[00:00:58] Speaker 03:
Our last case for today is Reyes v. Wilkie, appeal number 18-2423.

[00:01:05] Speaker 03:
Mr. Mastriani, did I say that correctly?

[00:01:10] Speaker 03:
Yes, you did.

[00:01:12] Speaker 03:
Please proceed.

[00:01:13] Speaker 02:
Thank you, Your Honor.

[00:01:14] Speaker 02:
Good morning, and may it please the Court.

[00:01:16] Speaker 02:
On July 26, 1941, President Roosevelt called into the service of the U.S.

[00:01:22] Speaker 02:
Armed Forces all of the ground-based military personnel in the Philippines.

[00:01:28] Speaker 02:
When he did so, he did so unequivocally and absolutely.

[00:01:34] Speaker 02:
By calling them into service, he called not only the human beings into service, but all of their assets and their resources, including the records for those forces.

[00:01:45] Speaker 02:
As part of his military order, General MacArthur was appointed as the Commander-in-Chief of the Southwest Pacific Area, and that included the Philippines.

[00:01:57] Speaker 02:
At the time,

[00:01:58] Speaker 02:
The 7th Military District on the Negros Oriental Island in the Philippines was recognized by General MacArthur.

[00:02:08] Speaker 02:
And in fact, the commanders of the forces in that area, both in the Commonwealth Army and in the guerrilla forces, reported directly to General MacArthur until he gave operational authority to General Eichelberger of the Eighth Army.

[00:02:24] Speaker 02:
So at all times, every single man and woman

[00:02:28] Speaker 02:
in the Philippine forces during the time period in question, World War II, were under the direct command of senior U.S.

[00:02:37] Speaker 02:
Army officers.

[00:02:42] Speaker 00:
Well, how does that bear on your case, Mr. Benjamin?

[00:02:45] Speaker 02:
It bears on our case because the, I'll get right to the chase, the Form 23 affidavit was expressly ordered by Gerald MacArthur

[00:02:56] Speaker 02:
and he dictated that it was required to process all guerrillas and personnel in the Philippines, including in Negros Oriental Island, which is the seventh military district.

[00:03:09] Speaker 02:
By doing so, his general headquarters in Australia at the time took that form, and they laid out the content, and they devised the form.

[00:03:24] Speaker 02:
They gave it to Eighth Army personnel,

[00:03:27] Speaker 02:
who were directed to use it in the processing of all the guerrillas in the Seventh Military District.

[00:03:34] Speaker 02:
They took the information from the applicants, including the appellant here in Feliciano Reyes, who filled it out.

[00:03:41] Speaker 01:
Where are you going?

[00:03:42] Speaker 01:
You're going to say that Form 23 is a document, a military document, and therefore satisfies 3.203A?

[00:03:51] Speaker 01:
It absolutely does, Your Honor.

[00:03:54] Speaker 01:
You need to tell us where you're going.

[00:03:56] Speaker 02:
Where I'm going, your honor, which is set forth in our brief, is that this document was dictated by the U.S.

[00:04:02] Speaker 02:
Army, administered by the U.S.

[00:04:04] Speaker 02:
Army.

[00:04:05] Speaker 01:
Well, you've got one that was signed by a Filipino, and you've got one that was countersigned by a U.S.

[00:04:12] Speaker 01:
officer.

[00:04:13] Speaker 02:
You had the one that was signed by the summary court officer of the Eighth Army, Lieutenant Carol Turk, governs here.

[00:04:20] Speaker 02:
It is one of the affidavits that's at issue here.

[00:04:26] Speaker 02:
And that's what counts, because this is an official document issued by Service Department, number one.

[00:04:34] Speaker 02:
Number two, it shows the length, time, and character of the service.

[00:04:40] Speaker 02:
And three, it is not subject to challenge.

[00:04:43] Speaker 00:
Are you attacking the Army's conclusion that there is no proof of her service?

[00:04:50] Speaker 00:
Absolutely, without question.

[00:04:52] Speaker 00:
But that's not the issue in front of us, is it?

[00:04:55] Speaker 02:
It is.

[00:04:56] Speaker 02:
Your honor, because in the sense it's folded into the issue.

[00:05:01] Speaker 00:
Can we rule that the army was wrong?

[00:05:04] Speaker 02:
You can't rule that the army was wrong in the sense that you're saying, but you can rule what the army did was with regard to requiring that the appellant's Navy on the roster of recognized guerrillas, it's unconstitutional because she was a woman.

[00:05:21] Speaker 02:
She was per se excluded from recognition.

[00:05:24] Speaker 01:
That's a different issue.

[00:05:25] Speaker 01:
I mean, we're running around.

[00:05:26] Speaker 01:
I mean, the first thing is if you can show an actual US government document that meets all the requirements that are in it, now your Form 23 doesn't say that your client served under the command.

[00:05:42] Speaker 01:
You have to have proof of that, right?

[00:05:44] Speaker 02:
Form 23 does say that, Your Honor.

[00:05:46] Speaker 01:
It shows that she served in the... What page is it in the record, the Form 23 you're talking about?

[00:05:53] Speaker 02:
It's in the appendix at 533 to 536.

[00:06:02] Speaker 02:
But I will say while you're looking for this, that this is a dissent subsere to the fact that the appellate meets the crystal clear, unequivocal

[00:06:14] Speaker 02:
eligibility criteria of the American Recovery and Reinvestment Act.

[00:06:22] Speaker 03:
Is this a question?

[00:06:23] Speaker 03:
I mean, application of law to fact is something that this court does not have jurisdiction to do.

[00:06:30] Speaker 03:
It seems to me that this particular question might be an application of law to fact.

[00:06:36] Speaker 03:
Tell me why you think I'm wrong.

[00:06:38] Speaker 02:
It's not an application of law to fact in the sense that you have constitutional issues before you, so you can look at the facts in the terms of the Constitution.

[00:06:45] Speaker 03:
So you're just making this argument in the context of your constitutional challenge.

[00:06:51] Speaker 02:
In part, yes, but I'm also making the comment or the statement and the argument that the Form 23 meets the eligibility criteria of the Act.

[00:07:04] Speaker 02:
The Act doesn't require that you be recognized or unrecognized.

[00:07:07] Speaker 00:
All it requires... The Form 23 meets the eligibility requirements of the Act.

[00:07:13] Speaker 00:
That may be true, but that's not the case that you're dealing with.

[00:07:21] Speaker 00:
The case that you're dealing with is that the VA secretary has said, based on the Army's

[00:07:30] Speaker 00:
refusal to recognize that Form 23 or anything else, that she doesn't qualify.

[00:07:38] Speaker 00:
What's wrong with that position?

[00:07:40] Speaker 00:
That's the government's position.

[00:07:42] Speaker 02:
Well, the position, I agree.

[00:07:44] Speaker 02:
We can agree to disagree that Form 23 is an official service document.

[00:07:50] Speaker 02:
But we can also agree on... How do we know that?

[00:07:52] Speaker 01:
I mean, you're telling me General MacArthur conceived of this now and

[00:07:59] Speaker 01:
Australia, right?

[00:08:01] Speaker 02:
He issued the order from his headquarters in Australia.

[00:08:05] Speaker 02:
That's, I think, 192 of our appendix.

[00:08:09] Speaker 01:
First, we're looking at the face of the document.

[00:08:10] Speaker 01:
It's affidavit for the personnel, right?

[00:08:14] Speaker 01:
It's filled out by who?

[00:08:17] Speaker 02:
It's filled out by Lieutenant Turk.

[00:08:24] Speaker 01:
Who is Narcisco Erna?

[00:08:27] Speaker 02:
He's a captain in the Philippine Army, and all he did was authenticate the information on here.

[00:08:33] Speaker 01:
He authenticated it.

[00:08:35] Speaker 02:
But it was verified by Lieutenant Peirce.

[00:08:37] Speaker 02:
Well, it was.

[00:08:38] Speaker 03:
Did you just said that she, Turk, is it Turk, filled it out?

[00:08:42] Speaker 03:
That's different.

[00:08:43] Speaker 03:
Verifying it is different than filling it out.

[00:08:46] Speaker 02:
She gave the information for this, which was typed in.

[00:08:50] Speaker 03:
Who's she?

[00:08:51] Speaker 02:
It's the appellant.

[00:08:52] Speaker 03:
That's what I thought.

[00:08:53] Speaker 03:
So the appellant prepared this form, right?

[00:08:55] Speaker 03:
The appellant gave you...

[00:08:57] Speaker 03:
The appellant provided the information, and then it was verified by Lieutenant Turner.

[00:09:03] Speaker 01:
Turk actually swears to it.

[00:09:05] Speaker 01:
Turk's like a notary, right?

[00:09:07] Speaker 02:
Well, he's more of the assembly court officer, but she was interviewed.

[00:09:11] Speaker 01:
Come back.

