Pan American World Airways v. United States

• Decision Date: 13 July 1954
• Docket Number: No. 221-53.,221-53.
• Citation: 122 F. Supp. 682
• Parties: PAN AMERICAN WORLD AIRWAYS, Inc. v. UNITED STATES.
• Court: U.S. Claims Court

122 F. Supp. 682

PAN AMERICAN WORLD AIRWAYS, Inc. v. UNITED STATES.

No. 221-53.

United States Court of Claims.

July 13, 1954.

Robert C. Barnard, Washington, D. C., Henry J. Friendly, New York City, Joseph J. Cantwell, Massapequa, N. Y., James W. Lamberton, Washington, D. C., Ann Thacher Clarke, New York City, and Cleary, Gottlieb, Friendly & Ball, Washington, D. C., on the briefs, for plaintiff.

Carl Eardley, Washington, D. C., Warren E. Burger, Asst. Atty. Gen., Mary K. Fagan, Washington, D. C., on the brief, for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

MADDEN, Judge.

This is an action filed by plaintiff Pan American World Airways, Inc., an air carrier, in which it seeks to recover the sum of $207,092.50. The complaint recites that this amount was exacted from plaintiff by the Immigration and Naturalization Service for detention of United States citizens, passengers on plaintiff's airline, who were seeking to enter the United States; that the expenses were illegally exacted from plaintiff during the period May 25, 1947, to December 24, 1952, under color of statutes¹ and of regulations and rulings of the Immigration and Naturalization Service.² The complaint sets forth three alleged causes of action: (1) a claim founded upon regulations of an executive department and upon statutes of the United States, (2) a claim founded upon the Fifth Amendment to the Constitution, and (3) a claim founded upon an implied contract to refund the money taken from the plaintiff.

The answer of the defendant admits that the Immigration and Naturalization Service had detained citizens and nationals of the United States who were passengers on the plaintiff's aircraft. It further admits that the Immigration and Naturalization Service has collected from the plaintiff for the detention expenses of such citizens and nationals of the United States under the authority of rulings and regulations of the Immigration and Naturalization Service and pursuant to applicable law.

The case is submitted on plaintiff's motion for summary judgment, affidavits in support thereof, defendant's objections thereto, defendant's motion for summary judgment, and affidavits in support thereof.

The basic issues presented are: (1) whether the court has jurisdiction; (2) whether defendant had the right under the Immigration Act of 1917, 39 Stat. 874 et seq., to collect the disputed detention expenses; and (3) whether the payments made by the plaintiff were, in the circumstances, "voluntary," in a sense that would prevent their recovery.

We consider first the question of jurisdiction. For this purpose we assume that the Immigration and Naturalization officials misinterpreted the relevant statute; that the regulations which they purported to make pursuant to the statute were not authorized by the statute and were void; and that there was, therefore, no right in the Government to collect the money here in question from the plaintiff.

The Government urges that, assuming what we have assumed above, the acts of the officials in collecting the money were tortious, and that this court has, therefore, no jurisdiction to entertain a suit for its recovery. In the case of Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, we considered at length substantially the same question. We recognized that the course of decision had not run smoothly, and that the Supreme Court's decision in United States v. Holland-American Line, 254 U.S. 148, 41 S.Ct. 72, 65 L.Ed. 193, and this court's decision in Roger B. Wood v. United States, 61 Ct.Cl. 192, supported the Government's position. However, the considerable body of authority, both in the Supreme Court and in other Federal courts, and the compelling equities of these situations in which the Government admittedly has the citizen's money and seeks to keep it, seemed to us to justify our requiring the Government to disgorge what it has no right to retain.

We repeat our query, made in the Clapp case, supra, as to whether the collection of money by Government officials, pursuant to an invalid regulation, but for the purpose of turning the money into the United States Treasury, is really a "tort" within the meaning of that word as used in the Tucker Act, 28 U.S.C.A. §§ 1346, 1402, 1491, 2401. When Congress, having expressly given this court jurisdiction of claims "founded upon any express or implied contract with the United States", in the very next clause gave the court jurisdiction over claims "for liquidated or unliquidated damages in cases not sounding in tort," it must have supposed that there are non-contractual claims which do not sound in tort. We suggest that the type of claim here involved may be one of them.

