McDonald v. McLucas

• Decision Date: 06 August 1973
• Docket Number: No. 73 Civ. 3190.,73 Civ. 3190.
• Parties: Ellen P. McDONALD, et al., Plaintiffs, v. John McLUCAS, Acting Secretary of the Air Force, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

371 F. Supp. 837

Ellen P. McDONALD, et al., Plaintiffs, v. John McLUCAS, Acting Secretary of the Air Force, et al., Defendants.

No. 73 Civ. 3190.

United States District Court, S. D. New York.

August 6, 1973.

Kaplan, Kilsheimer & Foley, New York City, for plaintiffs; Dermot G. Foley, R. Alan Stotsenburg, New York City, of counsel.

Paul J. Curran, U. S. Atty., S.D.N.Y., Foley Square, N. Y., for defendants; Howard S. Sussman, Naomi L. Reice, Asst. U. S. Attys., of counsel.

METZNER, District Judge.

Plaintiffs seek a preliminary and permanent injunction in this action for a judgment declaring Sections 555 and 556 of Title 37, United States Code, which govern the circumstances under which American servicemen missing in action may be declared dead, unconstitutional as violative of the due process clause of the Fifth Amendment. Jurisdiction is grounded on 28 U.S.C. § 1331.

This suit is being maintained as a class action on behalf of all next-of-kin of American servicemen who have been carried in a missing status (MIA) while on active duty in Indochina since January 1, 1962. Next-of-kin is defined by plaintiffs to include spouses, children, parents, brothers and sisters of MIAs. The defendants are the respective Secretaries of the Army, Navy and Air Force.

In count one plaintiffs contend that these statutes are unconstitutional on their face because they violate the due process clause of the Fifth Amendment in that (1) there are no statutory criteria to guide the Secretary in his determination of whether or not to make an official report of death or a presumptive finding of death; (2) there has been no statutory rule-making authority delegated to the Secretary with respect to findings of death; (3) there is no notice given to the next-of-kin regarding the pendency of a status review, nor any opportunity to be heard before a finding of death is made; and (4) the statutes permit the Secretary to make findings in the total absence of any evidence.

Count two alleges that the statutes are unconstitutional as applied because (1) no criteria or standards have been issued to guide the Secretary in making his determinations; (2) there is no procedure for giving notice and as a result, next-of-kin have been excluded from any participation in the review proceedings; (3) the Secretary does not "convene, conduct or participate in any hearing or review prior to making findings of death," and (4) the findings of death are being made in a total absence of any evidence.

The third count alleges that the defendants have been, and are now, acting in an arbitrary and capricious manner in making findings of death because they have failed to "diligently search for or ascertain all available information" about the MIAs. As a result of this activity, defendants' findings of death are said to be based upon "pure speculation and guesswork."

The fourth count alleges that the findings of death made under Sections 555 and 556 are subject to the Administrative Procedure Act, 5 U.S.C. § 500 et seq., and that the defendants have failed to comply therewith, thus depriving plaintiffs of their statutory rights under the Act.

In the fifth count it is claimed that as a result of these findings of death, plaintiffs have been deprived of their constitutional rights as beneficiaries of the Paris Agreement of January 21, 1973 which ended the hostilities in Vietnam. Article 8(b) of that agreement provides:

"The parties shall help each other to get information about those military personnel and foreign civilians of the parties missing in action, to determine the location and take care of the graves of the dead so as to facilitate the exhumation and repatriation of the remains, and to take any such other measures as may be required to get information about those still considered missing in action." (Emphasis supplied)

By making findings of death, plaintiffs claim that the government is no longer obligated under the Paris Agreement to require other parties thereto to furnish information about MIAs.

Since this action seeks an injunction restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, we must now consider whether a three-judge court should be convened to hear plaintiff's application. 28 U.S.C. §§ 2282, 2284.

In determining whether to convene a three-judge court, the initial inquiry is whether a substantial constitutional question exists. The substantiality prerequisite was last reviewed in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973), in which the Court said:

"`Constitutional insubstantiality' for this purpose has been equated with such concepts as `essentially fictitious,' . . . `wholly insubstantial,' . . . `obviously frivolous,' . . . and `obviously without merit,' . . . . The limiting words `wholly' and `obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281."

Turning to plaintiffs' facial attacks against the statutes, the government has conceded that substantial constitutional questions are presented requiring the convening of a three-judge court. I agree.

The Supreme Court has consistently held that due process under the Fifth Amendment requires some form of notice and opportunity to be heard in administrative proceedings when adjudications of fact are made, and when a person is deprived of a protected interest. See, Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); Greene v. McElroy, 360 U.S. 474 (1959); see also, Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). There is obviously a property interest involved in the monthly payments that accrue while a serviceman is carried on a missing status. At this stage of the litigation, it is of course not necessary to consider the nature of the procedure, assuming one is warranted, that will satisfy the due process clause. Cf., Snead v. Department of Social Services, 351 F.Supp. 1360, 1365 (S.D.N.Y.1972).

We also note that when the Secretary's authority to make presumptive findings of death under Sections 555 and 556 is coupled with the alleged lack of notice and opportunity to be heard, the effect of the statutory scheme appears to create an irrebuttable presumption of death. This in itself raises a substantial constitutional question since the Supreme Court has traditionally held that irrebuttable presumptions which act to deprive persons of protected interests violate the due process clause of the Fifth Amendment. See, Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 76 L.Ed. 772 (1932); cf., Dunn v. Blumstein, 405 U.S. 330, 350, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).

One of the grounds urged that the statutes are unconstitutional on their face is that they provide for delegation of legislative power devoid of any standards. Defendants urge that this argument is foreclosed by previous decisions which have held that Congress need not make specific standards for each subsidiary executive action in carrying out a policy. Carlson v. Landon, 342 U.S. 524, 542, 72 S.Ct. 525, 96 L.Ed. 547 (1952); see also Yakus v. United States, 321 U.S. 414, 424-425, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

Plaintiffs in turn rely on A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L. Ed. 1570 (1935) and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), which are the only two cases ever to invalidate Congressional delegations of power to administrative or executive agencies.

While it is true that recent decisions have rejected attacks based on the ground that the statutes did not contain a policy or standard to guide an administrator in carrying out the mandate of the Act, it does not follow that these decisions render plaintiffs' claim here "inescapably frivolous." Goosby v. Osser, supra. At most, the claim becomes "doubtful" or "questionable," which Goosby teaches is sufficient to cause the issue to be determined by a three-judge court. See also, K. Davis,...