[00:09:11] Speaker 01:
Who is it you talk to?

[00:09:15] Speaker 01:
This captain who is authenticating is authenticating information that was typed in there for and on behalf of your client.

[00:09:25] Speaker 01:
Isn't that correct?

[00:09:26] Speaker 02:
That's correct, Your Honor, but she was being orally interviewed and it was being typed in by a U.S.

[00:09:31] Speaker 00:
Army personnel.

[00:09:33] Speaker 00:
How do we know that?

[00:09:34] Speaker 00:
Forgive me, but I think you're wasting your time and hours in this case.

[00:09:39] Speaker 00:
Let's assume, for argument's sake, that the Form 23 is an official government document.

[00:09:46] Speaker 00:
So what?

[00:09:48] Speaker 00:
So what?

[00:09:49] Speaker 00:
What do you want us to do about that?

[00:09:50] Speaker 02:
So it meets the terms of the Act, the eligibility criteria.

[00:09:54] Speaker 02:
Okay, I'll agree to that.

[00:09:55] Speaker 02:
So what?

[00:09:57] Speaker 02:
so what then if you if you rely on what the government's argument is that you have to have corroborating evidence for the government's argument is that if the army says no the va says no right the army is not before us only the va is before us but the army was was given was delegated this task by va it's like a principal agent it has to have and they have responsibility and they concluded your form 23 was no good

[00:10:26] Speaker 00:
Now, if we conclude it is good, should we order the Army to rethink it?

[00:10:31] Speaker 00:
Is that what you're asking us to do?

[00:10:32] Speaker 02:
No, Your Honor, I just want to correct one thing you said.

[00:10:35] Speaker 02:
The Army never said Form 23 was no good.

[00:10:37] Speaker 02:
What they said is we have to confirm it with the claimant's name on the reconstructed roster, and she was a woman who was directly prohibited from being on the roster.

[00:10:50] Speaker 00:
So the Army said we're not going to accept the Form 23.

[00:10:54] Speaker 00:
because you're not on the roster.

[00:10:55] Speaker 00:
For whatever reason.

[00:10:56] Speaker 00:
For whatever reason.

[00:10:57] Speaker 01:
You say we like the Form 23, but it won't work because you're not on the roster.

[00:11:01] Speaker 01:
Just to come back to the 23, tell me wherein does the 23 show that this person served under a commander, appointed, designated, et cetera?

[00:11:15] Speaker 01:
The eligibility requires that the eligible person be one who served under commanders

[00:11:23] Speaker 01:
appointed designated by under the authority if you go to five where does the form 23 speak to the question of the your person having served under such a commander under Appendix 534 I won't 534.

[00:11:40] Speaker 02:
Okay, and it gives this all of her it gives the list all of her service Yeah, well, how do I know?

[00:11:48] Speaker 01:
Well, how do I know that Garcia served under a command?

[00:11:51] Speaker 02:
because we gave you information in the brief.

[00:11:54] Speaker 01:
That's not in the Form 23.

[00:11:56] Speaker 01:
You keep saying the Form 23 on its face proves all this.

[00:12:01] Speaker 02:
It does, Your Honor, because Captain Garcia... The Form 23 talks about Captain Garcia.

[00:12:06] Speaker 01:
He could have been totally disconnected from any U.S.

[00:12:09] Speaker 01:
command.

[00:12:11] Speaker 02:
Your Honor, I beg to differ with that kind of an argument because if Lieutenant Carol Turk

[00:12:19] Speaker 01:
verified this and all he did was verify that what in here is being said correctly.

[00:12:25] Speaker 01:
It's like a notary public.

[00:12:27] Speaker 02:
No, it's more than that, your honor.

[00:12:28] Speaker 02:
How do we know?

[00:12:29] Speaker 02:
He was checking the accuracy of what this woman was being interviewed.

[00:12:37] Speaker 01:
The accuracy that she served under Garcia, right?

[00:12:40] Speaker 02:
Yes.

[00:12:40] Speaker 01:
Where's the connection between Garcia and someone who served under a command that was, you know, under the statute?

[00:12:48] Speaker 01:
Well, first of all... You then cite me some other document that is not incorporated by reference in the 23.

[00:12:56] Speaker 02:
You run all the evidences that everybody in the 7th Military District were recognized because they were commanders who were under the direct command of General MacArthur and then General Eichelberger.

[00:13:10] Speaker 02:
So everybody on the island that was

[00:13:13] Speaker 01:
So where do you go if, say, we reject your argument that Form 23 alone satisfies the eligibility requirements?

[00:13:23] Speaker 02:
Then you get deep into the waters of a violation of the appellant's constitutional rights, because the only other piece of information that's being relied upon in contravention of the Act is the roster.

[00:13:36] Speaker 01:
And so what's the problem with being deep in those waters?

[00:13:41] Speaker 02:
It's a violation of her constitutional rights.

[00:13:44] Speaker 01:
Aren't you arguing that you on remand are entitled to have those constitutional arguments adjudicated?

[00:13:50] Speaker 02:
You can do that here, Your Honor, but more importantly, you can find that she meets the eligibility requirements of the Act.

[00:13:58] Speaker 02:
I mean, when you look at the eligibility requirements... I need to ask you a question.

[00:14:02] Speaker 03:
Okay, sure.

[00:14:02] Speaker 03:
One of the arguments that you make in your brief is that 38 CFR 3.203 doesn't even apply here.

[00:14:11] Speaker 03:
and that instead what the VA should have done was look at the eligibility requirements of 1002D.

[00:14:20] Speaker 03:
So tell me why is that?

[00:14:22] Speaker 03:
Why is it that the regulation should be displaced in this circumstance where it is the VA's usual practice when they're looking at whether someone served to rely on the process they have in their regulation?

[00:14:32] Speaker 02:
Because 3.203 is the normal protocol for determining eligibility as to service.

[00:14:39] Speaker 03:
Right.

[00:14:40] Speaker 03:
Why doesn't it apply here?

[00:14:41] Speaker 03:
What language can I rely on in the statute to follow you and say that, oh, you're right.

[00:14:48] Speaker 03:
3.203 doesn't apply here.

[00:14:52] Speaker 02:
D. You could look at D. And you could look at D does not give you any exception.

[00:15:04] Speaker 00:
But how do you prove it?

[00:15:05] Speaker 00:
What are you referring to now?

[00:15:07] Speaker 00:
You're finally getting to.

[00:15:09] Speaker 00:
where your argument should have gone from the beginning.

[00:15:13] Speaker 00:
What is it you're looking at in the statute, and I'm referring now to Section 1002 of 38 U.S.

[00:15:21] Speaker 00:
Code, what is it in that statute that says the VA's Section 3.203 is not the way to determine eligibility?

[00:15:32] Speaker 00:
Is there anything in the statute that says that?

[00:15:37] Speaker 02:
The statute in Section D defines eligible persons, which is different from 3.203.

[00:15:43] Speaker 02:
And the only reference to Title 38.

[00:15:47] Speaker 01:
So look at D, and if you show up at the RRO wanting the benefit of that statute, what do you have to prove to the RRO?

[00:15:57] Speaker 02:
You have to prove that you serve the military forces

[00:16:01] Speaker 02:
that were under the commander's appointed, designated, or subsequently recognized by the commander in chief of Southwest Virginia.

[00:16:08] Speaker 00:
And you think you can prove that?

[00:16:09] Speaker 02:
Yes.

[00:16:10] Speaker 00:
And who should be the deciding authority for that question?

[00:16:16] Speaker 02:
The VA, because the VA had that document.

[00:16:19] Speaker 02:
Not the Army.

[00:16:19] Speaker 02:
That's correct.

[00:16:20] Speaker 02:
It never should have given it to the Army, because it had the document with all that information in there.

[00:16:26] Speaker 00:
But the VA has a rule called

[00:16:29] Speaker 00:
3.203 under which they send everything to the army.

[00:16:35] Speaker 00:
Why isn't that a perfectly appropriate rule?

[00:16:39] Speaker 02:
Because it contravened the intent and purpose and the letter and spirit of the act.

[00:16:44] Speaker 02:
They didn't need to do that.

[00:16:47] Speaker 01:
Somebody has to make the decision that the individual served under the requisite command, right?

[00:16:53] Speaker 02:
That's right.

[00:16:53] Speaker 01:
Somebody has to make that decision.

[00:16:55] Speaker 02:
But it's noteworthy here, Your Honor.

[00:16:57] Speaker 01:
And there is nothing in the... And that question cries out from section D of 1002.

[00:17:07] Speaker 01:
Because I just asked you, what do you have to prove?

[00:17:09] Speaker 01:
You have to prove service under the command.

[00:17:12] Speaker 01:
So the question is, well, how do you prove it?

[00:17:13] Speaker 01:
That's a gap.

[00:17:16] Speaker 01:
That's a question that wasn't answered in the statute.

