Cherry v. US

• Decision Date: 21 February 1979
• Docket Number: No. 73-77.,73-77.
• Citation: 594 F.2d 795
• Parties: Fred V. CHERRY v. The UNITED STATES.
• Court: U.S. Claims Court

594 F.2d 795

Fred V. CHERRY v. The UNITED STATES.

No. 73-77.

United States Court of Claims.

February 21, 1979.

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

Frances L. Nunn, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant. Captain James R. Marshall, Washington, D.C., of counsel.

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

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge:

The parties have filed cross-motions for summary judgment. This case concerns 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. Defendant seems to have been aware he was or might be alive, but communication with him was not possible. He 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 defendant says were made pursuant to the Missing Persons Act, 37 U.S.C. §§ 551-558. The wife is a third party defendant, but her liability, if any, is not before us now.

The record indicates 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. Plaintiff alleges she was extravagant with his money and dissipated it without let or hindrance by the Air Force.

Colonel Cherry claims entitlement to funds transferred from his pay account to his then wife on two theories. First, he says that the Missing Persons Act is unconstitutional as it allows confiscation of his property without due process of law or procedural safeguards. If this claim is upheld, Colonel Cherry argues entitlement to $122,098.13 — his pay and allowances excluding taxes, monies Colonel Cherry admits he allotted to his wife, and the $4,720.98 he ultimately recouped upon his return. Colonel Cherry's alternative claim is that some 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 interest, as well as those of his dependents, were being protected. Jurisdiction of this suit arises under 28 U.S.C. § 1491.

We do not find the Missing Persons Act unconstitutional, but we do hold that the Air Force owes Colonel Cherry part of the pay it allocated to the wife, since it has failed to demonstrate that Colonel Cherry's individual interest was properly protected when the Air Force administered his pay account, and indeed demonstrated the contrary with its own admissions.

I

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).

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, 366 U.S. 393, 408 (1961). 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, 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, 373 F.2d 920, 922-23, 179 Ct.Cl. 466, 469-72 (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 argument that disbursements to his then wife were made in a manner violative of due process. Congress passed the Missing Persons Act intending that the Secretary or his designee should administer funds in the best interest of members and dependents, in those very instances where notice to the serviceman and a hearing before disbursement of benefits to his family are impossible. Defendant made much of the absurdity of requiring that notice and an opportunity to be heard be given to a missing person who cannot be reached. We understood plaintiff's position really to be that a guardian ad litem should have been appointed to represent him, who could have received notice of any intended changes in his allotments. Clearly to do this would have much better respected the equality of treatment of servicemen, and dependents, as the statute implicitly requires, but we do not hold it is constitutionally necessary. The Act anticipates that the branch of the armed forces to which the serviceman belongs will scrutinize changes in his designated allotments to determine that any changes are warranted by the circumstances or essential for the well-being of his dependents. 37 U.S.C. § 553(b) and (h). And unlike the welfare recipients in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969), the serviceman's situation is not made immediately desperate by these disbursements, and on his return he can contest these payments, as Colonel Cherry is doing.

Finally, we disagree with Colonel Cherry's argument that since the State of Virginia, his domicile, generally provides for separation allowances of less than 100 percent of pay in divorce and separation decrees, servicemen separated from their families when they are captured are denied equal protection because all of their pay may be allocated to their families. Certainly there is a difference between a divorce or separation where two branches of a family go their separate ways, and the forced separation in Colonel Cherry's case. When a serviceman is missing in action, there is still but one family, and the paycheck of that serviceman supports that one family. Thus, men separated from their families by decrees of divorce or separation are not similarly circumstanced as those who are separated due to war. The Missing Persons Act is not discriminatory in providing different standards for the class of missing servicemen. Compare Puglisi v. United States, 564 F.2d 403, 215 Ct.Cl. 86 (1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59, rehearing denied, 436 U.S. 951, 98 S.Ct. 2860, 56 L.Ed.2d 794 (1978).

The main reason why we think the statute is constitutional is that we read it as setting defendant's duties at a higher level than defendant does. If defendant were right about the nature of its statutory duties, the constitutionality of the statute would be dubious indeed.

II

The Air Force fails to satisfy us that it seriously respected Colonel Cherry's own interests in administering his pay and allowances, despite its statutory responsibility to do so. The guardian ad litem notion is but one of the ways it could have done more than...