363 U.S. 666 (1960), 319, Schilling v. Rogers

Docket NºNo. 319
Citation363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478
Party NameSchilling v. Rogers
Case DateJune 20, 1960
CourtUnited States Supreme Court

Page 666

363 U.S. 666 (1960)

80 S.Ct. 1288, 4 L.Ed.2d 1478

Schilling

v.

Rogers

No. 319

United States Supreme Court

June 20, 1960

Argued February 29-March 1, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Petitioner, an alien, brought this action in a Federal District Court to obtain judicial review of an administrative determination by the Director, Office of Alien Property, sanctioned by the Attorney General, that petitioner was not eligible under § 32(a)(2)(D) of the Trading with the Enemy Act, as amended, for the return of property vested by the Alien Property Custodian in which petitioner claimed to have an interest.

Held: judicial review of that administrative determination was precluded by § 7 (c) of the Trading with the Enemy Act, which provides that,

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,

since that Act cannot be construed to provide a judicial remedy for a person such as petitioner. Pp. 667-677.

(a) Section 10 of the Administrative Procedure Act does not entitle petitioner to judicial review of this administrative determination, both because the matter involved is "committed to agency discretion" by § 32(a) of the Trading with the Enemy Act and because judicial review is precluded by § 7(c) of that Act. Pp. 670-676.

(b) A different conclusion is not required on the theory that, by moving to dismiss petitioner's action, respondent admitted petitioner's allegation that the administrative action was arbitrary and capricious. Pp. 676-677.

(c) The Declaratory Judgment Act does not entitle petitioner to judicial review, because relief thereunder is precluded by § 7(c) of the Trading with the Enemy Act. P. 677.

106 U.S.App.D.C. 8, 268 F.2d 584, affirmed.

Page 667

HARLAN, J., lead opinion

MR. JUSTICE HARLAN 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.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 [80 S.Ct. 1291] classes, summarized in the margin;2 (3) the

Page 668

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

Page 669

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. [80 S.Ct. 1292] 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

Page 670

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. 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. 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. 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. of America v. Cummings, 296 U.S. 74, 79, and it speaks to the future

Page 671

as well as the past. See also Central Union Trust Co. v. Garvan, 254 U.S. 554, 568.

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 [80 S.Ct. 1293] 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. 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

Page 672

§ 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.

Page 673

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...

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  • 493 F.Supp.2d 148 (D.Mass. 2007), Civ. A. 07cv10231, Tang v. Chertoff
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
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    ...jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Fox v. Lappin, 441 F.Supp.2d 203, 207 (D.Mass.2005). The other arguments are discussed below. V. W......
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    ...aff'd, 340 F.2d 947 (1st Cir. 1965); Olin Industries, Inc. v. NLRB, 72 F.Supp. 225, 228 (D.Mass.1947). [29] Cf. Schilling v. Rogers, 363 U.S. 666, 670, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, cert. denied, 352 U.S. 896......
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    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
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    ...review. 'The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U.S. 666, 676-677 (80 S.Ct. 1288, 1295-1296, 4 L.Ed.2d 1478) (1960). This determination naturally begins with a delineation of the scope of the Secretary's ......
  • Tang v. Chertoff, 062607 MADC, 07cv10231-NG
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • June 26, 2007
    ...jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Fox v. Lappin, 441 F.Supp.2d 203, 207 (D:Mass.2005). The other arguments are discussed below. V. W......
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299 cases
  • 493 F.Supp.2d 148 (D.Mass. 2007), Civ. A. 07cv10231, Tang v. Chertoff
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • June 26, 2007
    ...jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Fox v. Lappin, 441 F.Supp.2d 203, 207 (D.Mass.2005). The other arguments are discussed below. V. W......
  • 319 F.Supp. 1023 (S.D.N.Y. 1970), 70 Civ. 4980, J. C. Penney Co. v. United States Dept. of Treasury
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • December 3, 1970
    ...aff'd, 340 F.2d 947 (1st Cir. 1965); Olin Industries, Inc. v. NLRB, 72 F.Supp. 225, 228 (D.Mass.1947). [29] Cf. Schilling v. Rogers, 363 U.S. 666, 670, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, cert. denied, 352 U.S. 896......
  • 329 F.Supp. 1331 (S.D.Ohio 1971), Civ. A. 7987, Clermont Nat. Bank v. Citizens Bank Nat. Ass'n
    • United States
    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
    • June 15, 1971
    ...review. 'The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U.S. 666, 676-677 (80 S.Ct. 1288, 1295-1296, 4 L.Ed.2d 1478) (1960). This determination naturally begins with a delineation of the scope of the Secretary's ......
  • Tang v. Chertoff, 062607 MADC, 07cv10231-NG
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • June 26, 2007
    ...jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Fox v. Lappin, 441 F.Supp.2d 203, 207 (D:Mass.2005). The other arguments are discussed below. V. W......
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