[00:17:21] Speaker 00:
So there's nothing in the statute that requires, and I'm going to ask the government the same question, is there anything in the statute that requires that the VA use 3.203 in determining her eligibility?

[00:17:37] Speaker 02:
The statute requires that it use D, an only D. That's the problem here.

[00:17:42] Speaker 03:
What about the fact that D refers to served?

[00:17:46] Speaker 03:
It says served and then

[00:17:48] Speaker 03:
Why can't the agency turn to 3.203 to determine what it means by service or service?

[00:17:54] Speaker 02:
Because it has Form 23.

[00:17:56] Speaker 02:
And notably, the VA and the government have not disputed... Who has Form 23?

[00:18:01] Speaker 02:
The VA does.

[00:18:03] Speaker 02:
The VA has Form 23, which they do not dispute with regard to authenticity and accuracy.

[00:18:08] Speaker 02:
There's been no argument whatsoever that they don't believe it's genuine and that they don't believe it's accurate.

[00:18:16] Speaker 01:
And if you... We'll ask the government whether they believe that the document alone satisfies all the requirements.

[00:18:23] Speaker 03:
Can I ask you one more question?

[00:18:24] Speaker 01:
Of course you are.

[00:18:25] Speaker 03:
Which is 1002 I. It talks about recognition of service.

[00:18:31] Speaker 03:
It says the service of a person as described in subsection D is hereby recognized as active military service in the armed forces for the purpose of and to the extent provided in this section.

[00:18:45] Speaker 03:
What do you think this means?

[00:18:48] Speaker 03:
I didn't see you argue it in your brief, and I would have thought you would have.

[00:18:52] Speaker 02:
Well, it's subsumed.

[00:18:54] Speaker 02:
We did refer to that in the brief as well as Jay, but it's subsumed within D. D is absolute.

[00:19:01] Speaker 02:
It's unequivocal.

[00:19:02] Speaker 02:
It's all-inclusive.

[00:19:03] Speaker 02:
Nobody's excluded.

[00:19:04] Speaker 02:
But what does I mean?

[00:19:06] Speaker 03:
What does I mean?

[00:19:07] Speaker 03:
Why is it there?

[00:19:07] Speaker 02:
The purpose of I is that everybody who has served

[00:19:11] Speaker 02:
is deemed to be recognized as having served in the armed forces.

[00:19:15] Speaker 02:
The armed forces being the armed forces of the FARC.

[00:19:18] Speaker 01:
It says recognized as active.

[00:19:20] Speaker 01:
The active is the word that leaps out at you.

[00:19:25] Speaker 02:
Which means active means at the time that they were actively in the service.

[00:19:30] Speaker 01:
Right, but you're still not answering.

[00:19:32] Speaker 01:
Maybe the government will have a better answer as to what purpose, what service does I do under the statute.

[00:19:40] Speaker 00:
I would have thought you might have answered that by saying that the armed forces being referred to there is the armed forces of the United States, which is referred to in D1A.

[00:19:54] Speaker 00:
And that the point of that is, even if you were not actually in the armed forces of the United States, but you were in an organized military force of the government of the Commonwealth of Philippines for the purposes of this statute,

[00:20:10] Speaker 00:
you will be assumed to be an active member of the United States Armed Forces.

[00:20:16] Speaker 00:
I would have thought that would be your answer.

[00:20:18] Speaker 02:
I did say that this was the Armed Forces for the Far East, which included the Armed Forces of the United States.

[00:20:27] Speaker 02:
It gets you the fact that she was a member.

[00:20:29] Speaker 02:
The Armed Forces of the Far East were the Armed Forces of the United States.

[00:20:32] Speaker 01:
You know that if a veteran of a guerrilla service had signed up for Section 107 benefits,

[00:20:40] Speaker 01:
after 1946, they would seem to be not in active service.

[00:20:46] Speaker 02:
Well, the rescission acts, that's what the whole purpose of this act was, was to undo the injustice of the two rescission acts in 1946.

[00:20:53] Speaker 02:
I mean, that's exactly what the purpose of this was, and that's why Senator Inouye made the statements he did about how horribly treated Filipino veterans were, and that this was an attempt.

[00:21:06] Speaker 01:
Well, the object was to provide an additional benefit to Section 107,

[00:21:11] Speaker 02:
Matter language?

[00:21:13] Speaker 02:
No, this was to, these were damages for human suffering per the act.

[00:21:18] Speaker 03:
Your view is that this language in 1002D goes beyond the original Section 107 language.

[00:21:27] Speaker 03:
Is that correct?

[00:21:27] Speaker 03:
Do I understand that correctly?

[00:21:28] Speaker 02:
Yes, you are.

[00:21:29] Speaker 02:
This stands on its own.

[00:21:30] Speaker 02:
Even though it's the exact same language.

[00:21:31] Speaker 02:
Well, it stands on its own, though.

[00:21:33] Speaker 02:
They're using it, but it stands on its own because they're taking these people who were disenfranchised and they're restoring some benefits to them

[00:21:40] Speaker 02:
in the form of the equity compensation fund.

[00:21:43] Speaker 02:
I mean, Senator Inouye, let me just read to you what he said.

[00:21:46] Speaker 02:
I think it's because it was a very short legislative history.

[00:21:50] Speaker 03:
You can read it, but the trouble I have with it is just one senator.

[00:21:53] Speaker 03:
And for me, I need to look at the language of the statute itself as opposed to what one senator said about it.

[00:22:02] Speaker 02:
He was a sponsor.

[00:22:03] Speaker 02:
I'll just say that he said,

[00:22:07] Speaker 02:
These Filipino men served us well.

[00:22:09] Speaker 02:
They died for us.

[00:22:10] Speaker 02:
They got wounded for us.

[00:22:11] Speaker 02:
And they deserve recognition.

[00:22:13] Speaker 02:
And that's what the Act is trying to do is to give them recognition.

[00:22:15] Speaker 03:
I understand the problem I'm having.

[00:22:16] Speaker 03:
And I want you to help me.

[00:22:17] Speaker 03:
I do.

[00:22:18] Speaker 02:
I understand that.

[00:22:20] Speaker 03:
The problem I'm having is that the Section 107 language is the same as the Section 1002D language.

[00:22:29] Speaker 03:
So how is it that you distinguish the two?

[00:22:31] Speaker 03:
I mean, obviously, Section 107 is talking about people who are on the roster.

[00:22:36] Speaker 03:
How is it that Section 1002D would include somebody who wasn't on the roster?

[00:22:43] Speaker 02:
Because Section D is unequivocal and all-inclusive.

[00:22:46] Speaker 02:
It doesn't talk about the roster.

[00:22:49] Speaker 02:
The Act doesn't talk about the roster.

[00:22:50] Speaker 03:
Well, 107 doesn't talk about the roster either.

[00:22:53] Speaker 02:
Understood.

[00:22:53] Speaker 01:
But the fact of the matter is that we all know... They have the same problem with 107 as they have with this.

[00:22:58] Speaker 01:
that they had to be able to have a definition.

[00:23:00] Speaker 01:
They have to be able to find some way to tell you whether a particular individual served under the right command.

[00:23:08] Speaker 01:
And if you did, then you're home free.

[00:23:11] Speaker 01:
And under 107, they chose to say, we're going to have your Form 23 serve to show where you served, under whom you served, and the rest.

[00:23:21] Speaker 01:
But we can't be exactly certain you were in that command.

[00:23:24] Speaker 01:
You were serving in that command.

[00:23:27] Speaker 01:
And so they went on and interviewed people and whatnot, right?

[00:23:29] Speaker 01:
And that's how they built up the roster.

[00:23:31] Speaker 02:
Well, the roster, don't forget, all the rosters were destroyed or lost.

[00:23:35] Speaker 02:
And when they were put together, they were limited.

[00:23:37] Speaker 01:
They were screened down to a certain number.

[00:23:39] Speaker 01:
They rebuilt the roster and then 48th and shut it down.

[00:23:41] Speaker 01:
Nobody else can get on the roster, right?

[00:23:43] Speaker 02:
Right.

[00:23:44] Speaker 01:
But the roster, I mean- The 107 benefits are locked down, right?

[00:23:47] Speaker 02:
And no woman could ever get on the roster at any time.

[00:23:49] Speaker 01:
Well, I understand.

[00:23:50] Speaker 01:
Unless she was a nurse.

[00:23:51] Speaker 01:
That's a different issue.

[00:23:53] Speaker 02:
Unless she was a nurse.

[00:23:54] Speaker 02:
A registered nurse, by the way, yes.

[00:23:57] Speaker 01:
So what happens is the Congress comes along with this statute and I think you're saying for the same exact same group of people that they created 107 for, they wanted to have an additional benefit.

[00:24:08] Speaker 02:
It's not an additional benefit.

[00:24:10] Speaker 02:
This is a benefit to go to everybody who was foreclosed from benefits.

