Cherry v. United States

• Citation: 640 F.2d 1184
• Decision Date: 19 November 1980
• Docket Number: No. 73-77.,73-77.
• Parties: Fred V. CHERRY v. The UNITED STATES.
• Court: U.S. Claims Court

640 F.2d 1184

Fred V. CHERRY v. The UNITED STATES.

No. 73-77.

United States Court of Claims.

November 19, 1980.

Kaletah N. Carroll, Fairfax, Va., attorney of record, for plaintiff.

Frances L. Nunn, Washington, D. C., with whom was Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant; Major Francis S. Moran, Jr., Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, NICHOLS and BENNETT, Judges.

ON DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT

NICHOLS, Judge:

This military pay case is before the court on defendant's motion for relief from judgment of February 21, 1979, pursuant to Rule 152(b)(6).

In our February 1979 judgment, 219 Ct.Cl. ___, 594 F.2d 795, this court found the following to be the undisputed facts of this case concerning the Air Force's disposition of the military pay and allowances of Colonel Fred Cherry.

On October 22, 1965, Colonel Cherry was shot down while flying a combat mission over North Vietnam. The Air Force was aware that Cherry was or might be alive, but communication with him was not possible. Cherry remained a prisoner of war until February 12, 1973. Prisoners of war are entitled to regular pay and promotion, and during his period of imprisonment, Colonel Cherry earned $147,184.35 before taxes in basic pay and allowances. Such payments were kept in an account for him by the Air Force.

The Air Force disbursed to his then spouse, Shirley Ann Cherry (hereinafter wife), a/k/a Shirley Ann Brown Cherry Saunders, payments from this account for her support and for the support of their four children, to an extent that virtually depleted the account. Such payments were made pursuant to the Missing Persons Act, 37 U.S.C. §§ 551-558.

The record indicated that Mrs. Cherry was not faithful to her husband while he was overseas, in that she had a child by another man while being supported by Colonel Cherry's military pay. After his return, Colonel Cherry divorced his wife on the grounds of adultery. Colonel Cherry alleged that Mrs. Cherry was extravagant with his money and dissipated it without let or hindrance by the Air Force.

Plaintiff Cherry claimed entitlement to funds transferred from his pay account on two theories. The first theory was that the Missing Persons Act is unconstitutional as it allowed confiscation of his property without due process of law or procedural safeguards. In the alternative, plaintiff argued that payments to his wife were made illegally since the Air Force arbitrarily and capriciously failed to provide and follow adequate safeguards to insure that his interests, as well as those of his dependents, were being protected.

We found that the Missing Persons Act is constitutional. The discretion given to the Secretary or his designee by the Act is by necessity extensive and flexible yet constitutionally acceptable since dependents must be provided for under varied and changing circumstances caused by forced and prolonged separations. We further found that although the statute does not use the word "trustee," the armed services have accepted a role not practically distinguishable from that of a trustee for their missing servicemen, and that the Air Force in this case had not properly performed its trustee duties and was therefore liable to the plaintiff in some amount. To support our finding that the Air Force had a fiduciary relationship with plaintiff Cherry, we cited and followed our earlier decision in Mitchell v. United States, 219 Ct.Cl. 95, 591 F.2d 1300 (1979). However, this case has since been reversed by the United States Supreme Court in United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). In Mitchell, this court noted that a fiduciary relationship between the United States and the Quinault Indian Tribe was expressly declared by statute in the General Allotment Act, 25 U.S.C. § 348, and therefore we determined that the tribe could recover compensation for breaches of that trust. The Supreme Court reversed our decision and held that the General Allotment Act created only a limited trust relationship between the United States and the allottee and that the government had no duty under that Act to manage timber resources for the benefit of the Indian allottees.

Defendant's motion is on the ground that we relied on a precedent now reversed and therefore our decision is discredited. The Supreme Court did not address the proposition in Mitchell we relied on here, but we are of the view that Colonel Cherry's rights do not depend on a trust analysis and for certainty we should state them in different and less controversial terms. In response to defendant's motion, we withdraw our former opinion in this case. Furthermore, we substitute in its place the following.

