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February 13, 1974

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

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge:

This three-judge court was convened pursuant to 28 U.S.C. ยงยง 2282 and 2284 to consider plaintiffs' challenge to the constitutionality of Sections 555 and 556 of Title 37 of the United States Code which govern the circumstances under which American armed forces personnel missing in action may be declared dead. The opinion granting the convocation of this court is appended hereto.

 Plaintiffs seek a declaratory judgment of unconstitutionality, an injunction prohibiting the defendants from making any further determinations of death, and an order directing the payment of damages for prior determinations.

 The five named plaintiffs are officially designated "primary next of kin" and "designated beneficiaries" of members of the Armed Forces who were on active duty in Indochina and who are presently being carried as missing in action by the defendants. The defendants are the respective Secretaries of the Air Force, Army and Navy.

 Sections 555 and 556 are found in Chapter 10 of Title 37 of the United States Code which is entitled "Payments to Missing Persons." This Chapter was enacted solely for the purpose of affording some financial support for the families of missing members of the Armed Forces during the time their fate was unknown. Bell v. United States, 366 U.S. 393, 408, 81 S. Ct. 1230, 6 L. Ed. 2d 365 (1961). These sections in question provide for two types of determinations of death by the Secretary or his designee. The first is an "official report of death," which a Secretary may make upon the receipt of "information" which "establishes conclusively the death of a member of a uniformed service." Section 556(b). The second is a "finding of death," which a Secretary may make when he considers that "the information received, or a lapse of time without information, establishes a reasonable presumption that a member in a missing status is dead." Section 556(b). Plaintiffs are attacking the constitutionality of both types of determinations.

 Section 555 provides for the review of the status of any missing service member no later than twelve months after an individual has been declared officially missing. When that review is completed, the member is either continued in the missing status if he can "reasonably be presumed to be living" (Section 555(a) (1)), or a "finding of death" is made based on his absence for a year and the lack of any conclusive information as to his whereabouts. Under Sections 555 and 556, both an "official report of death" and a "finding of death" are deemed "conclusive on all other departments and agencies of the United States."

 In practice, the various services have established informal boards or councils to conduct the review of a missing member's status in accordance with Section 555(a). After completion of this review, the board makes a recommendation as to whether either of the types of determinations of death should issue, or whether the member should continue to be carried in a missing status. The Secretary or his designee then reviews the recommendation of the board and issues the final determination.

 The threshold issue which we must resolve is whether this suit may be maintained as a class action. It is brought on behalf of "all next-of-kin, both in their capacity as representatives of their respective MIA's and with respect to their individual interests." MIA is defined by the complaint as a member of the Armed Forces "who, at any time during the period beginning January 1, 1962 to final judgment in this action, was in a 'missing status' while on active duty in Indochina . . . ." Thus, the class would include members whose missing status was changed by a determination of death made anytime since January 1962.

 First, none of the named plaintiffs are proper representatives of the group of military personnel who have previously been declared dead under Sections 555 and 556. They could only represent those "designated next-of-kin" of members who are still missing.

 As far as the remainder of the purported class is concerned, the issue of the constitutionality of these statutes can be raised and determined in an action for a declaratory judgment and injunctive relief without the necessity of a class action. A class action here would be largely a formality. "What is important in such a case . . . is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated." Galvan v. Levine, 490 F.2d 1255 (2d Cir. December 3, 1973) at 1261. A favorable judgment here would obviously accomplish this result. The court can properly assume that an agency of the government would not persist in taking actions which violate the rights of a service member's next of kin, if the statutes are declared unconstitutional. Tyson v. New York City Housing Authority, 369 F. Supp. 513 (S.D.N.Y., January 9, 1974), cf., Vulcan Society v. Civil Service Commission of the City of New York, 490 F.2d 387 (2d Cir. November 21, 1973).

 Plaintiffs' primary claim is that these statutes are unconstitutional on their face and as applied because they authorize the Secretaries to make determinations of death without providing a prior hearing or notice of a proposed status change to the next-of-kin in violation of the due process clause of the Fifth Amendment.

 It is a well established principle that procedural due process is required in administrative proceedings when adjudications of fact are made which operate to deprive a person of a constitutionally protected interest. 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).

 There is no question that an "official report of death," or a "finding of death" made by the defendants is an adjudication of fact.

 As to whether plaintiffs have a constitutionally protected interest, one must look to the " nature of the interest at stake" in order to see if it falls within the ambit of the Fifth Amendment's protection of life, liberty and property. Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548 (1972). Plaintiffs here receive monthly payments while a member is carried in a missing status. It is clear from recent opinions of the Court that the plaintiffs have a property interest at stake in the continuation of the entitlements granted to them under Sections 555 and 556 which is sufficient to invoke constitutional protection. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); cf., Board of Regents v. Roth, supra at 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548; Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 46 S. Ct. 215, 70 L. Ed. 494 (1926). Just as the welfare recipient's "property" interest in welfare payments in Goldberg "was created and ...

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