[00:24:15] Speaker 02:
That's the whole purpose of this act.

[00:24:18] Speaker 02:
It's not augmenting something, it's not in addition to

[00:24:24] Speaker 02:
And contrary to the government's argument, which we have only received one out of seven benefits, you couldn't get this?

[00:24:30] Speaker 02:
You could still get this.

[00:24:32] Speaker 02:
This is for anybody who applies.

[00:24:35] Speaker 02:
There's nobody excluded from this.

[00:24:38] Speaker 02:
Nowhere in here does it say, and by the way, when we said everybody, we meant just these people and not these people.

[00:24:45] Speaker 02:
Anybody who applies, who meets the criteria, qualifies and deserves and is entitled to

[00:24:53] Speaker 02:
And I will just say the argument with regard that government made in its opposition brief to this court was for the first time raised this issue about the two benefits classes and only one is eligible and so on and so forth.

[00:25:07] Speaker 02:
So in addition to waiver, you've got that issue.

[00:25:10] Speaker 02:
But I think if you look at D and then you look at I in conjunction with D and I just confirms what D says and it also follows the legislative history, it's absolutely crystal clear that

[00:25:22] Speaker 02:
3.203 does not apply.

[00:25:25] Speaker 02:
And the Army determination is not necessary and is not needed because it's also faulty.

[00:25:30] Speaker 02:
And the VA should have found that the Form 23 qualified the appellant for this benefit.

[00:25:36] Speaker 03:
Mr. Mastriani, I think we're going to hear from the government now.

[00:25:39] Speaker 03:
And we will restore your rebuttal time.

[00:25:41] Speaker 02:
Thank you very much.

[00:25:50] Speaker 04:
Good morning, Your Honors.

[00:25:51] Speaker 04:
May it please the court?

[00:25:52] Speaker 00:
Do we refer to you as Miss Moses or Miss Jana Moses?

[00:25:58] Speaker 00:
Miss Moses.

[00:25:58] Speaker 00:
Miss Moses?

[00:26:00] Speaker 00:
Yes, sir.

[00:26:00] Speaker 00:
I couldn't get Mr. Mastroianni to play with me on this one, but maybe you will.

[00:26:05] Speaker 00:
It seems to me that his problem, his client's problem, is to somehow get the secretary of the VA to decide her eligibility under D.

[00:26:22] Speaker 00:
2D, independently of the Army's usual way of doing business.

[00:26:31] Speaker 00:
The Army's usual way of doing business is to look in their files and their records, including that famous document with all the names on it.

[00:26:43] Speaker 00:
That's part of the Army's work, isn't that correct?

[00:26:47] Speaker 00:
Yeah, sure.

[00:26:48] Speaker 00:
That's, the VA doesn't have a, what is the name of that thing again?

[00:26:51] Speaker 04:
It's called the... The affidavit?

[00:26:54] Speaker 00:
Is that what you're... No, the list.

[00:26:56] Speaker 00:
The roster.

[00:26:57] Speaker 00:
Oh, the roster, yes.

[00:26:58] Speaker 00:
That's not, the roster is not part of the VA's database.

[00:27:05] Speaker 00:
It's part of the Army's database, right?

[00:27:07] Speaker 04:
Correct, Your Honor.

[00:27:08] Speaker 00:
The VA says to the Army, you look in your databases and tell us whether she is qualified for benefits.

[00:27:17] Speaker 00:
The Army says, no, she's not on our roster and we don't know who she is.

[00:27:22] Speaker 00:
Whatever the Army said, it ended up to a no.

[00:27:25] Speaker 00:
The VA then says, sorry, do I have your case right?

[00:27:31] Speaker 00:
If the VA says no, I mean, if the Army says no, the VA says no, because that's what 3.203 does.

[00:27:40] Speaker 00:
Is that correct?

[00:27:42] Speaker 04:
Largie, Your Honor, I just want to correct one thing.

[00:27:44] Speaker 04:
Yeah.

[00:27:46] Speaker 04:
does with respect to seeking verification of military service from the Army is just seeking verification.

[00:27:53] Speaker 04:
It's not asking the Army whether the claimant is eligible for whatever benefits it's claiming.

[00:28:00] Speaker 01:
It's the who.

[00:28:01] Speaker 01:
I'm sorry, Your Honor.

[00:28:02] Speaker 01:
When someone shows up at the RO and says, I want some benefits, somebody has to make a determination that you were connected to the service.

[00:28:11] Speaker 04:
Yes, Your Honor.

[00:28:12] Speaker 01:
And the VA doesn't have any way to do that because the VA doesn't know whether I served or didn't serve.

[00:28:18] Speaker 01:
Now I could tell them I did, but they don't have any way to verify it, right?

[00:28:21] Speaker 00:
Right.

[00:28:21] Speaker 00:
So they go to the Army for verification.

[00:28:24] Speaker 01:
Oh, and typically in a case of a U.S.

[00:28:27] Speaker 01:
citizen who's been serving in the Army and got hurt in Vietnam or something, they'll look and they'll find that the person was discharged.

[00:28:34] Speaker 01:
And the discharge record shows the dates of service and whatnot, and that deals with the whole problem, right?

[00:28:40] Speaker ?:
Right.

[00:28:40] Speaker 01:
In this case, with the people who'd served in the Philippines, since they hadn't actually served in the US military, they don't have a US discharge.

[00:28:48] Speaker 01:
So somebody had to figure out, how are we going to deal with these people that Congress created a right for before 46, they were coming in anyhow, right?

[00:28:57] Speaker 05:
Yes.

[00:28:58] Speaker 01:
And so the secretary says, oh my goodness, how am I going to do this verify?

[00:29:02] Speaker 01:
I don't know.

[00:29:04] Speaker 01:
Who has the records?

[00:29:06] Speaker 01:
VA doesn't.

[00:29:07] Speaker 01:
So they make 3.203, and they say, well, go over to the military and ask them if they have the records.

[00:29:14] Speaker 01:
Yes, Your Honor.

[00:29:14] Speaker 01:
All seems fairly reasonable as a matter of proving what I call the who.

[00:29:19] Speaker 01:
Right?

[00:29:20] Speaker 04:
Yes, Your Honor.

[00:29:20] Speaker 00:
So Mr. Mastroianni's problem, then, is to say either to go back to the Army and say, oh, you're mistaken, but that's not why we're here.

[00:29:33] Speaker 00:
We're here because he's arguing the VA

[00:29:36] Speaker 00:
I think he's arguing, although it was hard to find out from him, I think he's arguing that this is not a case in which the secretary should have gone to the army for verification.

[00:29:50] Speaker 00:
Why?

[00:29:50] Speaker 00:
Because 3.203 doesn't apply to this statute.

[00:29:57] Speaker 00:
Shouldn't that be his case?

[00:30:00] Speaker 04:
Well, I'm not sure if it should be his case.

[00:30:02] Speaker 04:
That's what he's saying.

[00:30:04] Speaker 04:
To the extent that his argument is that 3.203 doesn't apply, the statutory language specifically says that the Secretary shall administer the fund consistent with its existing regulations and also

[00:30:24] Speaker 04:
shall apply the definitions in Section 101.

[00:30:26] Speaker 01:
So I think we have his argument.

[00:30:28] Speaker 00:
The application for the claim shall contain such information and evidence as the secretary may require.

[00:30:37] Speaker 00:
That's what the statute says.

[00:30:39] Speaker 04:
Yes.

[00:30:39] Speaker 00:
Is there anything in that statute that refers to the VA's Section 3.203 as the appropriate criteria?

[00:30:51] Speaker 00:
It's a yes or a no.

[00:30:53] Speaker 04:
No, there's nothing that specifically refers to that.

[00:30:55] Speaker 00:
Okay, so there's nothing specifically in the statute that makes the VA look at the Army's records, right?

[00:31:03] Speaker 04:
Well, paragraph J does say that the Secretary has to administer this fund in accordance with its existing regulations, which are, it's paragraph J2, Your Honor.

[00:31:16] Speaker 04:
The Secretary shall administer the provisions of the section in a manner consistent with the applicable provisions of Title 38, United States Code, and other provisions of law, and shall apply the definitions of Section 101.

[00:31:28] Speaker 01:
And in connection with previous benefits that were being sought out of the Philippine thing, the applicable provision was 3.203.

[00:31:36] Speaker 04:
Yes, Your Honor.

[00:31:37] Speaker 04:
And Congress was aware of the historical practices of the Army in terms of how it verifies service.

[00:31:44] Speaker 01:
So just so we get it clear, because the argument's going all over the place, partly because of my fault of interrupting.

[00:31:51] Speaker 01:
And we're obviously interested in this case, in case you haven't figured that out.

[00:31:55] Speaker 01:
I think Ms.

[00:31:56] Speaker 01:
Reyes is making an argument that she says, I don't think 3.203 ought to apply at all, for whatever reason.

