Schilling v. Rogers
Opinion of the Court
delivered the opinion of the Court.
Section 32 (a) of the Trading with the Enemy Act (added by 60 Stat. 50, as amended, 50 U. S. C. App. § 32 (a)) authorizes the return in certain circumstances of property vested by the United States during World War II. Under that provision:
“The President, or such officer or agency as he may designate, may return any property or interest vested in or transferred to the Alien Property Custodian (other than any property or interest acquired by the United States prior to December 18, 1941), or the net proceeds thereof, whenever the President or such officer or agency shall determine . .
that the following conditions are met: (1) the claimant was the owner of the property in question prior to its vesting, or is the legal representative or successor in interest of the owner;
The particular provision involved in this case is paragraph 2 (D) of § 32 (a), which makes ineligible citizens of certain enemy countries who were present in those countries after the onset of hostilities, and its first proviso (added by 60 Stat. 930), which exempts from that ineligibility certain persons who were the victims of persecution.
Petitioner, a national and resident of Germany at all material times, duly filed with the Attorney General a claim under the § 32 (a) (2) (D) proviso for the return of the proceeds of certain property vested by the respondent’s predecessors in 1942, 1947, and 1948, asserting an interest therein of some $68,500. He alleged that throughout the relevant period he, as an “anti-Nazi,” claimed to have been a discriminated-against political group, had been deprived of full rights of German citizenship, in that he had been denied admission to the practice of law. A Hearing Examiner recommended allowance of the claim, but his recommendation was rejected by the Director on the ground that petitioner was ineligible for relief under the §32(a)(2)(D) proviso.
Petitioner’s principal reliance is upon § 10 of the Administrative Procedure Act which provides for judicial review of agency action “[ejxeept so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” 60 Stat. 243, 5 U. S. C. § 1009. We find that both such limitations are applicable here.
Section 7 (c) of the Act provides:
“The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred ... to the Alien Property Custodian . . . shall be that provided by the terms of this Act . . . .” 40 Stat. 1021.
We perceive no basis for petitioner’s contention that § 7 (c) limits only the remedies available to nonenemies under § 9 (a), or for construing § 7 (c), passed in 1918, as not being applicable to § 32, passed in 1946. The language of the section is “all-inclusive,” Becker Steel Co. v. Cummings, 296 U. S. 74, 79, and it speaks to the future
The only express provision in the Trading with the Enemy Act for recourse to the courts by those claiming the return of property vested during World War II is that contained in § 9 (a). That section, however, is applicable only to persons not enemies or allies of enemies as defined in the relevant statutes, and hence is not available to this petitioner, an enemy national.
The question then is whether a right to such relief can fairly be implied, for we shall assume that if such be the case the requirements of § 7 (c) would be satisfied. The terms of § 32 and its legislative history speak strongly against any such implication. The absence in § 32 of any provision for judicial relief respecting “enemy” claims for the return of property vested during World War II stands in sharp contrast to the presence of such a provision in
Speaking to H. R. 3750 at the initial committee hearing, Mr. Markham, then Alien Property Custodian, stated:
“I want to be sure I make this clear. Supposing a person applies to the Custodian for the return of a property, and for reasons that I deem appropriate under the bill I refuse to return the property. Now, we'will say this person would have to be a technical enemy, a Frenchman. He has no right to compel me to return it under this bill.” Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 3750, 79th Cong., 1st Sess., p. 14; see also pp. 11, 15.
Petitioner, however, relying on McGrath v. Kristensen, 340 U. S. 162, contends that even though he might not be entitled to judicial review of an adverse administrative determination on the merits of his claim, he is none
We conclude that the Trading with the Enemy Act excludes a judicial remedy in this instance, and that because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act, by its own terms (ante, p. 670), is unavailing to the petitioner.
