American and European Agencies v. Gillilland

• Citation: 247 F.2d 95
• Decision Date: 27 June 1957
• Docket Number: No. 13447.,13447.
• Parties: AMERICAN AND EUROPEAN AGENCIES, Inc., A New York Corporation, Appellant, v. Whitney GILLILLAND, et al., constituting the Foreign Claims Settlement Commission of the United States, and George M. Humphrey, as Secretary of the Treasury, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

247 F.2d 95 (1957)

AMERICAN AND EUROPEAN AGENCIES, Inc., A New York Corporation, Appellant, v. Whitney GILLILLAND, et al., constituting the Foreign Claims Settlement Commission of the United States, and George M. Humphrey, as Secretary of the Treasury, Appellees.

No. 13447.

United States Court of Appeals District of Columbia Circuit.

Argued March 29, 1957.

Decided June 27, 1957.

Writ of Certiorari Denied November 25, 1957.

Mr. James E. Hughes, of the bar of the Court of Appeals of New York, New York City, pro hac vice, by special leave of Court, with whom Mr. Percy A. Shay, Washington, D. C., was on the brief, for appellant.

Mr. B. Jenkins Middleton, Atty., Dept. of Justice, with whom George Cochran Doub, Asst. Atty. Gen., Messrs. Oliver Gasch, U. S. Atty., and Samuel D. Slade, Atty., Dept. of Justice, were on the brief, for appellees.

Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellees.

Messrs. Philip Levy and Paul M. Rhodes, Washington, D. C., filed a brief on behalf of Steven Ausnit et al., as amici curiae urging affirmance.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and WASHINGTON, Circuit Judges.

Writ of Certiorari Denied November 25, 1957. See 78 S.Ct. 152.

WASHINGTON, Circuit Judge.

The complaint in this case is essentially similar to that in de Vegvar v. Gillilland, 1955, 97 U.S.App.D.C. 126, 228 F. 2d 640, certiorari denied 1956, 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859, and concludes with a prayer that the Foreign Claims Settlement Commission's award to the plaintiff (which was much smaller than desired) be set aside as "null and void," and the case be returned for further hearing. The District Court granted the Government's motion for summary judgment, on the authority of de Vegvar.

Plaintiff-appellant contends that it did not have the hearing referred to in Section 4(h) of the governing Act,¹ which provides in part:

"Any claimant whose claim is denied, or is approved for less than the full amount of such claim, shall be entitled, under such regulations as the Commission may prescribe, to a hearing before the Commission, or its duly authorized representatives, with respect to such claim."

Appellees urge that in fact appellant had an adequate hearing with respect to its claim, including the issue of the value of the claim, citing portions of the record before us in support of this contention. This is the sort of controversy which the courts are accustomed to decide. But here the very section appellant relies on also contains the following restriction on judicial review, which we considered and held controlling in de Vegvar:

"The action of the Commission in allowing or denying any claim under this Act shall be final and conclusive on all questions of law and fact and not subject to review by the Secretary of State or any other official, department, agency, or establishment of the United States or by any court by mandamus or otherwise." Section 4(h).

Appellant, seeking to distinguish de Vegvar, urges that the broad bar to judicial review contained in the passage just quoted was not intended to be read literally, but was to be limited to Commission action taken pursuant to prescribed procedures and then only to questions relating to the merits of a claim. Such a construction is not supported by the legislative history. While it is true that one statement by the principal proponent of the bill in the House, Congressman Ribicoff, referred to non-reviewability as relating to "the merits of claims,"² consideration of the entire legislative history plainly indicates that Congress did not intend to enact a mere partial barrier to review: the courts were told that they had no role to play when the Commission acted to allow or disallow a claim. As a matter of fact, it was the view of Congressman Ribicoff that the Constitution did not allow judicial review of such matters. He made it clear that "The settlement of these claims is strictly within the executive branch of our Government," and added his belief that "three United States Commissioners would administer justice."³

