Pitchford v. United States

• Decision Date: 02 December 1981
• Docket Number: No. 39-79.,39-79.
• Parties: John J. PITCHFORD v. The UNITED STATES; Shirley M. Pitchford, Third-Party Defendant.
• Court: U.S. Claims Court

666 F.2d 533

John J. PITCHFORD v. The UNITED STATES; Shirley M. Pitchford, Third-Party Defendant.

No. 39-79.

United States Court of Claims.

December 2, 1981.

Richard G. Noble, Indianola, Miss., attorney of record, for plaintiff; Crosthwait, Terney, Noble & Eastland, Indianola, Miss., of counsel.

Cynthia C. Cummings, with whom was Asst. Atty. Gen., J. Paul McGrath, Dept. of Justice, Washington, D. C., for defendant; Max Gest, Los Angeles, Cal., of counsel.

Shirley M. Pitchford, pro se; Max Gest, Los Angeles, Cal., of counsel.

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

FRIEDMAN, Chief Judge:

In this case, before us on cross-motions for summary judgment, the plaintiff, a former prisoner-of-war in North Vietnam, seeks to recover the portions of his pay and allowances that the Air Force paid during his captivity to his then-wife. We hold for the defendant and dismiss the petition.

I.

The plaintiff and his ex-wife first were married in 1963. They were divorced in May 1965. In June of that year, the plaintiff designated his mother as the recipient of survivor benefits if he were missing. Plaintiff also gave a power of attorney to his brother. In November 1965, just three days before plaintiff went overseas to Vietnam, he remarried his ex-wife. On December 20, 1965, the plaintiff, a pilot, was shot down over North Vietnam and taken prisoner. He was in captivity for almost eight years. While a prisoner, he was entitled to full pay and allowances. 37 U.S.C. § 552(a)(1) (1976).

During the plaintiff's captivity, the Air Force, pursuant to the Missing Persons Act, 37 U.S.C. §§ 551-558 (1976), disbursed to his wife approximately $100,000 from his funds, which included a savings account to which the Air Force had transferred part of his pay. The Air Force also paid some of the funds to the plaintiff's mother, a disbursement not in dispute. The plaintiff was released from captivity on February 12, 1973. When he returned to this country, he lived with his wife and her children. In May 1973, he called the Air Force to thank the caseworkers for their care of his family during his absence.

In 1976, the plaintiff and his wife again were divorced. In 1977, the plaintiff sought recovery from the Air Force of all the money it had paid to his wife during his captivity. When the Air Force refused recovery, the plaintiff in 1979 filed this suit. The plaintiff contends that the disbursements made to his ex-wife constituted an abuse of the Air Force's discretion because they were excessive.

The United States impleaded the defendant's former wife as a third-party defendant and asserted a contingent claim against her for any amount the plaintiff might recover against the United States. The plaintiff, the United States, and the third-party defendant all moved for summary judgment. Although the latter two contend that the plaintiff's claim is barred by laches, our disposition of the merits of this case makes it unnecessary to consider that contention.

II.

The Missing Persons Act provides that a member of the uniformed services who is in a missing status continues to receive or have credited to his account the pay and allowances to which he is entitled while in that status. 37 U.S.C. § 552(a)(1). The Act further provides:

The Secretary concerned, or his designee, may, when he considers it in the interest of the member, his dependents, or the United States, direct the initiation, continuance, discontinuance, increase, decrease, suspension, or resumption of payments of allotments from the pay and allowances of a member entitled to pay and allowances under section 552 of this title.

37 U.S.C. § 553(e). The Secretary has similar authority to change allotments to and authorize withdrawals from a member's savings account. 10 U.S.C. § 1035(e) (1976).

In Cherry v. United States, 225 Ct.Cl. 312, 640 F.2d 1184 (1980), we pointed out that "this Act is intended to and does grant a great deal of discretion to the Secretary or his designee." Id. at ___, 640 F.2d at 1187. We also stated:

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.

Id. at ___, 640 F.2d at 1187.

The Cherry case, upon which both parties rely, presented issues similar to those now before us, but in quite different circumstances. Colonel Cherry, like the plaintiff in the present case, had been a prisoner in North Vietnam, and during his captivity the Secretary of the Air Force had disbursed substantial portions of Colonel Cherry's pay and allowances to his wife. Cherry's wife was unfaithful to him and had a child by another man. Upon his release from captivity and return to this country, Colonel Cherry divorced his wife on the ground of adultery.

During Colonel Cherry's captivity, the Air Force received information that should have indicated to it that Mrs. Cherry "may have been spending her allotments in ways that were inconsistent with the objectives of the Missing Persons Act." Id. at ___, 640 F.2d at 1189. She requested and received emergency funds for surgery in a private hospital even though as a serviceman's wife she was entitled to free medical care at excellent military hospitals in her area. In fact, the surgery was for the delivery of her illegitimate child. Thereafter Mrs. Cherry avoided answering inquiries by the Air Force concerning her need for and use of the money being disbursed to her. Colonel Cherry's sister wrote the Air Force complaining about Mrs. Cherry's marital misconduct.

We held the Secretary had abused his discretion in routinely

granting each and every request for funds made by Mrs. Cherry....

... We hold that at some point in time the Air Force should have undertaken an investigation of the manner in which funds were expended and that Colonel Cherry is entitled to funds disbursed after that point, if further examination of the facts indicates that disbursements to Mrs. Cherry were made on the basis of false claims by her or were for nonemergency purposes or not warranted by the particular circumstances. Possibly the Air Force would have learned thus of earlier misstatements and been able to offset claims by it for refunds against current allotments.

Id. at ___, 640...