The opinion of the court was delivered by: METZNER
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 MIA's.
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 ...