Tran Qui Than v. Regan
| Decision Date | 13 October 1981 |
| Docket Number | No. 79-4299,79-4299 |
| Citation | 658 F.2d 1296 |
| Parties | TRAN QUI THAN, Plaintiff-Appellant, v. Donald T. REGAN, * Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mattaniah Eytan, San Francisco, Cal., argued, for plaintiff-appellant; Kirkwood, Kaplan, Russin & Vecchi, San Francisco, Cal., Leonard Schaitman, Washington, D. C., on brief.
Al J. Daniel, Jr., Dept. of Justice, Washington, D. C., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before ALARCON and NORRIS, Circuit Judges, and CLAIBORNE, ** District Judge.
Appellant Tran Qui Than (Than) appeals from a grant of summary judgment in favor of the Secretary of the Treasury (Secretary). The judgment upheld the Secretary's decision to deny Than's application for a license to unblock certain funds in the United States which had been blocked pursuant to § 5(b) of the Trading with the Enemy Act (hereinafter "TWEA"), 50 U.S.C. App. § 5(b), and the Foreign Assets Control Regulations (Regulations), 31 C.F.R. §§ 500.101 et seq. (1980). This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and remand in part.
The facts are not in dispute. Than is a citizen of the Republic of Vietnam and a resident alien of the United States. Prior to fleeing from Vietnam on April 25, 1975, Than was a shareholder, director, and president 1 of the Dong Phuong Bank, a private corporation established in 1968 under the laws of the Republic of Vietnam.
As of April 30, 1975, the date on which South Vietnam fell to the communist forces, the Bank was owned by twenty shareholders, all of whom were nationals and residents of Vietnam. The Bank's ten directors owned more than 80 percent of the outstanding shares; Than was the principle shareholder, owning a fraction less than 13 percent of the shares outstanding.
The shareholder-directors met on April 15, 1975, to consider the consequences to the Bank which might follow the defeat of the South Vietnamese forces. At this meeting they unanimously adopted a resolution which provided that effective upon the day of the occupation of Saigon by the enemy forces, those members of the management board "who will be able to leave the country will be qualified to manage and to make use of all ... properties that the (Bank) possesses abroad." The resolution further provided that those board members who remained in Vietnam after the communist takeover would be empowered to "manage and to make use of the properties of the Dong Phuong Bank located in (Vietnam)." 2
On May 1, 1975, the Provisional Revolutionary Government of Vietnam ("P.R.G.") issued a communique which directed that banks would be confiscated and thereafter "managed by the revolutionary administration." 3 On this date the Bank was the assignee of monies owed to certain local Vietnamese contractors under several contracts with the United States Army and Navy. 4
After arriving in the United States, Than, on behalf of the Bank, sought payment from the United States Army on the executory contracts in the amount of $221,235. The Army did not dispute the validity or the amount of the claim. It refused to make the payment, however, on the ground that the funds were blocked pursuant to § 5(b) of the Trading with the Enemy Act, 5 and the Foreign Assets Control Regulations, 6 which had been promulgated pursuant to the TWEA. The Army notified Than that he would have to obtain a license from the Secretary of the Treasury to unblock those funds in order to receive the contract payment.
In an attempt to acquire the Navy contract payments, Than signed a release to the original Vietnamese contractor of the Bank's claim as assignee of those payments. The Navy paid $49,965 to that contractor. The contractor paid $29,975.44 to Than, which represented the Bank's share of the proceeds. Than in turn remitted that amount to the other shareholders of the Bank who had fled Vietnam, except for his share, which amounted to $5798. The Navy made no mention of a need either for the contractor or Than to obtain any license from the Secretary in order to receive that payment.
