Crone v. United States

• Decision Date: 09 July 1976
• Docket Number: No. 293-74.,293-74.
• Citation: 538 F.2d 875
• Parties: Velma L. CRONE et al. v. The UNITED STATES.
• Court: U.S. Claims Court

538 F.2d 875

Velma L. CRONE et al. v. The UNITED STATES.

No. 293-74.

United States Court of Claims.

July 9, 1976.

COPYRIGHT MATERIAL OMITTED

Dermot G. Foley, New York City, atty. of record, for plaintiffs. Kaplan, Kilsheimer & Foley, R. Alan Stotsenburg, Michael Hausfeld, and Jerry S. Cohen, Washington, D.C., of counsel.

Susan M. Linden, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant. Rose E. Adewale-Mendes, Frank A. Luna, David P. Schulingkamp, and Richard Stearns, Washington, D.C., of counsel.

Before COWEN, Chief Judge, and DAVIS and KUNZIG, Judges.

ON DEFENDANT'S MOTION AND PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

COWEN, Chief Judge, delivered the opinion of the court:

This suit challenges the validity of certain "official reports of death" and presumptive "findings of death" made by the Secretaries of the Army, Navy and Air Force, or their designees, pursuant to the Missing Persons Act, ch. 166, 56 Stat. 143 (1942), as amended, 37 U.S.C. §§ 551-57. Plaintiffs are the parents and spouses of seven American servicemen who were placed in missing-in-action (MIA) status during the Vietnam War and who, since May 1970, have been the subjects of such determinations of death, although their remains have never been recovered.

We have jurisdiction of this suit pursuant to 28 U.S.C. § 1491. Plaintiffs claim monetary relief under 37 U.S.C. §§ 552 and 553. Section 552(a) provides that

a member of a uniformed service who is on active duty * * *, and who is in a missing status, is * * * for the period he is in that status, entitled to receive or have credited to his account the same pay and allowances * * * to which he was entitled at the beginning of that period or may thereafter become entitled. * * *

Continuance of full pay and allowances is required for so long as the serviceman "can reasonably be presumed to be living" and is maintained in MIA status. 37 U.S.C. § 552(e), 555(a)(1). Section 553 authorizes the Secretaries of the military departments, or their designees, as appropriate, to initiate, continue or increase allotments of such pay and allowances for the support and benefit of the dependents or designated beneficiaries of MIAs.

Entitlement of an MIA to pay and allowances, and of his dependents to appropriate allotments therefrom, terminates on the date when such MIA becomes the subject of either an official report or presumptive finding of death under Section 556(b). 37 U.S.C. §§ 552(b), 555(b)(1). During the period May 1970 to June 1973, the pay and allowances of each of the MIAs involved in this action were discontinued pursuant to official determinations of death. During this same period, allotments of such pay and allowances to two of the plaintiffs herein, Patricia Heideman and Susan Sullivan, who are or were the dependents of MIAs, were similarly discontinued.

Plaintiffs seek to maintain this suit as a class action on behalf of a general class and a sub-class. Plaintiffs Velma L. and Paul E. Crone, Marjorie J. Pickett, Ivan and Betty Wiley, Adeline B. and Norman P. Westwood, Sr., and Mildred L. and Raymond J. Lodge, as parents of the former MIAs, request certification of a general class comprising all "next-of-kin of the MIA's who were the subjects of * * * determinations of death, suing not on their own behalf but on behalf of the MIA's whom they represent as next friends." Plaintiffs Susan Sullivan and Patricia Heideman, as wives of the former MIAs, request certification of a sub-class comprising "those members of the general class who, as dependents * * * and/or the designated beneficiaries of their respective MIA's seek recovery of monetary damages which they personally sustained as a result of such * * * determinations of death." Plaintiffs seek voidance of the death determinations, restoration of the servicemen involved to MIA status, and back pay and allowances for the period running from the date of each respective determination of death.¹

Three principal questions are presented by the parties' cross-motions for summary judgment: (1) whether those plaintiffs who purport to sue solely as "next friends" of the former MIAs have standing to maintain this action; (2) whether those plaintiffs with standing may maintain their suit as a class action; and (3) whether the determinations of death, because concededly made without affording prior notice and hearing to adversely affected parties and because allegedly made arbitrarily and capriciously, in the absence of standards and adequate evidence, should be held void ab initio. We answer all three questions in the negative. Accordingly, we deny plaintiffs' cross-motion and grant defendant's motion for summary judgment as to all plaintiffs except Patricia Heideman and Susan Sullivan, whose claims are remanded to the Trial Division for further proceedings consistent with this opinion.

