Schilling v. Rogers/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

363 U.S. 666

Walter SCHILLING, Petitioner,  v.  William P. ROGERS, Attorney General.

 Argued: Feb. 29 and March 1, 1960. --- Decided: June 20, 1960

Section 32(a) of the Trading with the Enemy Act (added by 60 Stat. 50, as amended, 50 U.S.C.Appendix, § 32(a), 50 U.S.C.A.Appendix, § 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; ^[1] (2) he was not a member of any of several excluded classes, summarized in the margin; ^[2] (3) the property was not used pursuant to a 'cloaking' arrangement, whereby the interest of an ineligible person in the property was concealed; ^[3] (4) there is no danger of liability in respect of the property attaching to the Custodian under the renegotiation statutes; ^[4] and (5) 'such return is in the interest of the United States.' ^[5]

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. ^[6] The question for decision is whether the District Court had jurisdiction to review a determination of the Director, Office of Alien Property, sanctioned by the respondent Attorney General, holding this proviso inapplicable to the facts presented by the petitioner's claim. ^[7]

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. ^[8] The Attorney General refused review. Petitioner then sued in the District Court to review the administrative determination, claiming it to have been arbitrary and illegal. The court denied the Government's motion to dismiss the complaint for want of jurisdiction. The Court of Appeals reversed, holding, in line with its own prior course of decisions, that judicial review of the administrative disposition was precluded by § 7(c) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 7(c). 106 U.S.App.D.C. 8, 268 F.2d 584. Because of the importance of the question in the proper administration of the Trading with the Enemy Act we brought the case here. 361 U.S. 874, 80 S.Ct. 138, 4 L.Ed.2d 112. For reasons given hereafter we affirm the judgment below.

Petitioner's principal reliance is upon § 10 of the Administrative Procedure Act which provides for judicial review of agency action '(e)xcept 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, 5 U.S.C.A. § 1009. We find that both such limitations are applicable here.

'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. of America v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 18, 80 L.Ed. 54, and it speaks to the future as well as the past. See also Central Union Trust Co. of New York v. Garvan, 254 U.S. 554, 568, 41 S.Ct. 214, 216, 65 L.Ed. 403.

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. ^[9] While § 9(c) also entitles certain classes of 'enemies' enumerated in § 9(b) similarly to sue in the courts to recover vested property whose return is authorized under § 9(b), those sections apply only to World War I vestings. See Feyerabend v. McGrath, 89 U.S.App.D.C. 33, 189 F.2d 694; cf. Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165. Although § 32(a) broadened the categories of those having an enemy status who were eligible for the return of property vested during World War II, unlike § 9(c) it contains no express provision for judicial relief in respect of such claims.

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 s 9(c) with respect to certain enemy claims arising out of World War I vestings. The original version of what ultimately became § 32 did contain a provision for judicial relief comparable to that in § 9(c), not applicable, however, to property of enemy national-residents, as well as a 'sole relief and remedy' provision comparable to that in § 7(c)-H.R. 4840, § 32(b), (c), in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives on H.R. 4840, 78th Cong., 2d Sess., pp. 1-2-but the subsequent draft of the bill, substantially in the form as finally enacted in March 1946 (60 Stat. 50), omitted both provisions. See H.R. 3750, in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., pp. 1-2. While the legislative record contains no explanation of these omissions, the committee hearings on H.R. 3750 and those on subsequent amendments to the Act preclude the view that it was contemplated that persons having an enemy status, still less those who were nationals and residents of enemy countries, should have the right of recourse to the courts with respect to administrative denials of return claims.

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.

And when a few months later, in August 1946, various amendments to the statute were considered and the § 32(a)(2)(D) proviso was added (60 Stat. 930), § 32 came under severe criticism because of the absence of provisions for judicial relief in respect of return claims by technical enemies. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., pp. 57-59, 61, 62-63. The affording of such relief to enemy nationals was, however, at no time suggested. Congress, nevertheless, permitted § 32 to stand without enacting provisions for such judicial relief, ^[10] and later proposed legislation of that character also failed of enactment. See S. 2544, 82d Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess. ^[11]

The conclusion which the history of § 32 impels is confirmed by the text of the section and other provisions of the Act. The absence of any provision for recourse to the courts in connection with § 32(a) return claims contrasts strongly with the care that Congress took to provide for and limit judicial remedies with respect to other aspects of the section and other provisions of the Act. See, e.g., §§ 32(d), 32(e), 32(f), ^[12] 33, 34(e), 34(f), 34(i). It is not of moment that these provisions concerned direct judicial relief, and not court review of denials of administrative relief. The point is that in this Act Congress was advertent to the role of courts, and an absence in any specific area of any kind of provision for judicial participation strongly indicates a legislative purpose that there be no such participation. Beyond this, the permissive terms in which the § 32 return provisions are drawn (363 U.S. at page 667, 80 S.Ct. at page 1290) persuasively indicate that their administration was committed entirely to the discretionary judgment of the Executive branch 'without the intervention of the courts.' See Work v. United States ex rel. Rives, 267 U.S. 175, 182, 45 S.Ct. 252, 254, 69 L.Ed. 561.