We now consider the question whether the money here sued for was illegally exacted from the plaintiff by the Immigration and Naturalization officials. Sections 11 and 15 of Chapter 29 of the Act of February 5, 1917, 39 Stat. 881, which were, before the repeal of that Act by the Immigration and Nationality Act effective December 24, 1952, 8 U.S.C.A. § 1101 et seq., Sections 147 and 151 of Title 8 of the United States Code, are printed in a footnote.³

The exactions here in question were made pursuant to this statute, and ceased, of course, with the repeal of the statute in 1952.

The statute speaks only of the detention of aliens. The charges here in question were for the detention of citizens. Most of the persons detained were "derivative citizens," that is, were persons born abroad, but of American parentage, who, under the applicable statutes, had citizenship and the right to enter the United States as citizens. The Government urges that, since the question of whether these persons were, in fact, of American parentage, had to be investigated, and their detention was necessary for the purpose of the investigation, they were, before their citizenship was verified, "aliens" within the meaning of the statute. We think there is merit in this argument.

The Immigration Act of 1894, 28 Stat. 372, 390, provided, in part:

"In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury."

Persons of Chinese descent claiming derivative citizenship refused to submit to investigation of their citizenship by immigration officials. They gave their names and refused to answer further. Upon being detained, they sought to obtain their liberty by a writ of habeas corpus. The Supreme Court held that "The detention during the time necessary for investigation was not unlawful, even if all these parties were citizens of the United States". United States v. Sing Tuck, 194 U.S. 161, 169, 24 S.Ct. 621, 623, 48 L.Ed. 917. The Court further held that the entrants had to pursue the administrative appeal to the Secretary of the Treasury, although the Court refrained from deciding whether, thereafter, an appeal to the courts would lie upon their claim of citizenship.

The 1894 Act, like the 1917 Act here under construction, spoke only of aliens. In order to administer an act relating to aliens, the first thing an official must do is to ascertain which ones of a mixed group of entrants are aliens. He obviously cannot take each entrant's word for that. It may be necessary to detain the entrant, and, in the case of entrants such as those here involved, the investigation may have to be time consuming. If, as the 1917 Act authorized, the immigration officials directed that the entrant be detained on board the vessel, that detention would of course be at the expense of the carrier. In the Act of March 3, 1891, 26 Stat. 1084, Section 8, it was provided that the immigration officers might —

"order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. But such removal shall not be considered a landing during the pendency of such examination."

The concession to the owners of vessels, avoiding the tying up of the vessel during what might be a considerable period of detention, shifted the immediate costs of the maintenance of detained persons from the carrier to the Government, and said nothing about reimbursement of the Government by the carrier. The Immigration Act of March 3, 1903, 32 Stat. 1213, added:

"§ 16. * * * but such temporary removal shall not be considered a landing, nor shall it relieve the transportation lines * * * from any of the obligations which, in case such aliens remain on board, would, under the provisions of this Act, bind the said transportation lines".

Under this obviously ambiguous Act, the Circuit Court of Appeals for the Second Circuit held in United States v. Holland-American Line, 2 Cir., 212 F. 116, that the United States could not collect from the carrier the detention expenses, even of aliens. This decision was in 1914 affirmed by the Supreme Court without opinion by a 4 to 4 decision.

Then came the Act of 1917, here subject to construction. Its Section 15 which we have quoted, cleared up the ambiguity as to whether the carriers should reimburse the United States for the detention of "aliens" after they had been removed from vessels. It will be remembered that thus far no question had been raised as to any distinction between aliens and persons suspected to be aliens, but who turned out to be citizens, so there was no reason for Congress to advert particularly to that point.

From the enactment of the 1917 Act the immigration authorities, with the acquiescence of the carriers, including that of the plaintiff from the year 1927, imposed the charges of the type here sued for. No serious protest seems to have been made until about 1950. This is strong evidence of the reasonableness of the Government's...