Petitioner’s other contentions may be dealt with shortly. It is urged that judicial review is in any event available because the complaint, whose allegations as the case comes here must be taken as true, alleges that the administrative action was arbitrary and capricious. However, such conclusory allegations may not be read in isolation from the complaint’s factual allegations and the considerations set forth in the administrative decision upon which denial of this claim was based. See Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 401. So read, it appears that the complaint should properly be taken as charging no more than that the administrative action was erroneous. This is not a case in which it is charged either that an administrative official has refused or failed to exercise a statutory discretion, or that he has
Finally, petitioner’s reliance on the Declaratory Judgment Act carries him no further. Section 7 (c) of the Trading with the Enemy Act embraces that form of judicial relief as well as others. Additionally, the Declaratory Judgment Act is not an independent source of federal jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 671; the availability of such relief presupposes the existence of a judicially remediable right. No such right exists here.
We conclude that the Court of Appeals correctly held that the District Court lacked jurisdiction over this action, and that its judgment must be
Affirmed.
§ 32 (a)(1): “That the person who has filed a notice of claim for return, in such form as the President or such officer or agency may prescribe, was the owner of such property or interest immediately prior to its vesting in or transfer to the Alien Property Custodian, or is the legal representative (whether or not appointed by a court in the United States), or successor in interest by inheritance, devise, bequest, or operation of law, of such owner . . .
§ 32 (a) (2) disqualifies: (A) the Governments of Germany, Japan, Bulgaria, Hungary, and Rumania; (B) corporations or associations organized under the laws of such nations; (C) persons voluntarily resident since Dec. 7, 1941, in any such nation, other than American citizens, certain diplomatic officers, or certain persecuted persons; (D) citizens of such nations, other than certain persecuted
§ 32 (a) (3): “that the property or interest claimed, or the net proceeds of which are claimed, was not at any time after September 1, 1939, held or used, by or with the assent of the person who was the owner thereof immediately prior to vesting in or transfer to the Alien Property Custodian, pursuant to any arrangement to conceal any property or interest within the United States of any person ineligible to receive a return under subsection (a) (2) of this section . . . .”
§ 32 (a) (4): “that the Alien Property Custodian has no actual or potential liability under the Renegotiation Act or the Act of October 31, 1942 (56 Stat. 1013; 35 U. S. C. §§ 89-96), in respect of the property or interest or proceeds to be returned and that the claimant and his predecessor in interest, if any, have no actual or potential liability of any kind under the Renegotiation Act or the said Act of October 31, 1942; or in the alternative that the claimant has provided security or undertakings adequate to assure satisfaction of all such liabilities or that property or interest or proceeds to be retained by the Alien Property Custodian are adequate therefor . . . .”
§32 (a)(5).
§ 32 (a) (2) (D) disqualifies: “an individual who was at any time after December 7, 1941, a citizen or subject of Germany, Japan, Bulgaria, Hungary, or Rumania, and who on or after December 7, 1941, and prior to the date of the enactment of this section, was pres
On May 16, 1946, the President delegated his functions under § 32 (a) to the Alien Property Custodian. Exec. Order No. 9725, 11 Fed. Reg. 5381. On Oct. 15, 1946, the functions of the Custodian were transferred to the Attorney General. Exec. Order No.’ 9788, 11 Fed. Reg. 11981.
The Director stated the essence of his decision as follows: “Even if it were to be assumed that denial of a license to practice law deprived claimant of full rights of citizenship, his claim must be disallowed for the reason that he was not a member of a political,
Section 9 (a) authorizes “[a]ny person not an enemy or ally of enemy” (defined in § 2 of the Act, as supplemented by the First War Powers Act, 1941, 55 Stat. 838) to sue in equity for the return of vested property in which he claims an interest, either in the District Court for the District of Columbia or in the District Court of the district in which the claimant resides. 40 Stat. 419, as amended, 50 U. S. C. App. § 9 (a). As a German national and resident, petitioner is concededly an “enemy” under the statute.
