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Supreme Court of the United States No. 19- IN THE Supreme Court of the United States EDDIE N. DELA CRUZ, Petitioner, v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF AppEALS FOR THE FEDERAL CIRcuIT PETITION FOR A WRIT OF CERTIORARI SETH A. WATKINS Counsel of Record WATKINS Law & ADVOCACY, PLLC 1455 Pennsylvania Avenue, NW, Suite 400 Washington, DC 20004 (202) 355-9421 [email protected] LOUis S. MasTRiaNI ADDUCI, MasTRiaNI & SCHAUMBERG LLP 1133 Connecticut Avenue, NW Washington, DC 20036 Of Counsel Counsel for Petitioner Date: December 19, 2019 291966 i QUESTION PRESENTED Over the last decade since Congress passed remedial legislation creating Filipino Veterans Equity Compensation (“FVEC”), an astronomical fifty-six percent (56%) of all claimants have been denied that one-time benefit by the Department of Veterans Affairs (“VA”). This notorious failure to effectuate Section 1002, American Recovery and Reinvestment Act of 2009 (“ARRA”), has been the subject of an inter-agency task force convened by the White House, two hearings before the House of Representatives, and now a Federal Circuit opinion. Below, the parties disputed the plain language in Section 1002 establishing “eligible persons” to receive the FVEC benefit. The Federal Circuit held that the VA could by-pass express eligibility criteria in the statute in favor of a “service” determination by the United States Army that would be “conclusive and binding on the VA” irrespective of the benefit’s remedial nature and “regardless of whatever other evidence documenting service the claimant provides to the VA.” According to the court of appeals, the VA need not make any independent assessment of FVEC eligibility. The question presented is: Whether the Federal Circuit has erred in its narrow construction of ARRA Section 1002—a remedial veteran’s statute providing a benefit for Filipinos who were “call[ed] and order[ed] into the service of the armed forces of the United States” during WWII—by not following the pro-veteran canon requiring that the Act be “liberally construed for the benefit of those who left private life to serve their country in its hour of great need.” ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT Petitioner is Eddie N. Dela Cruz. Respondent is Robert Wilkie, Secretary of Veterans Affairs. No party is a corporation. iii STATEMENT OF RELATED CASES Pursuant to SCR 14.1(b)(iii), all proceedings in the lower courts directly related to this case are • Eddie N. Dela Cruz v. Robert Wilkie, No. 2018-2101 (Fed. Cir.) (judgment dated July 26, 2019); • Eddie N. Dela Cruz v. David J. Shulkin, M.D., No. 17-1020 (CAVC) (judgment dated May 25, 2018); and • Eddie N. DelaCruz v. Robert A. McDonald, No. 13-1157 (CAVC) (remand and mandate, without judgment, on October 24, 2014). iv TABLE OF CONTENTS Page QUESTION PRESENTED .......................i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT ........................... ii STATEMENT OF RELATED CASES ............iii TABLE OF CONTENTS.........................iv TABLE OF APPENDICES ......................vi TABLE OF CITED AUTHORITIES ............. vii OPINIONS BELOW..............................1 JURISDICTION .................................1 STATUTORY PROVISION INVOLVED ............1 STATEMENT OF THE CASE ....................2 The Rescission Acts of 1946 .....................3 The Reconstructed Rosters of Guerrillas Who Served .......................................3 The FVEC Benefit.............................5 The White House Task Force in 2012-13 ..........7 v Table of Contents Page Hearings in the House of Representatives in 2014 ..8 Dela Cruz Was Denied Eligibility for the FVEC Benefit ......................................10 The Federal Circuit Opinion....................12 REASONS FOR GRANTING THE PETITION.....14 I. THE FEDERAL CIRCUIT HAS DEPARTED FROM THIS COURT’S PRECEDENTS CONSTRUING VETERAN’S STATUTES .................17 II. THIS CASE IS A GOOD VEHICLE FOR RESOLVING THE QUESTION PRESENTED ............................20 CONCLUSION .................................21 vi TABLE OF APPENDICES Page APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, FILED JULY 26, 2019 ................................1a APPENDIX B — ORDER OF THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, DATED MAY 3, 2018 ...22a APPENDIX C — MEMORANDUM DECISION OF THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, DATED MARCH 16, 2018.....................24a APPENDIX D — DECISION OF THE BOARD OF VETERANS’ APPEALS, DEPARTMENT OF VETERANS AFFAIRS, DATED FEBRUARY 7, 2017 ..................33a APPENDIX E — ORDER DENYING REHEARING BY THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, FILED SEPTEMBER 20, 2019 .......................43a