SCHILLING v. ROGERS

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Argument of Henry I. Fillman

Chief Justice Earl Warren: Number 319, Walter Schilling, Petitioner, versus William P. Rogers, Attorney General.

Mr. Fillman, you may proceed.

Mr. Henry I. Fillman: Mr. Chief Justice, may it please the Court.

The question presented for consideration by the Court is whether the District Court for the District of Columbia has jurisdiction to entertain a bill of complaint which seeks to review a determination made by the Alien Property Custodian and the Attorney General as to the ineligibility of the petitioner to be considered for return, a vested property under Section 32 (a) (2) (D) of the Trading with the Enemy Act.

This is not a suit to return or recover vested property.

The complaint merely seeks a review of a preliminary issue under Section 32 (a) (2) (D), namely whether the petitioner comes within that class of persons specified by Congress in the first proviso of that section as eligible to be considered for return in the interest of the United States.

Justice John M. Harlan: Is it discretionary, as you read the statute with the Attorney General, to decide whether he is or isn't within the class?

Mr. Henry I. Fillman: It is not, Your Honor.

I -- reads the first proviso of Section 32 (a) (2) (D) as one which lays down standards or a condition of status, which if occupied by the petitioner, entitles him to a determination of eligibility.

It reads as follows, if I may, “It says that the President --

Justice John M. Harlan: What page is that, sir?

Mr. Henry I. Fillman: 44 of the appendix in my brief, Your Honor please.

Section 32, return of property, provides that the President or such officer or agency as he may designate, in this case, the Director of Alien Property, may return.

It doesn't say may determine eligibility, it is, may return any property or interest vested in or transferred to the Custodian.

Whenever such officer or agency shall determine that the person who has filed a notice of claim and so forth, is not an individual who was at anytime after December 7, 1941, a citizen, a subject of Germany, provided and this is the pertinent -- at the bottom of the page on the top of page 45, “Provided that notwithstanding the provision of this subdivision (D), return may be made to an individual who, as a consequence of any law, decree, or regulation of the nation of which he was then a citizen or subject, discriminating against political, racial, or religious groups, as at no time between December 7, 1941, and the time when such law, decree, or regulation was abrogated, enjoyed full rights of citizenship under the law of such nation."

And then subdivision (5), “And that such return is in the interest of the United States.”

Now, the return may be discretionary, but it -- the Director does not reach consideration for return in the interest of the United States until he has first determined whether the claimant is eligible for return.

And the determination of eligibility, the first stage is not discretionary for if a claimant meets the condition laid down in that first proviso, 32 (a) (2) (D).

If he establishes that he was a person in Germany where at no time during the period specified, enjoyed full rights of German citizenship by reason of a decree, law, rule, or regulation discriminating against a political religious or racial group, he establishes that and that issue must be determined in his favor and he must be deemed eligible to be considered as to whether return to him shall -- is in the interest of the United States.

Justice Felix Frankfurter: Does that mean that courts -- this Court ultimately must de novo determine whether a particular person is a member of a political, racial or religious group?

Mr. Henry I. Fillman: Not --

Justice Felix Frankfurter: Or does that mean that we must merely review whether there's a ground for it, that the Attorney General has so concluding.

Mr. Henry I. Fillman: I --

Justice William O. Douglas: Well, I gather that the Court of Appeals thought it was a none -- not -- not a justiciable controversy.

Mr. Henry I. Fillman: The (Voice Overlap) --

Justice Felix Frankfurter: And that is what you think is on your premise that it is reviewable.

Mr. Henry I. Fillman: I think --

Justice Felix Frankfurter: (Voice Overlap) much of our review that this Court must decide whether a particular person was a member of a political group or that it merely reviews whether there was basis for the Attorney General's so finding, which is it?

They are very different.

Mr. Henry I. Fillman: They are different.

Mr. Justice Frankfurter --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Henry I. Fillman: -- I submit that the this Court, the District Court --

Justice Felix Frankfurter: Yes.

All of them --

Mr. Henry I. Fillman: -- has the power to determine whether the determination by the Director of Alien Property that he was ineligible was a valid determination, whether that determination was made on the standards laid down --

Justice Felix Frankfurter: Standards laid down are political, racial or religious.

And my question is whether when the Attorney General who's the ultimate person who decides and says take this case, if he's not a member of political group -- that -- that whatever that may mean, he doesn't come within that definition.

He's not included in that circle.

Is the District Court, to hear new evidence, review it as he would a -- a litigation that begins with him without any prior administrative finding or is he merely to say, “Yes, this is a disputed question and I think the Attorney General was justified in making such a conclusion.”

Which is it?

They are very different.

Mr. Henry I. Fillman: The District Court -- the District Court looks at the record and if the determination of the Attorney General is based on substantial evidence in the record as a whole, if it supports his determination of ineligibility, that's the end of the matter.

But the District Court has the power to review the record and determine whether the Attorney General exceeded the delegated authority whether he complied with the statute --

Justice Felix Frankfurter: But, specifically in this case, you say everybody wasn't a member of the Nazi party, belonged to a political group, is that right?

Mr. Henry I. Fillman: I don't say that and the complaint does not allege that.

Justice Felix Frankfurter: Well, then every member who wasn't allowed to practice law or wasn't allowed to do this, or wasn't allowed to do that belongs to a political, racial, or a religious group.

Is that right?

Mr. Henry I. Fillman: We don't say that on the face of this complaint, Your Honor please.

Justice Felix Frankfurter: But that's -- that's what the statute says.

Mr. Henry I. Fillman: What we say --

Justice Felix Frankfurter: At least, you must stand as a citizen discriminating against political, racial, or religious groups.

He must be a member of one those three groups, isn't that right?

Mr. Henry I. Fillman: That's right.

Justice Felix Frankfurter: And therefore, the statute does say that, doesn't it?

Mr. Henry I. Fillman: The statute says that but our complaint goes further than that.

We've alleged the facts bringing us within the statutory condition.

Justice Felix Frankfurter: He wasn't allowed to practice law to -- to carry out what he would've been carried out that (Inaudible) eventually become a judge.