Petitioner, however, relying on McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, 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 nonetheless entitled to such review on the issue of his eligibility under the § 32(a)(2)(D) proviso, the only issue here involved. The Kristensen case, involving eligibility for suspension of deportation under § 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. § 1254, 8 U.S.C.A. § 1254), bears little resemblance to the situation involved here. See Heikkila v. Barber, 345 U.S. 229, 233, 73 S.Ct. 603, 605, 97 L.Ed. 972; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61. The structure of § 32(a) does not permit of any such distinction in this case. Compare H.R. 4840, 78th Cong., 2d Sess., § 32(a). Indeed, it is not certain whether petitioner's theory of partial reviewability would apply only to the proviso with which he is concerned; to all of paragraph (2), but only to that paragraph; or to paragraphs (1), (3), and (4) as well (see 363 U.S. at pages 667-668, 80 S.Ct. at pages 1290-1291, and notes 1-4). None of these alternatives is acceptable. As to the first and second, no reason appears why either of these categories should be singled out for special treatment, while the third would make reviewable determinations which involve factors with which only the Executive Branch can satisfactorily deal. See, e.g., Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., p. 4 (proof of prevesting ownership); Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 5089, 79th Cong., 2d Sess., p. 37 (proof of 'cloaking' arrangements). Beyond that, we think the congressional decision to spell out in some detail certain limitations on the power it was conferring on the Executive was not designed to bestow rights on claimants, arising out of an assertedly too-narrow reading by the Executive of the discretionary power given him. Rather we consider the specifications of paragraphs (1) through (4) as designed to provide guides for the Executive, thereby lessening the administrative burden of decision. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., p. 19.

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 (363 U.S. at page 670, 80 S.Ct. at page 1292), is unavailing to the petitioner. ^[13]

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, 14 S.Ct. 1047, 1056, 38 L.Ed. 1014. 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 acted beyond the scope of his powers, where the availability of judicial review would be attended by quite different considerations than those controlling here. Cf., e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210.

Finally, petitioner's reliance on the Declaratory Judgments Act, 28 U.S.C..A. §§ 2201, 2202 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 Judgments Act is not an independent source of federal jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194; 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.

Affirmed.

Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.

Notes

1. § 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 * * *.'
2. § 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 persons, who were present or engaged in business there between Dec. 7, 1941, and Mar. 8, 1946; and (E) certain foreign corporations or associations which, after Dec. 7, 1941, were controlled by persons falling within the above categories.
3. § 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 * * *.'
4. § 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 * * *.'
5. § 32(a)(5).
6. § 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 present (other than in the service of the United States) in the territory of such nation or in any territory occupied by the military or naval forces thereof or engaged in any business in any such territory: Provided, That notwithstanding the provisions of this subdivision (D) return may be made to an individual who, as a consequence of any law, decree, or regulation of the nation of which he was then a citizen or subject, discriminating against political, racial, or religious groups, has at no time between December 7, 1941, and the time when such law, decree, or regulation was abrogated, enjoyed full rights of citizenship under the law of such nation * * *.'
7. On May 16, 1946, the President delegated his functions under § 32(a) to the Alien Property Custodian. Executive Order No. 9725, 11 Fed.Reg. 5381, 50 U.S.C.A.Appendix, § 20 note. On Oct. 15, 1946, the functions of the Custodian were transferred to the Attorney General. Executive Order No. 9788, 11 Fed.Reg. 11981, 50 U.S.C.A.Appendix, § 6 note.
8. 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, racial or religious group that was discriminated against. Anti-Nazis and non-Nazis do not constitute a political group.' (Citing past administrative decisions.)
9. Section 9(a) authorizes '(a)ny person not an enemy or ally of enemy' (defined in § 2 of the Act, 50 U.S.C.A.Appendix, § 2 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.Appendix, § 9(a), 50 U.S.C.A.Appendix, § 9(a). As a German national and resident, petitioner is concededly an 'enemy' under the statute.
10. At the same time, however, Congress enacted other provisions relating to judicial remedies, § 33, 50 U.S.C.A.Appendix, § 33 providing a statute of limitations on the commencement of suits under § 9, and § 34, 50 U.S.C.A.Appendix, § 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, 50 U.S.C.A.Appendix, § 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.
11. 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 Administration of the Trading with the Enemy Act, Senate Committee on the Judiciary, pursuant to S.Res. 245, 82d Cong., 2d Sess., as amended by S.Res. 47, and S.Res. 120, 83d Cong., 1st Sess.-contain any suggestion that judicial review was contemplated in connection with such claims.
12. 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.
13. 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.C.o., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408; Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; Federal Maritime Board v. Isbrandtsen, 356 U.S. 481, 496-498, 78 S.Ct. 851, 860-862, 2 L.Ed.2d 926. 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.