APPENDIX F — AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 § 1002 ..45a vii TABLE OF CITED AUTHORITIES Page CASES Alabama Power Co. v. Davis, 431 U.S. 581 (1977)............................19 Almero v. INS, 18 F.3d 757 (9th Cir. 1994).......................5 Boone v. Lightner, 319 U.S. 561 (1943) ....................2, 14, 17, 18 Brown v. Gardner, 513 U.S. 115 (1994) . .19 Cloer v. Sec’y of HHS, 675 F.3d 1358 (Fed. Cir. 2012) ..................20 Coffy v. Republic Steel Corp., 447 U.S. 191 (1980) ............................19 Cronin v. United States, 765 F.3d 1331 (Fed. Cir. 2014)...................18 Filipino American Veterans and Dependents Ass’n v. United States, 391 F. Supp. 1314 (N.D. Cal. 1974) ................3 Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946)...................16, 17, 18, 19 Henderson v. Shinseki, 562 U.S. 428 (2011)......................14, 18, 19 viii Cited Authorities Page Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) ..................18 King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) .........................17, 19 Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018) ..................18 Le Maistre v. Leffers, 333 U.S. 1 (1948)..............................18 Procopio v. Wilkie, 913 F.3d 1371, 1380 (Fed. Cir. 2019)..............15 Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994)....................20 Tcherepnin v. Knight, 389 U.S. 332 (1967)............................20 STATUTES AND OTHER AUTHORITIES 5 U.S.C. § 702 ...................................13 5 U.S.C. § 704 ...................................13 28 U.S.C. § 1254(1)................................1 38 U.S.C. § 107(a).................................3 ix Cited Authorities Page 38 U.S.C. § 107(b).................................3 38 C.F.R. § 3.203 ..........................16, 17, 20 38 C.F.R. § 3.203(a) . .11 38 C.F.R. § 3.203(a)(1) .........................11, 12 38 C.F.R. § 3.203(c) ..............................12 6 Fed. Reg. 3825 (Aug. 1, 1941) .....................3 ARRA § 1002 . passim ARRA § 1002(c)(1) .............................6, 15 ARRA § 1002(d).........................6, 14, 16, 20 ARRA § 1002(e) ..................................6 ARRA § 1002(f) ..................................6 ARRA § 1002(g)(1) ...............................7 ARRA § 1002(h)..................................6 ARRA § 1002(l) ..................................6 DEpa RTMENT OF VETERA NS A FFaiRS AGENCY FINANCial REPORT 2019 (Nov. 19, 2019) ............2 x Cited Authorities Page Executive Order No. 21 by the President of the Philippines (Oct. 28, 1944) ...................2 FilipiNO VETERANS EQUITY COmpENsaTION FUND: EX amiNING THE DEpaRTMENT OF DEFENSE AND INTERAGENCY PROCEss FOR VERIFYING EliGIBiliTY, Hearing Before the Subcommittee on Oversight and Investigations of the Committee on Armed Services, House of Representatives (June 24, 2014) ..................8 FilipiNO VETER A NS EQU I TY COmpENsaT ION F UND: I NQU I RY I NTO THE A DEQUACY OF PROCEss IN VERIFYING EliGIBiliTY, Hearing Before the Subcommittee on Disability Assistance and Memorial Affairs of the Committee on Veterans’ Affairs, House of Representatives (Nov. 20, 2014) ..................9 Oral Arg., Dela Cruz, v. Wilkie, No. 2018-2101 (Fed. Cir.) ...................................13 Pub. L. No. 104-204, 110 Stat. 2874 (1996) ...........19 Pub. L. No. 111-5, 123 Stat. 115 (2009) ...............1 Pub. L. No. 79-301, 60 Stat. 6 (1946) .................3 Pub. L. No. 79-391, 60 Stat. 221 (1946) ...............3 U.S. ARMY RECOGNITION PROGRam OF PHilippiNE GUERRillas, Headquarters, Philippines Command, United States Army (ca. 1949) . 3-4 1 Petitioner Eddie N. Dela Cruz (“Dela Cruz”) respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit entered in this action on July 26, 2019. OPINIONS BELOW The opinion of the Court of Appeals for the Federal Circuit, dated July 26, 2019, is set forth in the Appendix (“App.”) at 1a-21a. A panel Order of the Court of Appeals for Veterans Claims on rehearing, dated May 3, 2018, is set forth at 22a-23a. The Memorandum Decision of the Court of Appeals for Veterans Claims dated March 16, 2018 is set forth at 24a-32a. The underlying decision of the Board of Veterans’ Appeals dated February 7, 2017 is set forth at 33a-42a. The Order of the Court of Appeals for the Federal Circuit denying rehearing, dated September 20, 2019, is set forth at 43a-44a. JURISDICTION The judgment of the court of appeals was entered on July 26, 2019. A petition for rehearing was denied on September 20, 2019. App. at 43a-44a. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISION INVOLVED Section 1002 of ARRA, Pub. L. No. 111−5, 123 Stat. 115, 200-02 (2009), is
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