569 F.2d 607 (D.C. Cir. 1977), 75-2088, Ralpho v. Bell

Docket Nº:75-2088.
Citation:569 F.2d 607
Party Name:Mister RALPHO, Appellant, v. J. Raymond BELL, Chairman, Foreign Claims Settlement Commission of the United States, et al.
Case Date:March 29, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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569 F.2d 607 (D.C. Cir. 1977)

Mister RALPHO, Appellant,

v.

J. Raymond BELL, Chairman, Foreign Claims Settlement

Commission of the United States, et al.

No. 75-2088.

United States Court of Appeals, District of Columbia Circuit

March 29, 1977

Argued April 14, 1976.

Rehearing Denied Sept. 12, 1977.

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Jack Lipson, Washington, D.C., with whom Rosalind C. Cohen, Washington, D.C., was on the brief for appellant.

Barbara L. Herwig, Atty., Civ. Div., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., and Ronald R. Glancz, Atty., Civ. Div., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This deceptively difficult case, like Melong v. Micronesian Claims Commission, 1 decided today, arises under the Micronesian Claims Act of 1971, 2 which sets up a fund for compensation of losses incurred by Micronesians during World War II and establishes the Commission as the agency to administer the fund. Appellant Ralpho, a claimant, brought suit in the District Court alleging that his right to a fair hearing was abridged by the Commission's reliance upon "secret" extra-record evidence in determining the amount to be awarded him. 3 Ralpho sought mandatory, injunctive and declaratory relief for himself and on behalf of those similarly situated.

Without passing on the propriety of class litigation, 4 the District Court dismissed Ralpho's action for lack of subject matter jurisdiction. The sole basis for the ruling was a provision 5 of the Act advanced as a prohibition on judicial review of any action the Commission might take. Because we conclude that this provision does not foreclose review 6 of the constitutional issue appellant presents, 7 or narrowly limited consideration

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of the statutory transgression he alleges, 8 we reverse the judgment of dismissal and remand the case to the District Court with instructions on further procedures.

I. FACTS AND PRIOR PROCEEDINGS

Micronesia is the generic term covering a large number of small islands scattered over vast stretches of the South Pacific. During World War II, Japanese 9 fortifications in Micronesia were targets of a major American offensive. Squarely in the path of the onslaught, on the island of Jaluit, was Ralpho's house. A few years previously Ralpho, who had been a carpenter for a Japanese firm operating in the islands, had built the house himself with the aid of his family, using materials purchased at a discount from his employer. The house and the personalty in it were totally destroyed by American bombardment of the island. 10

American forces ultimately secured Micronesia and used the islands as staging areas for subsequent operations against Japan. Much land and some personal property were expropriated for American military use. The islands continued de facto in American possession until 1947, when the United Nations designated Micronesia as a Trust Territory and the United States as its administrator. 11 In accepting trusteeship, the United States agreed to discharge certain responsibilities to the Micronesian populace 12 and to abide by Chapter XII of the United Nations Charter, 13 which established the International Trusteeship System.

In their final treaty of peace, the United States and Japan undertook another "duty," binding themselves in principle to compensate those Micronesians who, like Ralpho, had suffered as a result of the hostilities. 14 More than a decade of diplomatic intractability, however, prevented principle from becoming practice. 15 The truculence of the two powers obscured the equities of the Micronesian claims to compensation, and negotiations broke off until the Trusteeship Council of the United Nations issued a strongly worded suggestion that the United States and Japan resume them to fulfill their commitment to the islanders. 16 Finally, in 1969, the two countries effected a compromise by an exchange

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of diplomatic notes. 17 Each disclaimed legal liability for injuries visited upon the Micronesians during the war, 18 but agreed to contribute ex gratia the equivalent 19 of $5 million to a fund, to be administered by the United States as trustee, for the satisfaction of all Micronesian "presecure" claims those arising before the islands were secured to the United States. 20