[00:32:04] Speaker 01:
It shouldn't apply at all.

[00:32:06] Speaker 01:
But she says, if it does apply, I think it's been, as applied, it's unconstitutional.

[00:32:11] Speaker 01:
Right?

[00:32:11] Speaker 04:
Yes.

[00:32:12] Speaker 01:
And as to that argument,

[00:32:14] Speaker 01:
as it's unconstitutional, the CAVC said, well, that's beyond our jurisdiction.

[00:32:19] Speaker 01:
We can't reach that.

[00:32:20] Speaker 01:
And that has to do on whether or not there's an exhaustion of remedies, et cetera, as you know, the Maggot case, Ledford and then Maggot.

[00:32:29] Speaker 01:
And so it seemed pretty clear to me that the notion that they couldn't reach the constitutional argument because it hadn't been raised before the board, that's not jurisdictional.

[00:32:40] Speaker 01:
So that argument, we can come to it later still alive.

[00:32:43] Speaker 01:
So what does 1002I, recognition of service, is in the statute?

[00:32:55] Speaker 01:
And what they're saying as to the service for these people for this statute is deemed to be active service.

[00:33:01] Speaker 01:
As we know, section 107, adopted in 46, on purpose said, it's not active service.

[00:33:08] Speaker 01:
So what is I telling us?

[00:33:10] Speaker 01:
What does it do in this statute?

[00:33:14] Speaker 04:
Section or paragraph I is Allowing for additional benefits for the one section 107 a group a group that already I Is simply called recognition of service?

[00:33:30] Speaker 01:
Yes, the service as described in D, which is also the service under 107 Right exactly same definition is hereby recognized as active service

[00:33:44] Speaker 01:
Now, what's that getcha?

[00:33:47] Speaker 01:
What do you take to the bank after you've been told, Mrs. Rae's told, that her service was active, assuming that she's satisfied?

[00:33:55] Speaker 00:
With all due respect, Your Honor, let's read the whole sentence.

[00:33:58] Speaker 00:
Recognized as active military service in the armed forces.

[00:34:04] Speaker 00:
What armed forces are we talking about, Counsel?

[00:34:08] Speaker 04:
My understanding is the armed services of the United States.

[00:34:12] Speaker 00:
Armed forces of the United States.

[00:34:14] Speaker 00:
It's the only armed forces referred to in the statute.

[00:34:17] Speaker 00:
I think you're quite right.

[00:34:19] Speaker 00:
It's the armed forces of the United States.

[00:34:22] Speaker 00:
So what that section does is make someone who qualifies under D

[00:34:31] Speaker 00:
eligible person under D, a member of the United States Armed Forces, for whatever purposes.

[00:34:39] Speaker 00:
But notice it says, to the extent provided in this section.

[00:34:44] Speaker 04:
Yes, your honor.

[00:34:45] Speaker 00:
That's a puzzle.

[00:34:47] Speaker 04:
Can you tell us what's it do?

[00:34:50] Speaker 04:
What's it get you?

[00:34:52] Speaker 04:
It gets you payment from the Philippine Veterans Fund for the purpose of this section, which only pertains to the Philippine Veterans Fund.

[00:35:01] Speaker 04:
It gets someone you wouldn't have gotten paid without it.

[00:35:05] Speaker 01:
If you took this out, please, if you took this out, you wouldn't get paid.

[00:35:13] Speaker 01:
Of course you would.

[00:35:15] Speaker 01:
What it's saying is if you are a one, a subsection D person, if you can prove that you served under the right command, right.

[00:35:23] Speaker 01:
In the Philippines gorilla, then you're recognized as active service.

[00:35:28] Speaker 01:
but just for purposes as provided for in this section.

[00:35:32] Speaker 01:
So it's obviously doing something in the section.

[00:35:37] Speaker 01:
One argument is that it's supplanting 3.203.

[00:35:40] Speaker 01:
I don't know, Your Honor.

[00:35:45] Speaker 01:
Supplanting it?

[00:35:47] Speaker 01:
Why are you recognizing them as active service?

[00:35:51] Speaker 04:
Well, there may be other benefits to which the veteran, if they're considered active duty, may be entitled to.

[00:35:57] Speaker 04:
I thought you just said this is only giving them the right to the $15,000 in the fund.

[00:36:01] Speaker 04:
I mean, if we're assuming that if it's not just limited to the... Read the words.

[00:36:13] Speaker 01:
It is designating you as active service in the armed services of the United States.

[00:36:21] Speaker 01:
for purposes of this section, not for any other purpose.

[00:36:26] Speaker 01:
And this section is providing this award, right?

[00:36:30] Speaker 01:
And it's only to that extent.

[00:36:33] Speaker 04:
I think I understand, Your Honor.

[00:36:34] Speaker 04:
And this may be a reasonable explanation.

[00:36:39] Speaker 04:
I think it's limiting the claimant to the payment instead of whereas when

[00:36:48] Speaker 04:
Let's say someone served in the US military.

[00:36:51] Speaker 04:
They were discharged.

[00:36:51] Speaker 04:
They have a DD-214.

[00:36:53] Speaker 04:
They would be entitled to all of the benefits that other veterans would be entitled to.

[00:36:59] Speaker 04:
And what this paragraph is saying, they are recognized as active military service for the purpose of this section, for the purpose only of administering this fund.

[00:37:09] Speaker 01:
Why are they treated differently than the 107 claimants who are on purpose deemed to be not active?

[00:37:15] Speaker 04:
My understanding is that 107 claimants are entitled to some... Yeah, but you read the definition of a 107 claimant.

[00:37:23] Speaker 01:
They are told that they are people who did not have active service, did not have active service.

[00:37:29] Speaker 01:
And so obviously there's a reason to distinguish the folks under this 102 statute from the 107 people, because these folks are being told that if they satisfy the definition, they are active.

[00:37:43] Speaker 01:
but only for the purpose of this, for the payment of this fund.

[00:37:46] Speaker 01:
So it has to give them something.

[00:37:48] Speaker 01:
It's giving them something additional that they wouldn't otherwise have for getting the money under this statute.

[00:37:55] Speaker 01:
So I'm saying to myself, why doesn't that mean that you don't need 3.203?

[00:38:01] Speaker 01:
It's supplanting it.

[00:38:04] Speaker 04:
Because the VA is still responsible for

[00:38:08] Speaker 04:
confirming the military service or verifying the military service of the claimant.

[00:38:13] Speaker 03:
Can I ask you something?

[00:38:14] Speaker 03:
I'm going to just divert for a second, because you said something earlier, where you said under 3.203 that even though the NPRC might verify or not verify someone's service, that still isn't determining whether somebody is eligible or not.

[00:38:30] Speaker 03:
I thought you were trying to say something like the VA will do some sort of other determination.

[00:38:36] Speaker 03:
I'd like to know what that is.

[00:38:37] Speaker 04:
Well, typically when a claimant files a claim, the verification of their military service is one of a few factors that need to be satisfied.

[00:38:48] Speaker 03:
I'm just looking at the eligibility determination.

[00:38:50] Speaker 03:
Just to be clear, I don't want to talk about the VA's general procedure.

[00:38:54] Speaker 03:
I really specifically want to ask what you're referring to with respect to the particular statuted issue here and what procedure do they undertake.

[00:39:04] Speaker 03:
going to the NPRC under 3.203.

[00:39:07] Speaker 04:
I understand, Your Honor.

[00:39:09] Speaker 04:
I will clarify.

[00:39:10] Speaker 04:
So for the purposes of the Philippine Veterans Fund, essentially, VA is verifying with the service department, does this person have qualifying military service, yes or no?

[00:39:26] Speaker 04:
And the Army, I'm sorry, VA, is bound by what the

[00:39:35] Speaker 04:
the service department's determination.

[00:39:36] Speaker 04:
So that is in effect.

[00:39:38] Speaker 04:
Yes, in this type of case, yes.

[00:39:40] Speaker 00:
That's what you said in your brief was that the VA treats itself as bound by the Army's determination.

[00:39:47] Speaker 04:
And this court's precedent in Soria said that the Army's or whatever military service department's determination with respect to service is conclusive in binding

[00:39:59] Speaker 04:
on VA.

[00:40:00] Speaker 00:
We have a non-precedential opinion that says that.

[00:40:03] Speaker 00:
That's not binding on anything.

[00:40:05] Speaker 04:
Soria, were you referring to maybe GO, Your Honor?

[00:40:09] Speaker 04:
But Soria is, I believe, is a published decision?

[00:40:12] Speaker 03:
Yes, it is.

[00:40:13] Speaker 03:
But Soria was not based on the 1002D section at issue here, correct?

[00:40:20] Speaker 04:
It did not address section B, no, Your Honor.

[00:40:22] Speaker 00:
So it's not precedent for this issue.

[00:40:25] Speaker 04:
with respect to whether the military service department's determinations are binding on VA.