On December 22, 1976, Than applied to the Treasury Department's Office of Foreign Assets Control for a license to unblock the Army funds. The application was denied on February 22, 1977. The Secretary determined that the April 15, 1975, Resolution was ineffective to dissolve the corporation or transfer its assets to the shareholders. He concluded, therefore, that (1) the corporation was a "designated national" within the meaning of § 500.302 of the Regulations because it had an interest in the blocked assets after 12:00 p. m. E.D.T. on April 30, 1975, the date on which Vietnam was added to the schedule of designated foreign countries; and (2) as a "designated national," all transactions involving assets in the United States in which it had an interest were blocked. The Secretary also advised Than that the Navy funds which had already been paid would have to be traced and placed into blocked accounts.
Section 500.305 of the Regulations defines a "designated national" to include individuals and corporations who are "nationals" of a designated foreign country. Under § 500.302 the term "national" includes a citizen of a designated foreign country and a corporation organized under the laws of the designated country "or which on or since ... (the) effective date was or has been controlled by ... directly or indirectly, a (designated) foreign country and/or one or more nationals thereof ..."
Than challenged the Secretary's decision in the instant suit filed on June 23, 1977. 7 Than claimed that the Regulations were inapplicable to his application because there was no designated national having an interest in the funds. He alternatively claimed that if there was a designated national with such an interest the Secretary abused his discretion by failing to issue a license unblocking the funds. Than further alleged that the Secretary's refusal to issue a license was (1) contrary to the Fifth Amendment's prohibition against the taking of property without just compensation; (2) impermissibly discriminated against aliens in violation of the Fourteenth Amendment; and (3) violated his rights under the 1961 Treaty of Amity and Economic Relations between the United States and the Republic of Vietnam. 8
The district court entertained cross-motions for summary judgment and entered judgment for the Secretary. The court upheld the Secretary's decision not to issue an unblocking license, finding that the Bank was a designated national under the Regulations and that the Secretary's determination that the Bank was not dissolved by the April 15 Resolution was not "arbitrary, capricious, an abuse of discretion, or contrary to law." The court further found no constitutionally impermissible taking nor any violation of equal protection and concluded that the Treaty relied upon by Than terminated upon the fall of the Republic of Vietnam and, thus, could not support his claim.
The district court reviewed the action of the Secretary, acting through the office of Foreign Assets Control, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq. Than contends that this was in error. He asserts that the Secretary's decision should have been reviewed under § 9(a) of the TWEA, 50 U.S.C.App. § 9(a). Than's assertion is incorrect.
Section 9(a) of the Act authorizes "(a)ny person not an enemy or ally of enemy 9 claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered or paid to the (United States Government) or seized by (it)" to seek return of the property through an administrative proceeding or through a suit in federal district court.
Judicial review of the Secretary's denial of an unblocking license does not lie under § 9(a) because that section provides a means "through which eligible persons may seek recovery of property seized under the (TWEA). Cornet Stores v. Morton, 632 F.2d 96, 98 (9th Cir. 1980) (emphasis added). Than cites no evidence in the record that the Army payments have been "conveyed, transferred, assigned, delivered or paid" or otherwise seized by the United States government. The blocking of the assets represented by the Army contract payment does not affect the interest, right or title to them which Than may possess. See Nielsen v. Secretary of the Treasury, 424 F.2d 833, 844 (D.C.Cir.1970). The blocking action merely suspends indefinitely the right to transfer those funds.
Than contends that if § 9(a) is not construed to provide the jurisdictional predicate for judicial review of the Secretary's decision, he will be left without a remedy because § 7(c) of the TWEA 10 precludes such review under the Administrative Procedure Act. This contention is without merit. Section 7(c) limits the relief or remedy of any person having any claim to property which has been conveyed, transferred, assigned, delivered or paid to the government to that provided in the TWEA. As discussed above, however, there is no evidence that the assets at issue were ever conveyed to or seized by the federal government. Section 7(c), therefore, is inapplicable to this case and does not preclude judicial review of the Secretary's decision to deny an application for an unblocking license.
Section 10 of the APA, 5 U.S.C. § 701(a), provides that "each authority of the Government of the United States" is subject to judicial review "except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." This section creates a strong presumption of reviewability that can be rebutted only by a clear showing that judicial review would be inappropriate. Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); ...
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