The way they do in Germany, a man -- a lawyer says, “I decide to practice my profession as a judge.”

And he was denied that right as a -- because he didn't join the Nazi party.

Now, what I'm asking you, is that a political, racial, or religious group, so that there's a question about it and if the Attorney General decided against it, that's reviewable by the District Court and eventually, by us, is that right?

Mr. Henry I. Fillman: As we allege it, it is reviewable and what we allege, we go further, Mr. Justice Frankfurter.

We say, and this is admitted by the motion to dismiss, at page 5 of the record in the complaint, that he was denied admission to the practice of law.

It was a substantial deprivation of his rights as a German citizen and why?

Because he was a known opponent of Nazism and considered politically unreliable, an anti-Nazi, such as the plaintiff, were recognized and treated as a political group by Nazi authorities and under Nazi laws.

Justice Felix Frankfurter: Do you think that's an allegation of fact, do you?

Mr. Henry I. Fillman: That's an allegation of fact.

Justice Felix Frankfurter: Whether --

Justice Charles E. Whittaker: Mr. Fillman, may I ask you --

Justice Felix Frankfurter: If there are a lot of those and in Germany at that time, weren't there?

Mr. Henry I. Fillman: There were a lot of --

Justice Felix Frankfurter: I can take judicial notice, but there were millions whom you've described by that allegation, because there millions who were not members of the Nazi party.

Mr. Henry I. Fillman: But there weren't millions who were seeking admission to the practice of law, if I may suggest, Mr. Justice Frankfurter.

Justice Felix Frankfurter: All right, then you make a separate rule.

And it's the denial of the practice of law of all those who were denied the practice of law and that's your professorship, did they constitute a political, racial, or religious group.

Mr. Henry I. Fillman: Not all those who were denied practice of the law were considered a religious, political, or racial group, but those who were known opponents of Nazism and who, in order to become members of the bar, refused the invitation to join the party in order to get their license, known as such considered politically unreliable.

They were a smaller minority than the millions of Germans --

Justice Felix Frankfurter: Where they --

Mr. Henry I. Fillman: -- who were not members of the Nazis.

Justice Felix Frankfurter: -- (Voice Overlap) you think that's a political group.

Mr. Henry I. Fillman: I think that's a political group, it's not a party.

They were a group of persons, indeed, the record which is not before this Court adduced the evidence to that effect.

Justice Felix Frankfurter: I -- I can take judicial notice of that.

The --

Justice John M. Harlan: I thought so -- am I wrong, I thought the only question before us was whether or not that Section 7 (c) of the Act precludes any judicial remedy in a case of this sort or that or -- with Section 32 proceeding.

Mr. Henry I. Fillman: That's correct --

Justice John M. Harlan: Isn't that --

Mr. Henry I. Fillman: -- Your Honor.

Justice John M. Harlan: -- isn't that --

Mr. Henry I. Fillman: And that was the basis of the decision in the Court of Appeals and that was the basis for the motion to dismiss that --

Justice John M. Harlan: And I take it --

Mr. Henry I. Fillman: -- Section 7 (c) precludes any (Voice Overlap) --

Justice John M. Harlan: I'm taking your position is that if -- we hold in your favor on that score, what happens?

It goes back to the District Court or goes back to the Court of Appeals for consideration of these questions as to --

Mr. Henry I. Fillman: No.

Justice John M. Harlan: -- scope or review or what?

Mr. Henry I. Fillman: If this Court should hold in the petitioner's favor, the -- there would be a reversal of the Court of Appeals and this Court, as we suggest, would instruct the Court of Appeals to affirm the order of the District Court which had denied the Government's motion to dismiss the complaint on the ground that the District Court has jurisdiction.

It then goes back to the District Court --

Justice John M. Harlan: And then the action is --

Mr. Henry I. Fillman: -- and the District Court, under the Administrative Procedure Act would review the records.

And if there is no substantial evidence in the record to support the determination of the Director of Alien Property, and if the record impels the conclusion that it was arbitrary or capricious determination (Voice Overlap) --

Justice John M. Harlan: Well, aren't you ahead of the game, we don't face here what the scope or review is.

All you're asking is to say there is some kind of review.

Mr. Henry I. Fillman: We say the Court --

Justice John M. Harlan: We aren't saying much.

Mr. Henry I. Fillman: -- well, we ask the Court to say there's jurisdiction to review in the District Court.

Justice John M. Harlan: Yes.

Justice Charles E. Whittaker: But in order to maintain that position as I understand you, you argue that there are two questions, not one

.Namely, one, is -- that is that -- or the eligibility is not one of discretion, that's the first question, you say.

Then you say next after eligibility has been determined whether or not the relief shall be granted is the discretionary matter, is that right?

Mr. Henry I. Fillman: No, no, Mr. Justice Whittaker.

We are not saying in our questions as we presented them, do not place before this Court the question of whether Section 32 eligibility consideration is discretionary.

That is not the question as I see it before this Court.

The question before this Court as we see it and in the posture of the pleading and the motion is this, whether a District Court has jurisdiction to entertain a suit to review a -- the -- a government agency's determination which is admitted by a motion to dismiss to have been made without any substantial evidence to support it in the record before the agency and which was arbitrary and capricious.

Justice Charles E. Whittaker: Is it not --

Mr. Henry I. Fillman: That's one.

Justice Charles E. Whittaker: Is it not true though that regardless of the allegation, it must be taken with the statute.

And if the statute gives a discretion to the Attorney General and it ended at that place, there would be no court jurisdiction.

And is that not why you argue that that's only the foot in the door or -- or the use -- do you argue that there is no discretion in that respect?

Mr. Henry I. Fillman: I argue that if one construes the first proviso of Section 32 (a) (2) (D), namely a determination of eligibility that is not discretionary.

But assuming for the discussion, Mr. Justice Whittaker, that it is discretionary, I submit that the courts always have power to review to see if the action is valid, if there was an abuse of discretion, they can turn it over.

Courts don't always review whether there has been an abuse of discretion.

Discretion doesn't give any agency or official, the arbitrary fiat to determine a question before him willingly only as he sees better.

