Townsend v. Carter

• Decision Date: 04 October 1979
• Docket Number: Civ. A. No. 3-79-0990-H.
• Citation: 476 F. Supp. 1070
• Parties: Carolyn Dianne TOWNSEND and Captain Francis W. Townsend by his Wife and Next Friend, Carolyn Dianne Townsend, Plaintiffs v. James E. CARTER, Jr., President of the United States of America, Harold S. Brown, Secretary of Defense, and John C. Stetson, Secretary of the Air Force, Defendants.
• Court: U.S. District Court — Northern District of Texas

476 F. Supp. 1070

Carolyn Dianne TOWNSEND and Captain Francis W. Townsend by his Wife and Next Friend, Carolyn Dianne Townsend, Plaintiffs v. James E. CARTER, Jr., President of the United States of America, Harold S. Brown, Secretary of Defense, and John C. Stetson, Secretary of the Air Force, Defendants.

Civ. A. No. 3-79-0990-H.

United States District Court, N. D. Texas, Dallas Division.

October 4, 1979.

COPYRIGHT MATERIAL OMITTED

M. J. Vanden Eykel, Dallas, Tex., for plaintiffs.

Kenneth J. Mighell, U. S. Atty. by Stafford Hutchinson, Asst. U. S. Atty., Dallas, Tex., for defendants.

OPINION AND ORDER

SANDERS, District Judge.

Defendants filed their Motion to Dismiss or, in the Alternative, for Summary Judgment August 17, 1979. Plaintiffs filed their Response August 29, 1979. The Court treats Defendants' Motion as a Motion for Summary Judgment. Defendants' Motion is GRANTED.

Carolyn Dianne Townsend is the wife of Captain Francis W. Townsend of the United States Air Force. Captain Townsend has been missing in action since August 13, 1972, when his aircraft was shot down over Viet Nam. Pursuant to 37 U.S.C. § 555, the Air Force reviewed Captain Townsend's case within twelve months of that date and continued his status as "Missing in Action" (MIA).

In May of 1978, the Air Force notified Mrs. Townsend that it would again review the status of Captain Townsend. Mrs. Townsend submitted FOIA (Freedom of Information Act) requests, which were fulfilled. Thereafter, a status review hearing was held January 22, 1979, with the approval of Mrs. Townsend and her attorney. As a result of that hearing, the hearing board recommended that Captain Townsend's "Missing in Action" status be changed to "Killed in Action".

Plaintiffs assert two defects in the status review hearing. First Plaintiffs assert that the hearing was procedurally deficient, in violation of their due process rights under the Fifth Amendment. Plaintiffs also claim that Defendants failed to maintain and provide records in a timely and complete manner, in violation of 5 U.S.C. § 552a.

I. Due Process

The status review hearing was conducted in accordance with Air Force Regulation 35-43, dated April 22, 1974, as amended, July 3, 1978. This regulation was adopted to implement the decision in McDonald v. McLucas, 371 F.Supp. 831 (S.D.N.Y.1974) (three judge court), aff'd 419 U.S. 987, 95 S.Ct. 297, 42 L.Ed.2d 261 (1974). The trial court held (at p. 836) that procedural due process is required in MIA status determinations conducted pursuant to 37 U.S.C. 555:

Under minimum due process standards notice must be given of a status review and the affected parties afforded a reasonable opportunity to attend the review, with a lawyer if they choose, and to have reasonable access to the information upon which the reviewing board will act. Finally, they should be permitted to present any information which they consider relevant to the proceeding. Once that is done, the requirements of due process have been satisfied.

Plaintiffs contend that the January 22, 1979, hearing violated due process. Their arguments will be addressed seriatim.

Plaintiffs first assert that the hearing board (three active duty Air Force pilots with combat experience) was not impartial, since the board members may have been under command pressure in rendering their decision. But Plaintiffs made no showing of any such pressure. Furthermore, the fact that the board members were affiliated with the Air Force does not in itself bar them from acting as impartial decision makers. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). It is government policy to try to discover, and consider, any evidence weighing against a determination of death, viz, "Killed in Action". Hopper v. Carter, 572 F.2d 87, 89 (2nd Cir. 1978). Presumably, command pressure, if any had been shown, would have been in furtherance of this policy and thus not harmful to Plaintiffs.

The Plaintiffs' second assertion is that, because the officers were asked to rely on their combat experience, any decision they reached as board members would be based in part on evidence not presented at the hearing and thus not subject to cross-examination. The Court disagrees. The board members' experience enabled them to consider and draw reasonable inferences from the evidence just as a juror does in a court of law. Additionally, the status review procedure provided for a voir dire of the board members (which was conducted) to ascertain whether any should be disqualified for cause. Finally, courts have approved fact-finding panels that draw on their particular backgrounds in rendering a decision. Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970).

Plaintiffs' third assertion relates to Plaintiffs FOIA requests. Plaintiffs' argue that due process was violated because over 15,000 pages of uncorrelated documents were not made available to Mrs. Townsend until after the hearing. It is undisputed, however, that all unclassified correlated information which related specifically to Captain Townsend was supplied to Mrs. Townsend prior to the hearing. Uncorrelated information is information which has not been identified as pertaining to any particular individual. Such information was not considered by the board. There is no claim that the uncorrelated documents contained any new information upon which Plaintiffs might ground a motion to reopen the hearing. This assertion is without merit.

Plaintiffs next contend that, since the reviewing officers were given classified information not available to Plaintiffs, Plaintiffs were deprived of the right to cross-examine and that the board's decision was partially based on evidence not available to Plaintiffs. It is clear that the withheld information pertained only to sources and methods of gathering information in Viet Nam. Such information is protected from disclosure. 50 U.S.C. § 403(d)(3). Plaintiffs were provided with relevant extracts from the classified information. The board specifically found that the classified information did not affect its determination. Plaintiffs cite Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) in support of their right to confront and cross-examine witnesses. Greene, however, is inapposite. There the government withheld the identity of secret informants whose statements the board relied upon in denying a security clearance to the plaintiff. The nature of both the evidence withheld and the plaintiff's protected interest in Greene is clearly distinguishable from this case. Due process depends on the "facts and circumstances of an individual case and not on figures of speech imported from other cases." Robison v. Wichita Falls and North Texas Community Action Corp., 507 F.2d 245, 253 (5th Cir. 1975); see also Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971) (cross-examination not required). Balancing the government's interest with those of the Plaintiffs and considering that the classified information had no effect on the board's decision, the Court concludes that Plaintiffs' due process rights were not violated.

Plaintiffs' next claim is that the board members were not provided all information pertaining to Captain Townsend prior to the hearing, thereby effectively denying them a full opportunity to review all documentation. The Defendants reply that this procedure protected Plaintiffs by affording a de novo hearing with no risk of preconceptions having been formed by the board members. The Court agrees that the procedure was fair and did not abridge Plaintiffs' rights.

Plaintiffs' next contention relates to the continuing search efforts for MIAs in Southeast Asia. Plaintiffs assert that Defendants cannot make a fair determination of the...