[00:40:30] Speaker 04:
Yes, that's quite clear.

[00:40:33] Speaker 00:
Well, that assumes that nothing in this statute permits the VA to escape from its own booby trap.

[00:40:45] Speaker 04:
Right.

[00:40:45] Speaker 01:
But again, then there would really be no... Well, if the Veterans Administration determined that the

[00:40:52] Speaker 01:
determination made by the military violated constitutional rights, the Secretary would have some authority to do that.

[00:40:59] Speaker 04:
I'm sorry, Your Honor.

[00:41:00] Speaker 01:
Well, let's walk the case through the constitutional arguments.

[00:41:04] Speaker 01:
Let's say, for example, we point out that the CABC was wrong when it said it was jurisdictionally to stop from reading the constitutional arguments.

[00:41:13] Speaker 01:
That's a non-no-brainer.

[00:41:15] Speaker 01:
They were not jurisdictionally stopped.

[00:41:17] Speaker 01:
And so we apply the tests in MAGOT, and we reach the count as independently, which we're allowed to do.

[00:41:23] Speaker 01:
And we reach the conclusion that the VA should have listened to and adjudicated the constitutional questions here.

[00:41:30] Speaker 01:
And the constitutional question is that 3.203 is unconstitutional and is applied if you use it to bar the benefit because of the gender discrimination.

[00:41:42] Speaker 01:
And so we send this case back, and it gets adjudicated.

[00:41:45] Speaker 01:
And if the CABC reaches the conclusion that there was a violation of the Constitution, there's going to be some remedy, right?

[00:41:53] Speaker 01:
And there's nothing stops the CABC from hypothetically deciding the constitutional issue in favor of Reyes, right?

[00:42:02] Speaker 04:
Well, the Veterans Court was correct in determining that there is really no legitimate constitutional challenge to the Secretary's policy or rules.

[00:42:11] Speaker 04:
All of the arguments that Ms.

[00:42:13] Speaker 04:
Reyes has raised in her brief

[00:42:15] Speaker 04:
relates specifically to the Army's policy and the way to fix whatever imperfections there may be with this cluster.

[00:42:22] Speaker 03:
Our question was, what if the VA knows that there's some constitutional challenge?

[00:42:28] Speaker 03:
They know there's a constitutional impropriety with the procedure that's undertaken in 3.203.

[00:42:33] Speaker 00:
Doesn't the Secretary have some responsibility for using constitutional criteria in making his decisions?

[00:42:46] Speaker 00:
With respect to VA claims?

[00:42:48] Speaker 00:
The VA secretary, if he uses X as the criteria for making a decision, and it turns out that X is unconstitutional, doesn't that vitiate the secretary's decision?

[00:43:06] Speaker 04:
No, because the secretary is following its, again, longstanding precedent that it shall

[00:43:14] Speaker 04:
verify service with the service department.

[00:43:17] Speaker 01:
What happens hypothetically, just hypothetically, if it comes to the attention of the secretary that the service department on purpose is, say, refusing to grant a discharge certificate to black veterans?

[00:43:34] Speaker 01:
All of a sudden, the RARO wakes up and says, oh my God, we don't have any African Americans in here anymore.

[00:43:38] Speaker 01:
I wonder why not?

[00:43:40] Speaker 01:
And the answer is, well, guess what?

[00:43:42] Speaker 01:
Folks over in the Defense Department decided those folks, we're just not going to, we're just going to snuff them.

[00:43:48] Speaker 01:
The secretary is going to go ballistic.

[00:43:50] Speaker 01:
He's going to say, you can't do that.

[00:43:52] Speaker 01:
When the secretary gave to the Defense Department authority to do something, delegated authority, and you would think whoever's delegating authority has the power to make certain that the delegate behaves properly.

[00:44:08] Speaker 01:
Right?

[00:44:10] Speaker 01:
And that's all he's talking about here is to say he thinks that when the military turned him down, they did it, when they rejected the evidence he gave for a reason that said he couldn't qualify for X and it was unconstitutional to put that requirement.

[00:44:30] Speaker 01:
That's what he's arguing.

[00:44:32] Speaker 04:
I understand.

[00:44:33] Speaker 04:
But that constitutional challenge to the discriminatory practices of the army

[00:44:39] Speaker 04:
can be brought to the district court.

[00:44:40] Speaker 04:
He can bring a disciplinary claim.

[00:44:41] Speaker 01:
But that's what you're saying.

[00:44:42] Speaker 01:
And also, people raise constitutional challenges at the BVA all the time.

[00:44:47] Speaker 01:
And the BVA usually says, well, we don't have the authority to do that.

[00:44:51] Speaker 01:
We don't know what we're doing.

[00:44:53] Speaker 01:
And then the case comes up to the CAVC, and they raise the constitutional question.

[00:44:57] Speaker 01:
And sometimes the CAVC says, well, that's true.

[00:45:01] Speaker 01:
You had a duty to exhaust at the BVA, even though they were hopeless and couldn't do anything.

[00:45:05] Speaker 01:
Now we'll take your argument.

[00:45:07] Speaker 01:
CAV Seeker's constitutional arguments all the time, right?

[00:45:11] Speaker 01:
It does, and it didn't say to me... And so why not here?

[00:45:16] Speaker 01:
When they're saying, dear Mr. Secretary, it will come as a great shock to you to know that the military in exercising your delegated authority is violating the constitution.

[00:45:27] Speaker 01:
Don't you want to know about that, Secretary?

[00:45:30] Speaker 04:
Well, this court in Talin has already looked at whether

[00:45:36] Speaker 04:
certain benefits that are administered to Philippine national folks, individuals, or a Philippine national origin are allowed to be considered active duty, whether they're... This isn't a national origin or constitutional challenge.

[00:45:57] Speaker 01:
Can I ask a different question if you're... Did you get the answer?

[00:46:01] Speaker 00:
You are.

[00:46:01] Speaker 01:
Well, I think what we're trying to do is to figure out whether there's any

[00:46:06] Speaker 01:
a remandable or reversible error in this case.

[00:46:10] Speaker 00:
I wasn't clear about that dialogue, but it seemed self-evident that if the VA secretary makes a decision based on unconstitutional criteria, the decision is unconstitutional.

[00:46:26] Speaker 00:
But let me ask you a slightly different question.

[00:46:29] Speaker 00:
You put a lot of reliance on

[00:46:33] Speaker 00:
J2, the secretary shall administer the provisions, right?

[00:46:38] Speaker 00:
You pointed that out to us a couple of times.

[00:46:41] Speaker 00:
But let me just remind you of the last phrase in J2, except to the extent otherwise provided in this section.

[00:46:52] Speaker 00:
Let's assume we were to decide that this section provides a direct responsibility on the part of the VA secretary to

[00:47:03] Speaker 00:
decide these cases on the best evidence available, which does not use 3.203 exclusively.

[00:47:15] Speaker 00:
He may go to 3.203 and ask the Army for their information.

[00:47:20] Speaker 00:
But let's assume we construe the statute as saying, Mr. Secretary, look at all the evidence in these cases.

[00:47:30] Speaker 00:
treat the Army's view as only one item of evidence.

[00:47:35] Speaker 00:
Is that a possibility?

[00:47:37] Speaker 04:
Well, Your Honor, that would contravene Section Z. Negative.

[00:47:43] Speaker 00:
That would negative the goal and that other case.

[00:47:47] Speaker 04:
Sorry.

[00:47:48] Speaker 00:
Which had nothing to do with the statute, so I'm not impressed with that case.

[00:47:53] Speaker 00:
That would negative the obligation that he's bound, wouldn't it?

[00:47:58] Speaker 00:
We can unbind them in that way.

[00:48:01] Speaker 04:
Well, but the statute also says that the application shall contain what evidence that the secretary requires.

[00:48:09] Speaker 04:
And in this case, the secretary is saying we require verification from the military service department.

[00:48:17] Speaker 04:
And the military service department has rendered a negative determination even after.

[00:48:21] Speaker 03:
I have a question for you.

[00:48:22] Speaker 03:
It says the application for the claim shall contain.

[00:48:25] Speaker 03:
That's the application made by the applicant.

[00:48:27] Speaker 03:
How is the applicant, is the process that the applicant has to first get the certification and then go to you?

[00:48:33] Speaker 03:
I thought that's not how the process worked.

[00:48:39] Speaker 04:
I mean, I'm not exactly sure of all the components that go into the application itself, but what happened in this case was that once you, I believe once Ms.

[00:48:49] Speaker 04:
Reyes applied, sometime during various times, I believe it was at least three times when

[00:48:56] Speaker 04:
The VA submitted evidence that Ms.

[00:49:00] Speaker 04:
Reyes herself provided saying, this is my evidence that I served, and this is qualifying military service.

[00:49:07] Speaker 04:
They provided all of that to the Army and to the NPRC, both of which returned negative determinations.

