Cornelio R. Besinga v. United States of America U.S. Attorney General's Office

ORDER

The per curiam opinion filed July 6, 1989 is withdrawn. The attached opinion is filed in its stead authored by Judge Norris.

OPINION

Appellant Cornelio Besinga, a World War II veteran from the Philippines who now lives in California, brought this action seeking a declaration that the Surplus Appropriation Rescission Act of 1946, Pub.L. 79-301, 60 Stat. 38, is unconstitutional. Because the Act gives veterans of the Philippine military who fought under the direction of the United States only a fraction of the benefits given veterans of the United States military, Besinga claims that it deprives him of his due process and equal protection rights under the Fifth Amendment. The district court dismissed the action on the ground that Besinga’s claim was barred by the prior adjudication of a class action in which he was represented.

The district court relied upon Filipino American Veterans and Dependents Ass’n v. United States, 391 F.Supp. 1314 (N.D.Cal.1974) (hereinafter “FAVDA”), in which a purported class of World War II veterans from the Philippines challenged the constitutionality of 38 U.S.C. § 107 , which declared that their service was not “active military service” for…