Loomis v. Rogers

• Decision Date: 06 March 1958
• Docket Number: No. 13907.,13907.
• Citation: 254 F.2d 941
• Parties: Homer L. LOOMIS, Appellant, v. William P. ROGERS, Attorney General of the United States, et al., Garnishees, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

254 F.2d 941 (1958)

Homer L. LOOMIS, Appellant, v. William P. ROGERS, Attorney General of the United States, et al., Garnishees, Appellees.

No. 13907.

United States Court of Appeals District of Columbia Circuit.

Argued January 15, 1958.

Decided March 6, 1958.

Petition for Rehearing Denied June 16, 1958.

Mr. James C. Toomey, Washington, D. C., with whom Mr. Walter E. Gillcrist, Washington, D. C., was on the brief, for appellant.

Miss Marbeth Miller, Attorney, Department of Justice, for appellees. Messrs. George B. Searls and Irwin A. Seibel, Attorneys, Deparment of Justice were on the brief for appellees. Mr. Myron C. Baum, Attorney, Department of Justice, also entered an appearance for appellees.

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

PER CURIAM.

The appellant, Homer L. Loomis, appeals from an order of the United States District Court for the District of Columbia denying the issuance of a writ of attachment against a fund of $151,599.45 on deposit with appellee Priest, the Treasurer of the United States, and vested in appellee Rogers, the Attorney General of the United States, in his capacity as successor to the Alien Property Custodian. The fund represents the proceeds of the sale of a cargo of oil owned by the Italian Navy and sold pursuant to court order in a 1941 forfeiture proceeding against the Italian vessel S. S. Brennero in the United States District Court for the District of New Jersey. The Alien Property Custodian on July 23, 1942, acting under authority of the Trading with the Enemy Act,¹ seized the fund and vested in himself all the interest of the Italian Government therein.

April 10, 1957, the Attorney General published notice of intention to return the fund to the former owner, the Italian Government. The intended return is pursuant to a Joint Resolution of Congress passed August 5, 1947, 61 Stat. 784, authorizing the President to return, in accordance with the procedures set forth in § 32(f) of the Trading with the Enemy Act, vested property which at the time of its vesting was the property of the Italian Government or of Italian nationals.

On the day designated for return of the fund, May 10, 1957, Loomis filed a complaint in the District Court naming as defendants the Italian Government, the Attorney General of the United States and the Treasurer of the United States. The court authorized Loomis to commence the action in forma pauperis. His complaint prayed for judgment against the Italian Government in the amount of $2,530,000 for legal services performed and expenses incurred by him in representing certain Italian vessels and their crews. The complaint also asked that a writ of attachment be issued against the Attorney General and the Treasurer to attach the fund of $151,599.45 before it could be delivered to the returnee. The District Court refused to issue the writ unless Loomis first filed a bond as required by § 16-301 of the D.C.Code (1951) to secure the payment of damages in case of wrongful attachment.

Acting upon motions filed by Loomis, the District Court allowed the Attorney General and the Treasurer to be named as garnishees instead of as defendants, but refused to vacate the earlier order denying attachment without a bond, and refused injunctive relief requested by Loomis to restrain the appellees from returning the fund. The Attorney General, however, voluntarily withheld any action to return the fund during the motion to vacate and for the period necessary to perfect an appeal. This court, by order dated June 7, 1957, stayed the return of the fund pending disposition of this appeal.

Appellant contends that § 32(f) of the Trading with the Enemy Act gives him a right to attach the fund in order that it may be applied in partial satisfaction of his debt claim against the Italian Government. He further claims the District Court erred in requiring a bond as a prerequisite to the issuance of a writ of attachment since that court's authorization to proceed in forma pauperis precluded the necessity of filing a bond; and because there could be no injury to the Italian Government from this attachment, since under § 32(f) that government acquired no right of action to compel the return of the fund by virtue of the notice of intention to return.

We need not reach the question whether Loomis was required to file a bond as a prerequisite to an attachment, for we find the District Court lacks jurisdiction to attach the fund. Section 32(f), under which appellant claims the right to attach, provides for the publication of notice of intention to return at least thirty days prior to the return of vested property to its former owner, and then states:

"* * * After publication of such notice of intention and prior to revocation thereof, the property or interest or proceeds specified shall be subject to attachment at the suit of any citizen or resident of the United States * * * in the same manner as property of the person to whom return is to be made * * *."

The purpose of § 32(f), including the requirement that notice of intention to return be published, is "to permit American creditors to attach property about to be returned before it leaves the country." S.Rep. No. 920, 79th Cong., 2d Sess. 7 (1946). That is, for the purpose of attachment, property about to be returned is treated as property of the returnee for a period of at least thirty days, thus guaranteeing American creditors an opportunity to exercise any right of attachment they may have before the property can be physically...