But appellant contends that we must modify the limitation on judicial review in Section 4(h) on the assumption that Congress would not establish procedures for an agency without authorizing the judiciary to enforce compliance. Appellant relies on the numerous cases where, in the absence of clear congressional directions to the contrary, the courts review agency action to insure compliance with prescribed procedures. E. g., Stark v. Wickard, 1944, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733. But the fact that the courts do so in proper cases when Congress has not legislated to the contrary affords no reason for watering down an express congressional statement that there shall not be review. The assumption that Congress must always contemplate judicial correction of erroneous agency action seems to have its basis in the view that Congress lacks other means to enforce its statutory mandates. But this is not so: Congress can, if it wishes, amend the law, allow a claim through a special bill, permit suit in the Court of Claims, or make a special appropriation; certainly it always has power to investigate and to impeach. When Congress tells the courts that there shall not be review, we will not assume, in the absence of something more, that Congress could not have meant what it said. Especially is this true in a case such as this where considerations of speed in the distribution of a fund provide a sound basis for Congress' choice of procedure.

The other contention urged to support a restrictive reading of Section 4(h) is essentially a constitutional argument: Congress may not prevent a court from requiring agency compliance with statutory procedures. If the agency's failure to follow prescribed procedures resulted in the denial of a constitutional right, the validity of a blanket non-reviewability clause would indeed pose a grave and difficult constitutional question.⁴ On the other hand, if the agency's failure to follow prescribed procedures does not result in the denial of a constitutional right, there is no constitutional reason for seeking to narrow the scope of a non-reviewability statute.

In this case, appellant alleges that the Commission denied it the kind of hearing to which it was entitled under the Act. We will assume for present purposes that we have jurisdiction to consider whether the hearing afforded appellant was below the standard of due process of law. Appellant concedes that it was accorded a hearing in which it had opportunity to present its views and to offer evidence to support the merits and proper valuation of its claim. Its assertion is that the constitutional right to a hearing includes the right to know and meet the claims of the opposing party, citing Morgan v. United States, 1938, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129, and Ohio Bell Telephone Co. v. Public Utilities Commission, 1937, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, and that here it was not furnished a staff memorandum on which the Commission relied in making its determination of value. It says that the Commission should have accorded it a further hearing wherein it could offer evidence designed to rebut the conclusions of the memorandum. The cited cases established the requirements of a fair hearing in situations where a governmental agency was affirmatively acting to the detriment of the complaining party by fixing maximum rates (Morgan) or by lowering rates and ordering the complainant to make refunds (Ohio Bell Telephone). The Foreign Claims Settlement Commission is not engaged in that kind of task; rather it has the duty of distributing a governmentally created fund among a class. No claimant, including the appellant, has a right to participate in any amount until the Commission has made an award. In short, a benefit is being conferred, and while it is perhaps true that some minimal form of hearing is necessary even for the performance of such a governmental function, due process in these circumstances surely does not require more than an opportunity for the claimant to be heard. Appellant concedes it was accorded this much. On the showing here we are not required to decide whether Section 4(h) should be narrowly construed to permit review of the validity of a deprivation of a constitutional right.

We conclude, therefore, that the statutory bar, as interpreted in de Vegvar, supra, and in Dayton v. Gillilland, 1957, 100 U.S.App.D.C. 75, 242 F.2d 227, precludes us from granting the type of relief appellant now requests. See also Haas v. Humphrey, 1957, 100 U.S. App.D.C. 401, 246 F.2d 682. The Commission has taken final action allowing appellant's claim (though for a smaller amount than requested), and this is "conclusive on all questions of law and fact" under Section 4(h). The question whether, in obtaining an award of a part of the governmentally created fund, appellant received the type of hearing provided by the statute is one of the "questions of law" not subject to judicial review under the provisions of Section 4 (h). It is essentially similar to the questions presented in de Vegvar, where the claimant said that the Commission had not obeyed the requirements of the governing statute in various procedural and substantive respects. See 97 U.S.App. D.C. at page 127, 228 F.2d at page 641. Here, as in de Vegvar, the statute would be disregarded if we set aside the Commission's action and ordered reconsideration, whether we did so on the merits or to correct alleged procedural defects.

The judgment of the District Court will accordingly be

Affirmed.

WILBUR K. MILLER, Circuit Judge (dissenting).

The principal question...