[00:49:14] Speaker 03:
What I'm confused about is you're relying on, and I'm sorry to hijack your line of questions.

[00:49:18] Speaker 03:
I'll go back to you.

[00:49:19] Speaker 03:
It says the application for the claim shall contain such information and evidence as the secretary may require.

[00:49:25] Speaker 03:
But you're referring to some evidence that isn't even something that the claimant can submit.

[00:49:30] Speaker 03:
How can that provide the answer to Judge Plager's question?

[00:49:34] Speaker 04:
Well, the applicant can provide evidence of the dates that they served or the unit under which they served.

[00:49:41] Speaker 04:
There is some evidence that they could provide in support of the claim.

[00:49:44] Speaker 00:
Did the secretary accept?

[00:49:45] Speaker 00:
I thought you all said, we're not going to accept any of that.

[00:49:49] Speaker 00:
The CAVC said, we're not going to accept any of that.

[00:49:53] Speaker 00:
other evidence, only the Army's evidence.

[00:49:56] Speaker 00:
Isn't that what the CAVC said?

[00:49:58] Speaker 00:
That you all, that was your position.

[00:50:01] Speaker 04:
The evidence is used to help search the records to determine whether the person has qualifying services.

[00:50:08] Speaker 00:
So it's helpful to... But the VA secretary never saw that evidence.

[00:50:13] Speaker 00:
The VA secretary never personally saw the AGO Form 23, did he?

[00:50:18] Speaker 04:
Yes.

[00:50:19] Speaker 04:
And in the... He did?

[00:50:21] Speaker 04:
Yes, Your Honor.

[00:50:22] Speaker 04:
In the statement of the case,

[00:50:24] Speaker 04:
at appendix page 434, the VA discusses the affidavit and discusses some of the other evidence that was submitted and concluded that it did not qualify for, I'm sorry, it did not meet the eligibility criteria.

[00:50:48] Speaker 04:
for qualifying military service.

[00:50:50] Speaker 00:
That was because the Army said no.

[00:50:52] Speaker 00:
That's your position in your brief.

[00:50:55] Speaker 00:
Your position in your brief is unquestioned and absolutely clear.

[00:51:01] Speaker 00:
The VA can't give something that the Army said no to, right?

[00:51:09] Speaker 00:
Yes.

[00:51:09] Speaker 00:
That is your position.

[00:51:11] Speaker 04:
Yes.

[00:51:12] Speaker 00:
So even if, and the fact it says the VA saw this, that doesn't tell me whether the secretary

[00:51:18] Speaker 00:
made the decision with all of that evidence in front of them, I'd like to know what the VA secretary actually decided.

[00:51:28] Speaker 00:
What he actually decided, according to your brief, is that an army said no, and that was the end of the case because he's bound by the army's no.

[00:51:40] Speaker 04:
Yes, as it relates to a qualifying military service.

[00:51:44] Speaker 00:
It relates to eligibility.

[00:51:45] Speaker 00:
That is the government's position.

[00:51:50] Speaker 00:
The government position is that the service department... If the Army didn't like the Form 23, the VA didn't like it either.

[00:52:02] Speaker 00:
Is that fair?

[00:52:03] Speaker 00:
I don't want to be unfair to you, Ms.

[00:52:05] Speaker 00:
Moses.

[00:52:05] Speaker 00:
Is that fair to say if the Army didn't like the Form 23, the VA didn't like it either?

[00:52:12] Speaker 04:
If the Army concluded that in looking at the form that it did not certify military service, in addition to all of the other evidence, and the ultimate answer was no, this person does not have qualifying military service, the VA relied on the Army's decision in that regard.

[00:52:32] Speaker 00:
That was what the Secretary meant when he said, the application for the claim shall contain such information and evidence as the Secretary may require

[00:52:42] Speaker 00:
And the answer is, what does the Army think?

[00:52:47] Speaker 04:
What does the Army have to say about verifying your service?

[00:52:50] Speaker 04:
Yes.

[00:52:50] Speaker 00:
OK.

[00:52:51] Speaker 01:
That's very clear.

[00:52:52] Speaker 01:
But in particular, in this case, the fly in the ointment was not the Form 23.

[00:52:57] Speaker 01:
It was the absence of presence on the roster.

[00:52:59] Speaker 01:
Isn't that correct?

[00:53:01] Speaker 01:
We don't have any reason to believe that the folks over on the military side took issue with what's in the affidavit.

[00:53:09] Speaker 01:
there was there's nothing in the record that shows that they said there's a two-part test you've got if you provide the affidavit and you're on the roster then we're gonna say yes right the affidavit provides information to help the army determine what I understand that but I mean it was a two-part test at the body that they have that the records were sent to you because there hadn't been a discharge document and the test they were using was do you have a 23 and are you on the roster

[00:53:40] Speaker 04:
Or it could be any other information also.

[00:53:42] Speaker 04:
But in this case, it was Form 23 and some other documents as well.

[00:53:45] Speaker 03:
But isn't the key, like these documents that are provided, then give the information that's helpful to determine whether or not somebody's on the roster?

[00:53:55] Speaker 03:
I mean, it seems as if really it's coming down to whether somebody's on the roster or not.

[00:53:59] Speaker 03:
Is that correct?

[00:54:00] Speaker 03:
Yes, Your Honor.

[00:54:01] Speaker 03:
That was correct.

[00:54:03] Speaker 03:
Are you aware of any cases in which the agency or the board

[00:54:08] Speaker 03:
has allowed Filipino civilian guerrillas during World War II to obtain this one-time benefit, notwithstanding the fact that they're not on the roster.

[00:54:18] Speaker 03:
I am not aware of a case in which the Army has verified service.

[00:54:23] Speaker 03:
I thought there was maybe one.

[00:54:25] Speaker 04:
They're not on the list.

[00:54:28] Speaker 03:
It's Pablo, Enrique Pablo.

[00:54:32] Speaker 03:
It's a Board of Veterans Appeals case, docket number 10-27727.

[00:54:38] Speaker 03:
Not exactly sure from this opinion exactly what records were submitted to the board in this case.

[00:54:47] Speaker 03:
But in this case, I believe that the claimant was not on the reconstructed roster, but was able to provide enough information where the board actually looked beyond the roster.

[00:55:03] Speaker 04:
Your Honor, I'm not familiar with that case.

[00:55:06] Speaker 04:
It wasn't discussed in our briefing.

[00:55:08] Speaker 04:
We can offer supplemental briefing on that point.

[00:55:12] Speaker 04:
I'm just not familiar with it.

[00:55:14] Speaker 04:
I just was curious as to whether there was different treatment of different people.

[00:55:18] Speaker 04:
As far as we know now, that the VA relies upon the military service department's determination in determining whether the person has qualifying military service, especially for these cases because

[00:55:33] Speaker 04:
as your honors have pointed out, they don't have the typical documentation that most claimants would have, like a DD-214.

[00:55:39] Speaker 01:
Do any of these cases settle?

[00:55:45] Speaker 04:
No?

[00:55:47] Speaker 04:
Do you have any of them?

[00:55:48] Speaker 01:
I'm not certain if the government really wants to spend a lot of taxpayers' money on constitutional adjudication.

[00:55:55] Speaker 01:
I don't know whether there are circumstances in some cases where the government might say, well, we'll throw the cards in, we'll settle them.

[00:56:02] Speaker 01:
I just don't know whether in the context of this fund, because people have.

[00:56:06] Speaker 01:
This case that the presiding judge cited to you is in the legislative history in one of those set of hearings as an appendix.

[00:56:14] Speaker 01:
And it's a circumstance in which a single veteran's judge at the BVA allowed Filipino to get access to the fund without being able to show that they were on the roster.

[00:56:30] Speaker 01:
I just wondered whether there was

[00:56:32] Speaker 01:
There's any wiggle room here?

[00:56:34] Speaker 01:
I guess you probably don't know the answer to that.

[00:56:36] Speaker 04:
In this particular case?

[00:56:38] Speaker 04:
Yeah.

[00:56:39] Speaker 04:
We have discussed settlement with Ms.

[00:56:43] Speaker 04:
Reyes' counsel, but we have not reached an agreement, Your Honor, on that.

[00:56:49] Speaker 04:
Well, the... But we have had discussions.

[00:56:50] Speaker 01:
Ms.

[00:56:51] Speaker 01:
Reyes' counsel has made it clear to us that the time is... Can you say it of the essence here?

[00:56:58] Speaker 01:
Because of the advanced age of the claimant and

[00:57:02] Speaker 01:
Nobody really wants to go through a protracted remand that ties up a lot of resources for a long period of time.

[00:57:10] Speaker 00:
To put it another way, if we should decide, hypothetically you understand, if we should decide to vacate and remand this back to you all, to the VA, to handle it correctly, can we get some assurance that Ms.