Justice John M. Harlan: But isn't that all we've got before us, the question of what 7(c) means?

Mr. Henry I. Fillman: That's what I think.

Justice John M. Harlan: Is there anything more than that?

Mr. Henry I. Fillman: Nothing more than that.

Justice Felix Frankfurter: Well --

Justice Charles E. Whittaker: We can't have any averment here that the District abused its discretion.

You don't allege that.

Justice Felix Frankfurter: No.But the Director of Alien Property had abused his -- his --

Justice Charles E. Whittaker: But it's only an abuse of discretion by the District Court that would be reviewable here if 7 (c) is to be given affect according to its terms, which says, “There shall be no review except as provided in the Act”.

Isn't that right?

Mr. Henry I. Fillman: Section 7 (c) says --

Justice Charles E. Whittaker: Yes.

Mr. Henry I. Fillman: -- doesn't quite say that.

It says --

Justice Charles E. Whittaker: Well --

Mr. Henry I. Fillman: "The sole relief and remedy of any person claiming any interest in property shall be that provided for by this Act.”

Justice Charles E. Whittaker: By the terms of this Act.

Mr. Henry I. Fillman: By the terms of this Act.

Justice Charles E. Whittaker: Yes.

Mr. Henry I. Fillman: Now the Administrative Procedure Act, Mr. Justice Whittaker, starts out in Section 10 by saying, "Except so far as statutes preclude judicial review."

And that's at page 46 of my appendix to the brief.

It says "Except so far as statutes preclude judicial review or agency actions by law committed to agency discretion."

So, looking at the language there, the question is not whether a statute precludes judicial review, but the question rather is, to what extent does that statute preclude judicial review?

That's the language except so far as.

Now, Section 7 (c) which says that “The sole relief and remedy of any person having any claim to property shall be that provided for by this Act, could have no relation whatsoever to a claim under Section 32 for these reasons, first, it was enacted in 1918 and had as its purpose, the speedy capture by the Alien Property Custodian of enemy property which he had vested by a vesting order.

It was to prevent litigation and delays in getting that property into his hands.

Now, when the Trading with the Enemy Act was enacted in 1917, the Custodian had the right to seize, but persons who held property here instead of turning over the property which was vested, forced the Custodian to go into court to get it, because they claimed there was no enemy interest in it.

In order to (Inaudible) the delays that followed or resulted, Congress amended Section 7 (c) in 1918.

And they there provided by a speedy seizure of the property pursuant to the vesting order and any non-enemy who claimed there was no enemy interest, could then by the sole relief and remedy provision, go into court under 9 (a) to get his property back.

He had to give it up before suing.

He couldn't as theretofore sue and hold on to it until the Court decided in favor of the Custodian, that, it was back in 1918.

That has nothing to do with a Section 32 proceeding, which came on years later in 1946.

Now, Section 32 was first enacted in March 1946.

It originally provided for a return of vested property to what are called the technical enemies.

They were the residents of Holland, Denmark, the occupied countries, France, whose property was seized for two reasons, to protect them, protect the reasons and secondly, to prevent Germany from having those assets available to be used against the United States.

Now, when the war was over, there was no need to hold on to those assets.

Section 32 was enacted to provide a return to those people.

It provided in subdivision (5) that before a return be made, there would have to be a determination that the return was in the interest of the United States.

Now, that's a broad term, but the purpose of including that provision was contained in the records, Mr. Thorp, who was then the Assistant Secretary of State, informed Congress, I have mentioned it in my brief that the purpose of the interest of the United States provision was to make certain that the property returned to a so-called “technical enemy,” would not be returned to a German for whom that technical enemy was acting as a cloak.

It was to prevent the cloaking situation because some of these people might have been cloaks for the Germans.

And then, the other reason given was, in the congressional hearings, to bar a return to a technical enemy wherein the judgment of the State Department -- for example, insufficient reciprocal protection had been afforded by a foreign country to American citizens having claims against it.

Now, several months later, they further amended Section 32 (a) (2) (D), that was on August 1946, by incorporating therein the first proviso of Section 32 (a) (2) (D), to return to those persons whom Congress said were in fact, the enemies of our enemies, the persecuted groups.

And we filed our claim or the petitioner did on this, the first proviso of Section 32 (a) (2) (D).

Now, Congress clearly said that these people should get their property back, that's the language used.

And we say that if the petitioner comes within the condition of status laid down in that first proviso, he is eligible to be considered for return.

Now, we say the District Court has jurisdiction.

It has jurisdiction under the Administrative Procedure Act.

And apart from the Administrative Procedure Act, it has it under the Declaratory Judgment Act and the general grant of federal question of jurisdiction for the District Courts.

Justice Felix Frankfurter: May I -- may I ask two or three questions (Voice Overlap) --

Mr. Henry I. Fillman: Yes, Your Honor.

Justice Felix Frankfurter: Why we have held the immediate question is 32 (d).

After all, (d) is a part of a single statute and I cannot, for myself, dissociate consideration of your -- of your immediate questions, with paragraph or whatever it is, paragraphs (5), “That such return is in the interest of the United States.”

I, myself, must decide whether if this case goes back and the District Court holds for you and then it would have to go back to the Attorney General and he would have to decide whether the return is in the interest of the United States, if by a singe word, “no,” William P. Rogers, Attorney General, that concludes the litigation because that -- if the answer to that is, yes that his, no, is final and not reviewable, that has a good deal of bearing in my mind regarding the judicial reviewability of (d), because I wouldn't suppose that Congress meant to say that you could go in and have litigation.

To have a contest, way up to the Supreme Court and back and decide, “Yes, he comes within (d),” but the Attorney General by his (Inaudible) can say, “You can't have it, because it's not in the interest of the United States.”

So I don't think one can say, “We're not qualified to decide that now.”

As a matter of construction, I feel I do have to consider whether his word is final and definitive, because if it is, it bears on what (d) does as far as I'm concerned.

Mr. Henry I. Fillman: Well, Your Honor, must -- must you not also consider instead of the word, "no" as to the answer to the question, the word, "yes".

Justice Felix Frankfurter: Certainly, but --

Mr. Henry I. Fillman: He might --

Justice Felix Frankfurter: -- I know that's entirely within his say-so.

