIONS ANY DECISION REGARDING VETERANS ADMINISTRATION BENEFITS MADE BY THE ADMINISTRATOR OR HIS DELEGATE IS FINAL AND CONCLUSIVE AND NO OTHER GOVERNMENT OFFICIAL OR COURT HAS JURISDICTION TO REVIEW THOSE DECISIONS. 38 U.S.C. SECS. 211 AND 212. PERHAPS RELEVANT IS THAT A DISTRICT COURT DOES HAVE JURISDICTION TO HEAR A COMPLAINT INVOLVING CERTAIN VETERANS ADMINISTRATION LIFE INSURANCE PROGRAMS. SEE 38 U.S.C. SECS. 775 AND 784(A). HOWEVER, AN ACTION UNDER SECTION 784(A) MUST BE BROUGHT WITHIN SIX YEARS AFTER THE RIGHT ACCRUED FOR WHICH THE CLAIM IS MADE. 38 U.S.C. SEC. 784(B). AN ACTION UNDER SECTION 775 WOULD APPEAR TO BE GOVERNED BY THE GENERAL STATUTE OF LIMITATIONS IN 28 U.S.C. SEC. 2401.

FINALLY, PLAINTIFFS MAKE ALLEGATIONS WHICH APPARENTLY COMPLAIN OF CERTAIN DECISIONS AFFECTING THEIR RIGHTS UNDER THE SOCIAL SECURITY ACT, 42 U.S.C. SEC. 301 ET SEQ. AN ACTION TO RECOVER ON A CLAIM ARISING UNDER THE ACT MAY BE BROUGHT ONLY UNDER 42 U.S.C. SEC. 405(G). HENKLER V. RINGER, *** U.S. ***, 104 S.CT. 2013, 2020-23 (1984). THAT SECTION REQUIRES AS A PREREQUISITE TO AN ACTION IN FEDERAL COURT THAT A CIVIL ACTION BE BROUGHT WITHIN 60 DAYS OF RECEIPT OF A FINAL DECISION OF THE SECRETARY OF HEALTH AND HUMAN SERVICES. WE ASSUME THE SOCIAL SECURITY ADMINISTRATION WILL ADVISE YOU WHETHER THE PLAINTIFFS HAVE COMPLIED WITH THE STATUTORY PREREQUISITE.

IF I MAY BE OF FURTHER ASSISTANCE, PLEASE CONTACT ME AT 275-6410.