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HOPPER v. CARTER

No. 668, Docket 77-6179.

572 F.2d 87 (1978)

Earl P. HOPPER, Jr., by his father and next friend, Earl P. Hopper, Sr., Michael J. Bosiljevac, by his wife, next friend and Conservator-Guardian, Mary K. Bosiljevac, Robert A. Brett, Jr., by his father, next friend and Guardian-Conservator, Robert A. Brett, Sr., Nicholas G. Brooks, by his father and next friend, George L. Brooks, Sheldon D. Schultz, by his father, next friend and Trustee (Guardian), George A. Schultz, Donald E. Shay, Jr., by his father, next friend and Guardian, Donald E. Shay, Sr., Jonathan B. Bednarek, by his father and next friend, John Bednarek, Vincent A. Chiarello, by his mother and next friend, Anne Chiarello, Joseph Peter Fanning, by his wife and next friend, Linda Fanning, Paul O. Meder, by his wife and next friend, Jane M. Meder, John F. O'Grady, by his father and next friend, John M. O'Grady, Leonard Robertson, by his father and next friend, Struan Robertson, Philip Craig, by his brother and next friend, John P. Craig, Brent E. Davis, by his father and next friend, Russell H. Davis, Jr., Harley H. Hall, by his wife and next friend, Mary Louise Hall, Donald F. Lindland, by his wife and next friend, Barbara Ann Lindland, James M. Rozo, by his father and next friend, Samuel Rozo, Charles E. Shelton, by his wife and next friend, Dorothy M. Shelton, Robert L. Standerwick, by his wife and next friend, Carolyn Standerwick, Michael B. Varnado, by his father, next friend and Curator (Guardian), Housley Varnado, and Milton J. Vescelius, by his wife and next friend, Jeanene Vescelius, Plaintiffs-Appellants, v. James E. CARTER, Jr., President of the United States, Harold S. Brown, Secretary of Defense, John C. Stetson, Secretary of the Air Force, Clifford L. Alexander, Secretary of the Army and W. Graham Claytor, Jr., Secretary of the Navy, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided March 10, 1978.

Attorney(s) appearing for the Case

Dermot G. Foley, New York City (Kaplan, Kilsheimer & Foley and John A. K. Bradley, New York City, on the brief), for plaintiffs-appellants.

Elaine C. Buck, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., and Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for defendants-appellees.

Before MEDINA, LUMBARD and GURFEIN, Circuit Judges.

PER CURIAM:

Earl P. Hopper, Jr., and twenty other servicemen, who have been listed as captured or missing in action in Southeast Asia, and who either have been or are about to be subject to determinations of death under the Missing Persons Act, 37 U.S.C. §§ 555 and 556, appeal — by their parents or "next friends" — from a September 29, 1977, order of the Eastern District of New York. By that order, Judge Weinstein denied plaintiffs' motion...

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