Mr. Henry I. Fillman: Not entirely.

It's not only within his say-so, but he must consult as I have been given during the stand from what his former counsel said.

He consults with several of the other agencies as to whether a return is in the interest of the United States.

Justice Felix Frankfurter: Are they bound by what they tell him?

He either has power or he hasn't any power.

The burden of the United States, I assume, can overrule him and he -- he certainly can't sit in judgment on his discretionary power.

If the Attorney General can definitively determine after consulting or not consulting that it's the interest of the United States not to return, then for me, it has a great deal of bearing whether they have judicial review of these.

Mr. Henry I. Fillman: But I think, Your Honor, where that in determining whether it's in the interest of the United States, that determination must likewise be supported by valid evidence.

Justice Felix Frankfurter: He doesn't have to say a thing, if he has a final say.

So, I'm assuming the Attorney General is a conscientious officer.

He is the official leader of the American Bar.

He is the -- he is the President's advisor, but if as a matter of law, his decision is not reviewable by the courts, then it's not reviewable.

Mr. Henry I. Fillman: I say, if Your Honor please, that this petitioner, if he is eligible, if he does meet the standards, if the determination of ineligibility was without substantial evidence, I say that he is entitled to that determination by the Director of Alien Property one way or the other.

He's entitled to get an answer, yes or no, from the Director whether return is in the interest of the United States, if this petitioner meets the standards.

Justice John M. Harlan: I noticed you don't seem to rely at all on Section 32 (e), which seems to me to have some significance, neither you nor the Government discussed it.

The effect of which section as I understand it is that in the case of a person who receives property under 32, the Act specifically recognizes that there may be a suit by somebody against him but only one who is qualified, would have been qualified to receive the property under 32 is one coming within that provision.

It seems to me to have a flavor of justiciability on it.

Mr. Henry I. Fillman: Well, that -- that is a suit by someone who claims against the person to whom the return is being made.

Justice John M. Harlan: Yes, but in order for the -- such a person to bring such a suit, he must show himself to have been one who had -- he applied in the first instance to the Attorney General, would have been qualified under 32 (d).

Mr. Henry I. Fillman: That's correct.

Justice John M. Harlan: Is that right?

Mr. Henry I. Fillman: That's correct.

Justice Felix Frankfurter: You say he's entitled to an answer, if I may go back to my question, he has got an answer.

And the Director said that as he construed (d), he was not as he'd benefited in discriminating against political, racial, or religious groups that the -- that the -- that Walter Schilling or has not -- did not come within the designation of characterization or call it what you will, of a political, racial, or religious group.

Now, it -- it certainly seems to me almost incredible to say that that is not a justifiable -- that that is so irrational, that it came from a mind that was animated by sheer hostility against Schilling.

And you don't say that he was arbitrary or abused his power by having some private score against Schilling or that he had a lawsuit against him before the war broke out.

Mr. Henry I. Fillman: We have --

Justice Felix Frankfurter: Or that he -- that he married his sister and -- who gave him a hard time and he divorced her.

You don't say -- you don't appeal that kind of abuse (Voice Overlap) --

Mr. Henry I. Fillman: We say it was done without substantial evidence on the record.

Justice Felix Frankfurter: But he doesn't have -- you don't have to -- we constantly decide legal questions without evidence --

Mr. Henry I. Fillman: We had less --

Justice Felix Frankfurter: We assert is as a matter of construction of language.

Mr. Henry I. Fillman: Well, the Administrative Procedure Act and --

Justice Felix Frankfurter: But it was not within it because there's a special provision as you, yourself, appealed to.

Trading with the -- the -- Trading with the Enemy Act had its own regime.

Mr. Henry I. Fillman: Oh, I beg to differ, if Your Honor please.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Henry I. Fillman: There is no remedy afforded by the Trading with the Enemy Act to Walter Schilling to review any determination under 32 (a) (2) (D).

Justice Felix Frankfurter: But you -- you draw it out of it.

You say that -- you say by general principles of law, you've just told us a little while ago.

Mr. Henry I. Fillman: By general principles of law, the Administrative Procedure Act and the Declaratory Judgment Act.

We have a right to review any action of the agency, of the Director which is without evidence to support it.

Justice Felix Frankfurter: Subject to the exceptions of the Administrative Procedure Act that it makes several exceptions that from my point of view, bar you.

Mr. Henry I. Fillman: No exception --

Justice Felix Frankfurter: Not by -- not by your general proposition, but by your appeal to that Act.

Mr. Henry I. Fillman: Well, I think, if Your Honor please, that in the Heikkila -- Brown case -- Barber case, in the dissenting opinion which Your Honor wrote, in which Mr. Justice Black joined, you referred at some length to the colloquy that took place between Senator McCarran and the members of the Senate, when he was discussing and explaining the provisions of Section 10.

And I think Your Honor pointed out in that opinion that they were not talking about judicial review in the technical sense, but they were talking about access to a court.

Justice Felix Frankfurter: Lawyers would seem always to get more comfort out of my dissenting opinion than I do myself. [Laughter]

Mr. Henry I. Fillman: In that opinion, Your Honor said that they were not talking about judicial review, in the technical sense, but about access to the court.

Justice Felix Frankfurter: But the court didn't take that line of argument.

What good is it -- except you may have great intellectual satisfaction that you and I see alike.

Mr. Henry I. Fillman: Could the Court -- may change today or tomorrow.

Justice Felix Frankfurter: Alright.

Mr. Henry I. Fillman: It's done that before.

It has come around to a dissenting judge's point of view, and it may come around again.

Justice William O. Douglas: You don't mention that in your briefs the cases under the deportation statutes where questions of eligibility for -- eligibility for the discretion for relief -- discretionary relief of the Attorney General, maybe justiciable one, although his decision not to exercise that discretion was not --

Mr. Henry I. Fillman: But we cite -- we cite the McGrath-Kristensen case where the Attorney General had refused to support -- suspend the petitioner's deportation on the ground of violation of his business status and it was deemed ineligible for citizenship because he had applied for relief from military service.