I Facts²

1. Plaintiffs Velma L. Crone and Paul E. Crone

Plaintiffs Velma and Paul Crone are the parents of Specialist (SP4) Donald E. Crone, who was placed in MIA status on February 15, 1971, when the CH-47 "Chinook" helicopter in which he was flying as crew chief on a combat resupply mission crashed into enemy-held territory in Laos. In connection with an investigation, conducted pursuant to Army Regulations (AR) 600-10, Chap. 3, para. 31b, of the circumstances surrounding the crash, several sworn statements were filed.

Lieutenant Colonel (Lt. Col.) William N. Peachey, who was piloting an aircraft in the vicinity of the CH-47 and witnessed the crash, stated:

At that time the sling load, carried by the CH-47, burst into flames. Seconds later the aircraft burst into flames and exploded. The aircraft exploded at an approximate altitude of 2500 feet above the ground. I flew over the wreckage at approximately 100 feet and could see no survivors. I was forced to depart the area because of enemy fire. In my opinion there could have been no survivors.

No ground search was conducted of the crash site. On March 5, 1971, a Missing Persons Board of Inquiry recommended that the status of SP4 Crone, and of the five other members of the helicopter crew, be changed from MIA to killed-in-action. On March 30, 1971, Division Headquarters, U.S. Army, Vietnam, concurred in the recommendation and, on April 10, 1971, the recommendation was approved by Order of the Secretary of the Army. During the period February 15, 1971 to April 10, 1971, the date evidence of death was officially received by the Army, SP4 Crone was carried in MIA status and his pay and allowances were credited to his account pursuant to 37 U.S.C. § 552. The remains of SP4 Crone were not recovered.

2. Plaintiff Marjorie J. Pickett

Plaintiff Marjorie Pickett is the mother of Corporal (Corp.) Robert E. Grantham, who was placed in MIA status on March 8, 1971, when the aircraft in which he was flying as a crew member crashed in Vietnam. In connection with an investigation, conducted pursuant to AR 600-10, several sworn statements were filed.

Warrant Officer James E. Davey, who witnessed the crash from a nearby aircraft, stated:

Upon impact the LOH exploded into flames. Once I reached the area I did two tight orbits over the burning LOH looking for any personnel that might have survived the crash. Not seeing anyone I moved my aircraft in a few feet away from the wreckage and hovered. I instructed my crew to look for any survivors. Concerned about being a good target. I took off and did one more orbit around the area and approached it again. I hovered a few feet above the aircraft for approximately 45 seconds. No one in my crew could spot any bodies or any survivors. The aircraft had completely come apart and was in small burning pieces. While I was hovering the AK-1G said that I was taking fire and I departed the area.

The remains of Corp. Grantham were not recovered. From March 8, 1971, the date of the crash, to May 14, 1971, when evidence of death and the recommendation of the board of inquiry were received by the Army, Corp. Grantham was carried in MIA status and pay and allowances were credited to his account pursuant to 37 U.S.C. § 552.

3. Plaintiffs Ivan Wiley and Betty Wiley

Plaintiffs Ivan and Betty Wiley, are the parents of SP4 Richard Denis Wiley, who was placed in MIA status on June 12, 1972, following the crash of his aircraft in Vietnam. In connection with an investigation of the circumstances surrounding his MIA status, pursuant to AR 600-10, several sworn statements were filed.

Warrant Officer Thomas E. Martin, who survived the crash, stated:

The aircraft took .30 caliber antiaircraft fire. * * * It turned 180° upon hitting trees, tumbled backwards several times. I could get out. SP4 Wiley's legs were caught under the roof after the aircraft came to rest on its right side. The aircraft exploded causing SP4 Wiley to be killed. While on the ground we took heavy small arms fire. I tried to get SP4 Wiley out of the aircraft. * * *

The remains of SP4 Wiley were not recovered. During the period June 12, 1972, the date of the crash, to August 26, 1972, when evidence of death and the recommendation of the board of inquiry were received by the Army (which then issued a report of death under 37 U.S.C. § 556(b)), SP4 Wiley was carried in MIA status and pay and allowances were credited to his account pursuant to 37 U.S.C. § 552.

4. Plaintiffs Adeline B. and Norman P. Westwood, Sr.

Plaintiffs Adeline and Norman Westwood, Sr., are the parents of Lieutenant (Lt.) Norman Philip Westwood, Jr., who was placed in MIA status³ on May 17, 1970, when the aircraft he was piloting on a night bombing mission crashed at sea shortly after its catapult launch from the USS CORAL SEA. The Navy received and approved a report of death on May 18, 1970, from the Commanding Officer, USS CORAL SEA, which stated:

(2) Search for missing pilot of F4-B, Lt. Norman Philip Westwood, Jr., * * was terminated at 0900 H, 18 May 70. Crash site was vividly marked and definitely

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