Two more years of waiting followed while Congress considered various plans for administering the fund. After several false starts, Congress enacted the Micronesian Claims Act of 1971. 21 The Act established a five-member Micronesian Claims Commission 22 to distribute both the presecure fund under Title I and, under Title II, a fund of $20 million for the satisfaction of certain "post-secure" claims against the United States. 23 The Act also imposed a strict timetable: All claims were to be filed within one year 24 and the Commission was to wind up its affairs no later than three years after the filing deadline. 25 To promote this degree of expedition, the Commission was required to give extensive publicity to its activities 26 and to provide assistance to Micronesians in preparing claims. 27 Initial decisions were to be made on the basis of the claimant's filing, 28 and a hearing was to become available only upon request of a claimant dissatisfied with the initial award. 29 Since the $5 million fund was intended to satisfy all presecure claims, if necessary by proration 30, payment might be delayed in the discretion of the Secretary of the Interior, 31 and no one would receive payment who had not executed a full release to the United States and Japan for any alleged liability on the claim. 32 Section 2020 of the Act provided additionally that

any such settlements made by such Commission and any such payments made by the Secretary (of the Interior) under the authority of title I or title II . . . shall be final and conclusive for all purposes, notwithstanding any other provision of law to the contrary and not subject to review. 33

During its early work in Micronesia, the Commission was alerted to the difficulty of determining the value that Micronesian properties had in the early 1940's. This difficulty was partly attributable to the lamentable passage of time between the war and the creation of the Commission, but it was also a consequence of the primitive

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economy of Micronesia under Japanese mandate, 34 much of which was conducted on a nonmonetary barter basis. To facilitate disposition of claims, then, the Commission conducted interviews and examined records of various sorts in order to get a composite picture of the average wartime values of goods and services in Micronesia. 35 The results of this survey were assembled in a guide about 40 pages in length, resembling a price list, which was frequently updated and expanded as the need arose. 36 In its 1973 annual report, the Commission explained that the study was consulted "in the absence of better evidence" on the issue of value and that sparse presentations by claimants often made such consultation necessary. 37

With the assistance of an English-speaking representative, Ralpho filed a claim for the destruction of his house. The only information in the filing that could have given the Commission a clue to its value was Ralpho's estimate of $234.40 as the amount of damage 38 and his statement that the structure was 32 by 34 feet in size. 39 The Commission's August 15, 1973, award, set out in pertinent part in the margin, 40 declared that the Commission had made the study and that, "upon consideration of the record, including the Commission's study," Ralpho was entitled to $370. In the study, the value of a "Trukese" style house was listed as 34 cents per square foot, 41 and at that rate Ralpho's house was worth $369.92.

Ralpho requested a hearing and thereafter, on January 7, 1974, his counsel 42 asked that the value study be made available for inspection and copying under the Freedom of Information Act. 43 This request the Commission's chief counsel refused. 44 At the hearing on January 17, Ralpho testified that the materials with which the house was constructed, which he purchased from his employer for $210.96, would have cost $234.40 if bought elsewhere. He estimated the value of the family labor used at $86.73. Another witness by stipulation an expert carpenter, testified that in 1940 Ralpho's house would have cost $656.32 to build. 45

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The Commission's post-hearing award merely recited the evidence and gave Ralpho $298 for the house. 46 Thereafter, the value study was released to Ralpho's counsel 47 and Ralpho moved for reconsideration, but that request was denied. 48

This litigation then commenced. The gravamen of Ralpho's complaint is that the Commission's reliance on the "secret evidence" 49 in the value study without affording Ralpho the opportunity to examine and rebut it is a violation of due process, of the Commission's own regulations, of the law of the Trust Territory, and of the United States' obligation under the United Nations Charter and the Trusteeship Agreement.

The District Court dismissed the action, evidently for lack of subject matter jurisdiction since it construed Section 2020, the aforementioned finality provision of the Micronesian Claims Act, 50 to preclude review. Thus the primary issue on appeal is whether judicial relief is available to Ralpho and, if so, on what basis it may be afforded. We need not address the hydra-like array of possibilities 51 that he suggests, for we find

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