Justice William O. Douglas: Well --

Not --

Justice William O. Douglas: -- what I'm getting at is that the --

Mr. Henry I. Fillman: The (Inaudible) we cite that.

Justice William O. Douglas: Even though -- even though (D) (5) might -- as Justice Frankfurter suggests that the -- in the -- here in the political realm unreviewable, you might well have a -- I'm not saying that this is your -- it's you're right, but you might well have a justiciable question as to whether or not, the person qualifies for this discretionary relief.

Mr. Henry I. Fillman: We have that judiciable -- justiciable controversy.

The same controversy that was -- you might say in Perkins v. Elg and McGrath v. Kristensen.

In the McGrath v. Kristensen, this Court said that it didn't find necessary to consider the application of Section 10 of the Administrative Procedure Act, but the Court went on to say that when an official's authority to act depends upon the status of the person affected in that case, eligibility for citizenship, that status when in dispute maybe determined by declaratory judgment proceeding after the exhaustion of administrative remedies.

And that was an actual controversy between the alien -- the immigration officials, over the legal right of the alien to be considered for suspension.

And in such a controversy over federal law, the courts had jurisdiction.

Now, we say so here.

The Director's authority to act depends upon the status of the petitioner.

In this case, eligibility for return, that status is in dispute.

It may be determined by a declaratory judgment proceeding after we exhausted this administrative proceeding.

But I'll go further and may I turn from the moment to a case which the respondent cites (Inaudible) case.

In that case, they take the position that this return is a gratuity.

They can do anything they want with it, like to recall it.

Well, it's granted, but a -- a return of vested property is a gratuity.

It's been so held and that Congress may withdraw it.

Congress has not withdrawn it here.

In that case, which came up under the Dent Act, an act to provide for payment of compensation of those who would furnish supplies and services during World War I and didn't have any contract for repayment.

The Dent Act had two provisions.

A determination of the Secretary of the War was to be final and conclusive.

And then it has at page 180, 267 U.S., it has this paragraph quote, “That nothing in this Section shall be construed to confer jurisdiction upon any court to entertain a suit against the United States.”

That was in the Dent Act.

The court that -- in holding for the Secretary of War, who were denied an award of some $9000, went on to point out that -- that cases which the claimant had cited were cases in which it was held that no court could reverse or control the Secretary by mandamus in the absence of anything to show the determination was capricious or arbitrary.

And then went on to say, “There is nothing in the award by the Secretary in the case at bar, which would justify characterizing it as arbitrary or capricious or fraudulent or the abuse of discretion.”

Now, there is just one more thing --

Chief Justice Earl Warren: Well, you have to be very brief, because you're five minutes overtime now, Mr. --

Mr. Henry I. Fillman: I'm sorry.

I thank you, Mr. Chief Justice.

When Congress wishes to withhold suit or bar a suit, it does so, specifically as it did in the Veterans Administration Act, the House cited it.

It's 38 U.S.C. 211 (a), where Congress specifically sends that the determination or the benefits of payments under the VA by the administrator shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.

And they also did it in, Public Law 285 in the 85th Congress, in the Foreign Claims Settlement Act.

We don't have that here in the Trading with the Enemy Act.

Chief Justice Earl Warren: Mr. Kramer.

Argument of Robert Kramer

Mr. Robert Kramer: May it please the Court.

It is the position of the Government which the Government has maintained consistently ever since 1944 when the predecessor of the bill which eventually became Section 32 when the Trading with the Enemy Act was first introduced with Congress.

The Government has maintained its position ever since then that there is no judicial review of determinations made under Section 32, that the District Court, as the Court of Appeals or this Committee have found here and as that court had found in four previous cases involving the same issue.

The District Court had no jurisdiction.

We think this is true, first, because a fair reading of the language of the Trading with the Enemy Act demonstrates that there was to be no judicial review under Section 32.

We think it is true, second, because a fair interpretation in the legislative history of Section 32 also demonstrates, there is to be no judicial review.

In the third place we think it's true because a fair interpretation of the whole pattern of the way that Congress has dealt with seizures of property of enemy aliens or to the Trading with the Enemy Act supports this conclusion.

And finally, we think it is true because there were very strong reasons of policy which undoubtedly influenced Congress here in not providing for review, in believing there should be no review and those reasons of policy we think are -- are persuasive.

Chief Justice Earl Warren: Well, may I ask what particular language in the statute you refer to, to substantiate that position?

Mr. Robert Kramer: Well, the first that I would in particular refer to, the language of Section 32 itself, the language contained in Section 9 (a) --

Chief Justice Earl Warren: Well, let's take 32, what does that say?

Mr. Robert Kramer: Well, as has already been pointed out here, the two notable things about Section 32.

First, it is completely certain as far as judicial review is concerned, it makes no provision for it whatsoever.

Chief Justice Earl Warren: (Voice Overlap) -- that's included.

Justice John M. Harlan: (Voice Overlap)

Mr. Robert Kramer: We believe it does when you consider it with the legislative history of Section 32 and when you read it together with the rest of the Trading with the Enemy Act.

Chief Justice Earl Warren: Now, let's have the other -- the rest of the statute that you rely on.

Mr. Robert Kramer: We also believe that the language of Section 32 has been brought out previously in this argument confers extremely wide discretion.

Chief Justice Earl Warren: But now, what language?

I just want -- I want --

Mr. Robert Kramer: Yes, exactly.

Chief Justice Earl Warren: Yes.

Mr. Robert Kramer: Well, let's start off here.

At the very first start it says, "The President may return."

Now the word "may" there was not used merely accidentally.

As a matter of fact, in the original hearings before the House Committee, when this was first introduced, at least two witnesses, Mr. Carter (ph) and Mr. Charles Carroll (ph) very strongly objected to the use of that word ,"may" and suggested that instead, it should be changed to "shall return" in there in order to eliminate that discretion.

Congress did not so change it.

The Alien Property Custodian wrote a letter to the House Committee in which he opposed the change from "may" to "shall".

Justice John M. Harlan: When it comes to the determination of what your opponent calls status, the statute says, “shall return” and not, “may return”.