[00:57:27] Speaker 00:
Rays will not, she's 91 at the moment,

[00:57:30] Speaker 00:
will not have to make it to 100 in order for her to get her $15,000?

[00:57:37] Speaker 04:
Well, Your Honor, I certainly can't make any promises about the adjudicatory process if the court decides that it should be remanded.

[00:57:48] Speaker 04:
But I'm sure that VA will do everything to be diligent about getting any sort of any claim processed.

[00:57:56] Speaker 00:
It would not be unreasonable, should we remand, for us to

[00:58:00] Speaker 00:
provide that this shall be expedited in view of her age, would it?

[00:58:06] Speaker 00:
That would not be unreasonable.

[00:58:09] Speaker 04:
I don't think that would be unreasonable, though, of course, our position is that this should not be remanded.

[00:58:14] Speaker 00:
It might not produce very much, but it would make us feel better, I suppose.

[00:58:19] Speaker 04:
I understand, Your Honor.

[00:58:23] Speaker 04:
If the Court doesn't have any further questions, we ask that you affirm the Veterans Court's decision.

[00:58:28] Speaker 04:
Thank you.

[00:58:30] Speaker 03:
Thank you.

[00:58:31] Speaker 03:
Mr. Mastriani, you have three minutes.

[00:58:35] Speaker 00:
Thank you.

[00:58:35] Speaker 00:
Your Honor.

[00:58:35] Speaker 00:
Mr. Mastriani, just one quick comment from me.

[00:58:38] Speaker 00:
I'm sorry if I was a little rough with you earlier, but I really wanted to get to this part of the discussion, which I think is where your case turns.

[00:58:48] Speaker 02:
Yeah.

[00:58:49] Speaker 02:
Thank you, Your Honor.

[00:58:49] Speaker 02:
I've been before you in the past, and I appreciate you writing me.

[00:58:54] Speaker 02:
It's always productive.

[00:58:55] Speaker 02:
It's been like that and helpful.

[00:58:57] Speaker 02:
Thank you.

[00:58:58] Speaker 02:
You're welcome, Your Honor.

[00:59:00] Speaker 02:
The In re Pablo case that you referred to is a BVA decision.

[00:59:03] Speaker 02:
It doesn't have any precedent, but it was discussed in the 2014 congressional hearings.

[00:59:08] Speaker 02:
And that's where, in direct questioning from one of the congressmen to the VA official, he asked, would it be reasonable to accept the Form 23 as proof under the reinvestment act?

[00:59:25] Speaker 02:
And the VA official answered yes.

[00:59:27] Speaker 02:
That's in our brief, by the way.

[00:59:30] Speaker 02:
Now, just a couple of comments.

[00:59:32] Speaker 02:
Just keep in mind that during this entire period of the war, the Philippines was a part of the United States.

[00:59:38] Speaker 02:
It was the territory of the United States.

[00:59:39] Speaker 02:
So I don't think that should be forgotten.

[00:59:43] Speaker 02:
But as far as this language, Judge Clevernier, that you were talking about, the Section D, the 1002D language coming from Section 107, it actually did not come from Section 107.

[00:59:58] Speaker 02:
It came from

[00:59:59] Speaker 02:
the Philippine President Osmeña's order in 1944, which is at Appendix 172, discussed at page three of our brief.

[01:00:07] Speaker 01:
Right, and they found its way into 107, then found its way here.

[01:00:10] Speaker 02:
That's right, Your Honor.

[01:00:12] Speaker 02:
But I think importantly here, on this remand issue, and we absolutely appreciate your concerns about the exigencies here, and that should be expedited if there were remanded, but given the constitutional issues, and in our mind, the clear

[01:00:27] Speaker 02:
and unequivocal constitutional violations, you have the authority and the power to reverse.

[01:00:33] Speaker 01:
And if you reverse... Well, I know we first, we would have to adjudicate the claim and the way in which the regulation is being applied doesn't show flat out discrimination against women because nurses are included, right?

[01:00:52] Speaker 02:
registered nurses.

[01:00:53] Speaker 01:
Yeah.

[01:00:54] Speaker 01:
So you have a form of a gender discrimination.

[01:00:56] Speaker 01:
You say, well, that and the status that your client is in, presumably a male in that status might have qualified.

[01:01:04] Speaker 02:
They did qualify unequivocally.

[01:01:06] Speaker 01:
Well, but we don't, you're saying that sir, but this is a court of appeals, not a court of fact.

[01:01:11] Speaker 01:
For example, all of your chain of command evidence that's in a brilliant brief of history has brought all this forward to us.

[01:01:19] Speaker 01:
That would have to be tested in a court of law to make sure that was all there.

[01:01:24] Speaker 01:
I can't make those judgments.

[01:01:25] Speaker 01:
I can't take judicial notice of all those things.

[01:01:28] Speaker 02:
Well, I think we think you can, Your Honor.

[01:01:30] Speaker 01:
And the thing is that those records were either, for the most part... You haven't shown me any proof that a male orderly or whatever the title was that your client had in the hospital, that a male received benefits.

[01:01:43] Speaker 01:
You've just said he did a minute ago.

[01:01:46] Speaker 02:
because all men were recognized.

[01:01:48] Speaker 02:
No women were.

[01:01:48] Speaker 01:
You haven't given me a name, rank, serial number, and a date of the payment.

[01:01:52] Speaker 02:
No, I understand.

[01:01:53] Speaker 02:
I do understand.

[01:01:54] Speaker 01:
And that's a fact.

[01:01:55] Speaker 01:
You can't win your constitutional argument without that fact.

[01:02:00] Speaker 02:
But Your Honor, we're getting the burden put on us where under Kaplan versus Peek and other cases, the duty is on the VA and the government to do its utmost to assist Mrs. Reyes to have gotten

[01:02:14] Speaker 02:
and gathered all of these records that it had constructively before it.

[01:02:18] Speaker 02:
And the 1949 report was before the VA.

[01:02:21] Speaker 02:
It was responsible for identifying that in the interagency task force that the White House ordered and digitizing it and releasing it to the public.

[01:02:30] Speaker 02:
So they had express knowledge of the unconstitutional treatment of all women in service except for registered nurses.

[01:02:39] Speaker 02:
So this is not a mystery here.

[01:02:41] Speaker 02:
They have all those records constructively before them because they delegated to Army the right to do that.

[01:02:46] Speaker 02:
And this argument that Mrs. Reyes could have gone to the Army Board for Correction of Military Records is completely bogus because there was an announcement of a rule right after the war that Filipinos could not go to the board.

[01:03:01] Speaker 02:
They were prohibited from going to the board to get correction.

[01:03:06] Speaker 02:
a serpent eating its tail.

[01:03:08] Speaker 01:
Your catch-22 arguments are pretty good.

[01:03:11] Speaker 01:
There's no question about that.

[01:03:12] Speaker 01:
I mean, being told, well, you can get this award if you can get on the roster, and the roster was closed in 48.

[01:03:18] Speaker 01:
How are you supposed to get on a roster when it's closed?

[01:03:21] Speaker 02:
Right.

[01:03:21] Speaker 02:
I understand that.

[01:03:22] Speaker 02:
But as you point out, Mrs. Reyes is 91 years old.

[01:03:25] Speaker 02:
Every day, people are dying that were veterans.

[01:03:28] Speaker 02:
And they're going to be foreclosed.

[01:03:30] Speaker 02:
Even if you have a remand that lasts 60 days, we're going to lose dozens and dozens of people.

[01:03:36] Speaker 02:
About 10,000 people have been denied benefits, and a good part of them is because they weren't on the roster.

[01:03:42] Speaker 01:
You as the officer on the court appreciate the fact that we don't have a bank account.

[01:03:45] Speaker 01:
We can't write checks.

[01:03:48] Speaker 01:
The office of this particular institution is not to hand the 10,000 bucks to you.

[01:03:55] Speaker 02:
No, I understand.

[01:03:56] Speaker 01:
It's to hand you the entitlement if you're entitled to it.

[01:03:59] Speaker 02:
Right, you're right.

[01:03:59] Speaker 02:
And all that money is sitting, it's already been appropriate.

[01:04:02] Speaker 02:
It's been sitting in the treasury in an account since 2009.

[01:04:06] Speaker 02:
So it's not like it has to be appropriated by another act of Congress or somebody authorizing it.

[01:04:15] Speaker 02:
It's just sitting there doing nothing.

[01:04:17] Speaker 00:
And meanwhile, all these... You think it's sitting there.

[01:04:20] Speaker 00:
In fact, there's nothing there.

[01:04:21] Speaker 00:
You're probably right.

[01:04:24] Speaker 00:
Thank you, Your Honor.

[01:04:25] Speaker 03:
Thank you.

[01:04:25] Speaker 03:
The case is submitted.

[01:04:27] Speaker 00:
Mr. Phillips, could I see you back at the roving room for just a minute?