Nery v. United States

15 F. App'x 831

Opinion

GAJARSA, Circuit Judge.

ORDER

The United States moves for summary affirmance of the April 30, 1998 order of the United States District Court for the Central District of California granting the United States’ motion for summary judgment. Leonardo Nery et al. oppose.

Nery et al. served the United States as New Philippine Scouts during and after World War II. Nery et al. filed a civil action in the district court in 1997 seeking military back pay and benefits equal to the veterans benefits available to members of the U.S. Armed Forces. In the district court suit, Nery et al. challenged the constitutionality of 38 U.S.C. § 107(b), which, like 38 U.S.C. § 107(a), statutorily limits the amount and types of benefits available to Philippine veterans of World War II.

Footnotes

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* The district court held that 38 U.S.C. § 107(b) was constitutional, finding that Congress had a rational basis to exclude Philippine veterans of World War II from receiving U.S. veterans benefits.

The United States moves for summary affirmance based on Talon v. Brown, 999 F.2d 514 (Fed.Cir.1993). In Talon, we upheld the constitutionality of 38 U.S.C. § 107(a), relying heavily on Quiban v. Veterans Administration, 928 F.2d 1154 (D.C.Cir.1991), which upheld the constitutionality of sections 107(a) and (b). See also Besinga v. United States, 14 F.3d 1356 (9th Cir.1994) (upheld the constitutionality of 38 U.S.C. § 107(a)). The United States urges summary affirmance, asserting that “there is no basis in law or fact to re-examine this constitutional issue” in this case.

We agree with the United States. As we stated in Talon, “[w]e agree with both the result and the rationale in Quiban and hold that it is dispositive of [the] constitutional arguments.” Because the United States’ position “is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists,” summary disposition is appropriate. Joshua v. United States, 17 F.3d 378, 330 (Fed.Cir.1994).

Accordingly,

IT IS ORDERED THAT:

(1) The United States’ motion for summary affirmance is granted.

(2) Each side shall bear its own costs.

38 U.S.C. § 107 provides:

(a) Service before July 1, 1946, 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 dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by ... competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service 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 Armed Forces ....

(b) Service in the Philippine Scouts ... shall not be deemed to have been active military, naval, or air service for the purpose of any of the laws administered by the Secretary [of Veterans Affairs].