Mr. Robert Kramer: It simply said, “He shall determine the status.”

But it says --

Justice John M. Harlan: Yes, but that's what we're talking about here.

Mr. Robert Kramer: Well, it simply requires him to make the determination.

He has begged the determination here.

There's no question of the Alien Property Custodian for choosing to make the determination.

That, I take it is what petitioner complains about.

When it says "he shall determine," it simply means he shall determine whether or not this particular person is eligible just as it says here down in Section 5.

It says, "The President shall determine that such return is in the public interest."

Well, I take it, no one would argue that that removes the discretion within Section 5 because it begins there, “The President shall determine that such return.”

It simply means that if the Alien Property Custodian I -- I -- arbitrarily says, "I won't make any determination at all here."

I just moved after your petition.”

Justice Felix Frankfurter: You could mandamus anything you say.

You could mandamus and I suppose.

Mr. Robert Kramer: I suppose that at least that could be argued.

Justice William O. Douglas: You don't seem to treat it in your briefs the kind of problem that we had in the -- in the Accardi case -- the -- versus Shaughnessy, the justiciable questions to whether or not A or B or C was in the category of people who are eligible through the exercise by the Attorney General of his discretion for suspension.

Well, and the Court --

Mr. Robert Kramer: And we recognize that --

Justice William O. Douglas: -- the Court made quite clear that while the -- it's up to the Attorney General and not to the courts to determine who -- whether the discretion to suspend should be exercised.

Nevertheless, whether a man qualified to get into the group to apply it for suspension was justiciable.

Mr. Robert Kramer: Well, we --

Justice William O. Douglas: But that -- that -- that seems though on the surface to be fairly close to this situation.

Mr. Robert Kramer: Well, we mentioned that in the last paragraph at the bottom of page 27 of our brief be treated -- I grant you very briefly.

However, I think we also go on to discuss in our brief on pages 29, 30 and 31, the other cases referred to by counsel here, the Elg case and the Kristensen case.

All those cases we think, involved in the first place a different statute.

And this Court has repeatedly pointed out the determining questions of judicial review, one must look to the specific language and the specific background of the statute involved, and that's what we are attempting to do here.

That's what we're attempting to do here.

Furthermore, both the Perkins case and the Kristensen case involve the question of citizenship which this Court pointed out in those opinions raised grave constitutional issue.

In this particular case, at no time has any constitutional issue have been raised by petitioner, either here or in the court below.

Furthermore, in both the Perkins case and the Kristensen case, the -- this Court pointed out that the real issue was not there whether there should be any judicial review because in both those cases, there was a threat of deportation.

And if and when the petitioner in those cases was taken into custody for deportation, the Constitution would have required judicial review by habeas corpus.

The issue in those cases really was whether -- was the time of obtaining judicial review and the method whether by declaratory judgment or habeas corpus.

Chief Justice Earl Warren: Well, Mr. -- Mr. Kramer, granting that this -- that the discretion of -- of the President is as broad as you -- as you've interpreted it here, isn't the question as to whether the man falls into one of these groups, a -- a legal question, a justiciable question, or is that also a matter of discretion on the part of the Director?

Mr. Robert Kramer: Mr. Chief Justice, I'm not quite sure what you mean by “legal,” or “justiciable”.

If you mean, “might a court decide it?”

The answer obviously is, yes.

If you mean, “Has Congress intended for the court to decide it?”

It is the Government's position that Congress did not so intend.

Chief Justice Earl Warren: You -- you mean that -- that Congress intended that the Director should determine there's a legal question whether the group this man is in was within the statute or not.

And that from --

Mr. Robert Kramer: That is correct.

Chief Justice Earl Warren: -- from his decision, there is no review.

Mr. Robert Kramer: That is correct.

That is the position the Government has taken consistently from 1944, when this --

Chief Justice Earl Warren: Yes.

Mr. Robert Kramer: -- the original bill or Section 32 was introduced in Congress.

Chief Justice Earl Warren: Not the question as to whether the man belong to the group, but as to the question as to whether the group itself came within the statute.

Mr. Robert Kramer: Well, as far as -- as I know, this -- the distinction that -- that you are -- are growing, so to speak, and that the counsel of petitioner has drawn this two or three-step status had -- was never suggested to Congress.

It is actually -- that is not the way that we pointed in our brief that the Alien Property Director has often decided cases.

He has sometimes refused to make a return because he found that the petitioner did not actually ever own the property, without ever considering whether the petitioner was or was not a -- a national discriminated against a member of a group.

He has -- sometimes made -- without making that determination, he has simply followed a certification from a foreign government.

And I think incidentally, that -- I see it's time for --

Chief Justice Earl Warren: All right.

We'll recess now.

Print this transcript Transcript: 

Argument of Robert Kramer

Mr. Robert Kramer: -- section 32 of the Trading with the Enemy Act is silent about the question of judicial review and makes no provision for it and in addition, it contains language giving extremely wide discretionary powers and authority dealing with the return of property.

The Government, however, wants to make it clear that it does not rest its case, dealing with the proposition that there is no judicial review here, on the language of Section 32, which is simply silent on the matter of judicial review.

Section 32 is simply one of some 40 odd sections of the Trading with the Enemy Act.

It must be considered with the other sections of the Act.

Turning to other sections of the Act, we find at least two such sections which on their face would seem in sweeping language to bar judicial review under Section 32.

The first of those sections is the one mentioned by petitioner's counsel yesterday Section 7 (c) found in petitioner's brief at page 41.

Justice Hugo L. Black: That's the one the Court relied on, isn't it?

Mr. Robert Kramer: Yes, that is the one that the Court of Appeals relied on in this case and in the four other cases --

Justice Hugo L. Black: Well I mean in the motion for dismissal.

Mr. Robert Kramer: Yes sir and the Court of Appeals relied on it in the four other cases where it similarly had to.

The same question has been before the Court of Appeals of this from the five times including this case and that each case in that Court has reached the same result relying as you say on Section 7 (c).

Justice Felix Frankfurter: Did it argue the matter at length in any of the prior cases?