At the same time, however, Congress enacted other provisions relating to judicial remedies, § 33 providing a statute of limitations on the commencement of suits under § 9, and § 34 providing for judicial review of administrative determinations on debt claims allowable out of vested property (60 Stat. 925). In connection with the former section there was spread in the Congressional Record, with the approval of the Chairman and Ranking Member of the House Judiciary Committee, a letter from the Custodian stating his understanding that “this amendment is not to be regarded as implying that there is judicial review under section 32.” 92 Cong. Rec. 10486. Similarly, in connection with the enactment of § 32, a few months before, Congress had added to the Act § 20 providing for judicial review of administrative -allowances of counsel fees in return proceedings before the Custodian, 60 Stat. 54. See also S. Rep. No. 920, 79th Cong., 2d Sess., p. 7.
More particularly with reference to the § 32 (a) (2) (D) proviso, neither the Committee hearings preceding its enactment, see Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess.; cf. Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H. R. 5089, 79th Cong., 2d Sess., nor later Senate or House Reports referring to the proviso — see S. Rep. No. 784, 81st Cong., 1st Sess.; H. R. Rep. No. 2338, 81st Cong., 2d Sess.; S. Rep. No. 600, 82d Cong., 1st Sess.; Final Report of the Subcommittee on
This section, which requires the Custodian to publish in the Federal Register a 30-day notice of his intention to return vested property to claimants other than residents of the United States or domestic corporations, provides that publication of such notice “shall confer no right of action upon any person to compel the return of any such property,” and further that any such notice may be revoked by the Custodian by appropriate publication in the Federal Register.
The fact that in a third-party suit affecting returned property, the courts must, in accordance with § 32 (e), determine, if relevant, the claimant’s eligibility under the § 32 (a) (2) (D) proviso, does not militate against this conclusion. First, it is far from clear that in such circumstances the doctrine of primary jurisdiction would not call for a referral of that issue to the Attorney General. Cf. United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474; Far East Conference v. United States, 342 U. S. 570; Maritime Board v. Isbrandtsen, 356 U. S. 481, 496-498. Moreover, even if necessity compelled judicial determination in suits between private parties of the issue ordinarily disposed of under § 32 (a), we would not be justified, in the context of the other provisions of this statute, in inferring from that a congressional willingness to have Executive determinations reviewed in court.
Dissenting Opinion
dissenting.
This Court has gone far towards establishing the proposition that preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U. S. 184; Harmon v. Brucker, 355 U. S. 579; Stark v. Wickard, 321 U. S. 288; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94. Generalizations are dangerous, but with some safety one can say that judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated.
Section 7 (c) of the Act states that the Act’s remedies shall be “[t]he sole relief and remedy” of claimants of vested property, and, to be sure, this language is “all-inclusive,” Becker Steel Co. v. Cummings, 296 U. S. 74, 79. Let us, then, take a close and fully-focused look at what those remedies include, and compare them with what petitioner seeks.
Section 9 (a) of the Act, under which petitioner of course makes no claim, provides a judicial remedy for those who are not enemies and not allies of enemies; they may sue in equity' for the return of their property.
Section 32 (a), under which petitioner has applied for relief, on the other hand provides simply for an administrative remedy. That it does, of course, under § 7 (c) precludes the inference of any independent judicial remedy such as § 9 provides. But there is no reason why it should preclude the inference that administrative action taken under it should be subject to judicial review. The courts have developed many principles defining and limiting the quantum of judicial review that may be afforded administrative adjudication. This generally narrow character of judicial review, in contrast to an independent lawsuit directed at the same end as an administrative adjudication, points up the distinction between the independent action under § 9 and what is contended for here. In the latter, the courts cannot order the return of the property. They simply may say that the administrator cannot stand on the ground he gave for not returning it.
The Court points to the legislative history of § 32 (a) as indicating a contrary conclusion. It says that a judicial remedy was originally provided for in early versions of the bill which added § 32 (a) to the statute, but that the final enactment omitted it. This would be very relevant if what had been originally contained in the bill had been a provision for judicial review of action taken under § 32 (a), such as what petitioner now contends is implicit. But it was not; it was rather a provision for an independent judicial remedy, patterned entirely in the style of § 9.