I

Plaintiff has properly founded his claim to entitlement to military pay and allowances which accrued while he was a prisoner of war of the North Vietnamese from October 22, 1965, to February 12, 1973, pursuant to 37 U.S.C. §§ 551-558, The Missing Persons Act.

The Missing Persons Act is a constitutional exercise of Congress' power "to make Rules for the Government and Regulation of the land and naval Forces." U.S.Const. art. I, § 8, cl. 14. The Act is one of many laws that effectuate the duty noted by Abraham Lincoln "to care for him who shall have borne the battle and for his widow, and his orphan." Abraham Lincoln, Second Inaugural Address (March 4, 1865).

The Act authorizes continuation of pay and allowances to members of the armed forces missing in action, 37 U.S.C. § 552, and allows the respective Armed Services' Secretaries or their designee to initiate, discontinue, or alter pay allotments authorized in advance by the serviceman for his dependents "when he considers it in the interest of the member, his dependents, or the United States * * *." 37 U.S.C. § 553(e).

The law has long been that servicemen remain entitled to their pay while prisoners of war or in a MIA status. Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed. 365 (1961). To tamper with this right by legislation, especially with respect to pay already accrued, would raise serious fifth amendment issues, as it might be held to constitute a taking. Lynch v. United States, 292 U.S. 571, 54 S.Ct. 641 (1934). To authorize the executive to tamper at its option would likewise raise questions, unless the tampering was reasonably necessary and to be conducted with respect for the serviceman's interests. If the Act is not interpreted to retain in the MIA serviceman a claim to all his unallotted pay that accrues during his enemy confinement, less proper reallotments only, our jurisdiction would be questionable under the standards of United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), but in that event, under the analysis used in Regional Rail Reorganization Act Cases, 419 U.S. 102, 125, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974), constitutionality of the Missing Persons Act would be dubious indeed, and it should be construed to avoid such doubts. Certainly, this Act is intended to and does grant a great deal of discretion to the Secretary or his designee. But such discretion is constitutionally acceptable, especially in light of the legislative history of the Missing Persons Act and its predecessors.

In 1942, the Committee on Naval Affairs supported the predecessor of the present Act (50 U.S.C. App. § 1001) because it recognized that hardships occurred when missing servicemen had neglected to provide for their dependents via the allotment procedure established by the military. H.R.Rep.No.1680, 77th Cong., 2d Sess. 3, reprinted in 1942 U.S.Code Cong.Service 278-79; Bell v. United States, supra. And the present § 553(e), allowing the Secretary's (Air Force) alteration of allotments, was passed at a time when Congress often expressed concern for dependents of prisoners of war in North Vietnam who could not obtain necessary financial support due to bureaucratic red tape. 112 Cong.Rec. 20697, 20919, 21672 (1966) (all discussing problems faced by such dependents).

Thus, it is clear that Congress desired and needed a flexible system to allow provision for dependents whose supporting members were separated from their families not only geographically, but from any communication that would enable participation in the disbursement of their pay. Administrative discretion is needed to adjust to changing circumstances which are bound to occur over such a forced separation of many years. Concern for a family that might be in the deplorable shape of Colonel Cherry's did not require Congress to leave unprovided for the larger number, as one hopes, of families whose missing husbands would have bitterly resented red tape or obstruction interposed between their pay accounts and the dependents with need for support and care.

Yet the Secretary is not absolute in his discretion. He must make changes in the allotment of pay and allowances in the interest of "the member, his dependents, or the United States." 37 U.S.C. § 553(e). Such standards are specific enough to pass muster as a valid delegation of power by Congress, since the policy aim desired by Congress and the means to achieve these objectives have been clearly disclosed to the Armed Services in legislative debates concerning the Act and its predecessors, and in the language and standards of the Act itself. Compare Lichter v. United States, 334 U.S. 742, 783-86, 68 S.Ct. 1294, 1315-1317, 92 L.Ed. 1694 (1948); American Power and Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Grymes Hill Manor Estates v. United States, 179 Ct.Cl. 466, 469-72, 373 F.2d 920, 922-23 (1967). For present purposes it suffices to note that the member's interests are of equal status with those of his dependents.

We also reject plaintiff's arguments that the Act violates due process and denies notice and an opportunity to be heard. Plaintiff argues that a guardian ad litem should have been appointed to represent him, who...