Mr. Robert Kramer: I think in the first case, McGrath against Zenith --

Justice Felix Frankfurter: Zenith --

Mr. Robert Kramer: -- that is the leading opinion and the one which is simply to a large extent been followed since then.

In this case the opinion was simply a per curiam.

Justice Potter Stewart: Has the question arisen in any other Court of Appeals?

Mr. Robert Kramer: No other Court of Appeals, no.

As far as I know, the issue was only in the Court of Appeals for the District of Columbia.

The language of section --

Justice Hugo L. Black: Is it likely to arrive elsewhere, isn't it?

Mr. Robert Kramer: No, that is right.

The question -- the language of Section 7 (c) is very broad.

It reads in part the sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered or paid over to the Custodian shall be that provided by the terms of this Act.

Unknown Speaker: (Inaudible)

Mr. Robert Kramer: I should think not ordinarily because the Attorney General or the Alien Property Custodian before would be ordinarily be the defendant and therefore the action ordinarily I should think wouldn't be brought here in the District of Columbia.

Unknown Speaker: Well – (Inaudible)

Mr. Robert Kramer: That is correct, yes.

Now in addition to that, there is a significant section which is found in our brief on page 33, Section 9 (f) of the Trading with the Enemy Act.

Section 9 (f) in part reads as follows “Except as herein provided the money or other property conveyed, transferred, assigned, delivered, paid to the Custodian shall not be subject to any order or decree of any court.

Now I think Section 9 (f) is particularly significant because Section 9 is the key section of the Trading with the Enemy Act insofar as a judicial review is concerned.

Section 9 (a) --

Justice Charles E. Whittaker: Only with respect to 9 (a)?

Mr. Robert Kramer: Not -- well not -- today that is true.

That is today Section 9 (a) allows judicial review in the case of either citizens or non-enemy aliens.

However, I'd like to point out that after World War I, Congress also enacted Sections 9 (b) and 9 (c) which allowed judicial review for enemy aliens.

Now contrast to what Congress did after World War I when it specifically allowed judicial review in 9 (b) and 9 (c) with what Congress did after World War II when they enacted Section 32 and said nothing at all about judicial review.

Justice Felix Frankfurter: Am I right in thinking that the Second World War legislation dealing with enemy aliens mitigated some of the provisions not existing but mitigated some of the provisions of the -- of the Alien Enemy Act of the (Inaudible)

Mr. Robert Kramer: That is right.

As the legislative -- to go into the legislative history, the legislative history indicates that the pattern that was envisaged for relief after World War II, so to speak, was a two-fold one.

First, under Section 9 (a), there was to be judicial review and so to speak a mandatory return for all non-enemy aliens.

Section 9 (a) gave an absolute right of judicial review for them, but then as the -- as the Alien Property Custodian pointed out to the congressional committee, Section 32 was to provide, so to speak, another remedy.

It was a remedy that might be utilized, if they so wish, by even by not enemy alien but it could also be utilized by enemy aliens, but because it could be utilized by enemy aliens, it was envisaged as one that was purely administrative.

It gave wide discretion to the administrator and there was to be no judicial review under it.

Now it's significant that Congress considered Section 32 for almost two years from 1944 to 1946.

This was not something that was rushed through Congress under great war of pressure.

Congress took plenty of time.

Furthermore, the original of Section 32 (a) was legislation drafted by the Alien Property Custodian and the Attorney General.

They sent a joint letter which is found in our brief on pages 12 and 13 in which they state that the purpose of Section 32 (a) was to provide administrative remedy with wide discretion and that there was not to be any judicial review under Section 32 (a).

This was not only their understanding, it was the understanding of witnesses who appeared before the congressional committee and who criticized, they then draft the 32 (a).

For instance the testimony of Mr. Carroll which is found in our brief on pages 13 and 14.

In other words it was the general consensus of opinion that there was not to be a judicial review under 32 (a).

Judicial review was to be under Section 9, not under 32, not under 32 (a).

Justice Felix Frankfurter: Are you saying that a treaty for instance, the treaty claimed requested property as requested under a vesting order was going to Court that he also could go and appeal to the administrator on reviewable action of the Attorney General.

Mr. Robert Kramer: That is correct.

Justice Felix Frankfurter: That a German or if an enemy alien only relief was under the (Inaudible)

Mr. Robert Kramer: That is correct.

Justice Hugo L. Black: Suppose there had been a question here as to citizenship of the person, did the Attorney General had tried that?

Mr. Robert Kramer: Well in --

Justice Hugo L. Black: -- in written review.

Mr. Robert Kramer: I think if it's a question of citizenship there would have been alternate forms of relief.

If --

Justice Hugo L. Black: If what?

Mr. Robert Kramer: There would have been alternate forms.

If the petitioner had wished, he could have asked for administrative determination under Section 32, but if he did not wish to do that, he could have gone into Court under Section 9 (a) and claimed that he was an American Citizen and that issue wouldn't be subject to judicial review under Section 9 (a).

Justice Hugo L. Black: Suppose Section 9 (a) didn't provide it and he was a citizen, will it be left to the Attorney General to decide it without --

Mr. Robert Kramer: Well it seemed to me that --

Justice Hugo L. Black: -- testifying it without the review --

Mr. Robert Kramer: -- under the decisions of this Court I believe.

You could -- construing the Trading with the Enemy Act.

This Court has intimated that if it were not for the judicial remedy given by Section 9 (a) constitutional issues would be raised in the type of case you put.

Justice Hugo L. Black: What constitutional provisions would likely affect in your judgment?

Mr. Robert Kramer: Well I should think one constitutional provision would be that it would be taking property without due compensation if this was the property of an American citizen.

Justice Hugo L. Black: What about the Due Process Clause?

Did that Section presented?

Mr. Robert Kramer: That might well be that to -- the taking would be a violation of due process, if it were of an American citizen though.

Justice Hugo L. Black: Yes, I suppose the difference is if an alien enemy is not entitled to this due process that's under the Due Process Clause or the just compensation clause.

Mr. Robert Kramer: And that has been the indication in the decisions of this Court.

And I might add that the petitioner has not raised any constitutional issue anytime in this case.