The Court does not demonstrate any policy on which Congress may have been acting and from which it might be inferred that judicial review was impliedly precluded under § 32. Congress clearly precluded independent law
There is then clearly established jurisdiction to review under the general principles which find expression in § 10 of the Administrative Procedure Act; the statute does not “preclude judicial review.” 60 Stat. 243, 5 U. S. C. § 1009. But the Court also holds that, within the meaning of § 10, “agency action is by law committed to agency discretion.” Since want of jurisdiction in the District Court is found, I take it the Court holds that the question, review of which is now sought, which is an issue of statutory construction, is totally and exclusively for the administrative officers to determine — not simply that the courts are to give their determination of this question of law considerable weight. Cf. Labor Board v. Hearst Publications, Inc., 322 U. S. 111, 130; Gray v. Powell, 314 U. S. 402, 411. Once it is established that the statute does not preclude judicial review, this conclusion seems to me untenable. The issue is a question of law; the construction of a detailed and moderately specified standard. It is not like the ultimate determination that the return be “in the interest of the United States,” §32 (a)(5), which is clearly where the ultimate reservoir of discretion lies under § 32 (a). This determination was never reached. We need not speculate about the breadth of judicial inquiry in judicial review where the administrative decision not to return the property is based on that ground, or is based on one of the other grounds under the statute. The quantum of review can be adjusted to the problem before the courts. Here the determination not
See Jaffe, The Right to Judicial Review, 71 Harv. L. Rev. 401, 432.
In pertinent part, § 9 (a) provides:
“ (a) Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy or ally of enemy whose property or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States, or of the interest therein to which the President shall deter*679 mine said claimant is entitled: Provided, That no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title, or interest which he may have in such money or other property. If the President shall not so order within sixty days after the filing of such application or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may institute a suit in equity in the United States District Court for the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or the interest therein to which the court shall determine said claimant is entitled. . . .” 40 Stat. 419, as amended, 50 U. S. C. App. §9 (a).
Section 9 (c) provides:
“(c) Any person whose money or other property the President is authorized to return under the provisions of subsection (b) hereof may file notice of claim for the return of such money or other property, as provided in subsection (a) hereof, and thereafter may make application to the President for allowance of such claim and/or may institute suit in equity to recover such money or other property, as provided in said subsection, and with like effect. The President or the court, as the case may be, may make the same determinations with respect to citizenship and other relevant facts that the President is authorized to make under the provisions of subsection (b) hereof.” As added, 41 Stat. 980, as amended, 50 U. S. C. App. §9(o).
The relevant classes of enemies are set forth in § 9 (b). Petitioner makes no claim under § 9 (c).
In fact, the independent judicial- remedy was not even put in pari materia with the administrative remedy under §32 (a). It simply provided:
“After filing a claim with the Alien Property Custodian pursuant to subsection (a) hereof, a claimant may institute a suit in equity in the United States District Court for the District of Columbia or in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Custodian shall be made a party defendant), to establish that he is not a foreign country or national thereof as defined pursuant to subsection (b) of section 5 hereof, and to establish the interest, right, or title claimed.. The claimant shall obtain a judgment or decree ordering the return to him of the interest, right, or title to which the court shall determine he is entitled, but only if the court shall adjudicate that he is not a foreign country or national thereof . . . §32 (b), H. R. 4840, in Hearing before Subcommittee No. 1, Committee on the Judiciary, House of Representatives, on H. R. 4840, 78th Cong., 2d Sess., pp. 1-2.
This legislation seems to have contemplated a judicial remedy much broader than that of the early provisions before the addition of § 32, see note 4, supra. The bills covered “[a]ny person eligible for a return under this section” (§ 32) and provided that such a person, after filing a notice of claim, might “institute a suit in equity to recover such money or other property in the manner provided by subsection 9 (a) hereof and with like effect.”
One of the grounds on which the administrative officials may decline return under § 32 (a) is that the claimant was not the owner of the property at the time it was vested, or the successor thereof. § 32 (a) (1). Is this simply to be deemed a guide to the administrative discretion in granting returns, or a legal standard?
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