Justice Felix Frankfurter: I suppose the old case would allow him to assure his American citizenship under the doctrine of refuge.

Mr. Robert Kramer: Very likely, yes.

That is quite true.

Now there's also significance that Section 32 (a) when it was enacted by Congress was part of Public Law 322 and that law contained other amendments to the Trading with the Enemy Act.

One of those amendments related to Section 22 which deals with consulting and that amendment enacted at the same time Section 32 (a), that amendment is Section 20 expressly provided for judicial review under Section 20.

In other words that's a pretty clear indication that whenever Congress has wanted a judicial review under the Trading with the Enemy Act they had said so.

And the reason they had said so is because undoubtedly they realized that they didn't say so.

Then the provisions of 7 (c) and 9 (f) would operate to bar a review.

Now you find the same pattern again when a few months later in August, 1946, Congress amended Section 32 (a) and enacted the proviso herein question dealing with discrimination against groups for political reasons.

First of all you discover as we point out in our brief on pages 16 and 17 that the Alien Property Custodian wrote a letter to determine in the House Judiciary Committee which the Chairman read with his approval to the House in which the Alien Property Custodian pointed out that he wanted to make it clear that certain amendments and changes that the Senate had made in Section 33 which deal with the statute of limitations that none of those amendments and changes in his judgment operated to give any judicial review under Section 32 (a).

The amendments as a matter of fact of Section 32 (a) said again did not deal with judicial review.

Furthermore, these August amendments again were part of Public Law Number 671.

Public Law 671 made other changes to the Trading with the Enemy Act.

One of those changes was that it added Section 34 to the Act.

Now Section 34 deals with the so-called death claim, that is the claims of American citizens against the properties that have been -- have been seized by the Alien Property Custodian and again it is significant that Section 34, as added here in 1946 of August, specifically provides for judicial review.

The matter's not left up in the air.

In other words, every time Congress has wanted judicial review under the Trading with the Enemy Act it has said so expressly.

It said so in Section 9, it said so in Section 20, it said so Section 34 as we point out in our brief.

Since 1946 on at least two occasions bills have been introduced in Congress to amend Section 32 (a) to provide expressly for judicial review, none of those bills have ever been enacted.

Now turning to for a moment from the legislative history and from the wording of the Trading with the Enemy Act, it also seems to the Government that there were very sound policy reasons that undoubtedly influenced Congress here not to desire to have judicial review.

Congress probably realized that they were not dealing here with a statute which would involve the liberty of any person.

There was no question here of imprisonment, no question here of deportation, no question here of putting anyone in the armed forces against his will of drafting anybody for service.

There's no question here as I made plain of citizenship.

There is no question here of any administrative body blackening anybody's reputation.

There is no question here of depriving anyone of the right to vote or the right of free speech.

Congress undoubtedly viewed this proposition simply as an act of grace.

Justice John M. Harlan: Do you think that 32 (e) has got any significance?

Mr. Robert Kramer: I really do not, Mr. Justice since so, as I read Section 32 (a), my interpret -- 32 (e) excuse me.

My interpretation is 32 (e) deals with the claims of Americans or other creditors against the seized properties.

Justice John M. Harlan: But it -- it provides that -- as an instance to that kind of a claim --

Mr. Robert Kramer: Yes.

Justice John M. Harlan: -- the issue is to whether this man is within 32 (d) --

Mr. Robert Kramer: Yes.

Justice John M. Harlan: -- is a justiciable, litigable issue.

Mr. Robert Kramer: Well, but it provides that it --

Justice John M. Harlan: In that context I quite agree it's not this, it's not your case, does it?

Mr. Robert Kramer: Well first --

Justice John M. Harlan: It shows that Congress had some -- it has this much relevancy that the possible -- that issue of status is not wholly excluded because it's -- it's specifically provided for as litigable in that context.

Mr. Robert Kramer: However, it seems to me that not only is it dealing with the different issue, but there it is dealing with the question of judicial suit not judicial review, but judicial suit after return has been made to the property.

Justice John M. Harlan: Quite right but it did not say that the man's status as determined by the Attorney General was to govern the suit, it made it an independent, litigable issue.

Mr. Robert Kramer: Well that is quite true.

Justice John M. Harlan: That's true.

Mr. Robert Kramer: Yes.

Justice Felix Frankfurter: You're not denying, are you -- you're not denying, are you, that the subject matter of this controversy namely whether this petitioner was a member of the group characterized by 32 is something that the Court could decide?

Mr. Robert Kramer: Of course yes.

Justice Felix Frankfurter: In that sense, it's a justiciable thing but some other things are not justiciable may not fit for judicial decisions.

Mr. Robert Kramer: Oh no, this is perfectly fit.

Justice Felix Frankfurter: What you're saying is that it was withheld.

Mr. Robert Kramer: That is right.

Congress consciously and deliberately withheld it and as I started to say I think there are -- are some reasons why Congress did if you stop and think about it, take the factual situation in this case.

The petitioner admittedly is a German national.

During the entire period of the war, he was in Germany.

Now in order to classify these claims, one must ascertain facts that occurred in Germany.

One must deal with questions of German law of what the Nazi Government did or did not do.

All those questions may be particularly difficult of judicial proof accurately in a court of law.

Justice John M. Harlan: But your position would go to the extent of saying that if we had a record where the Alien Property Custodian said I am not going to concern myself at all.

I'm not interested in whether you come within the scope of this section, you say that there was no judicial review in that case?

Mr. Robert Kramer: Well I think --

Justice John M. Harlan: Wouldn't you?

Mr. Robert Kramer: It has been the Govern -- certainly it's the Government's position --

Justice John M. Harlan: That's the consequence to your position.

Mr. Robert Kramer: Yes you were pushing that undoubtedly, Mr. Justice to the most extreme form.

Justice Felix Frankfurter: But is it -- is it?

Justice John M. Harlan: Well that's where you have to --

Mr. Robert Kramer: Not necessarily it seems to me because, one, can I suppose to distinguish between a case A where the Alien Property Custodian simply said, “I won't decide this case.”

Justice John M. Harlan: I'm not suggesting at all that there's any margin to review once the -- that the -- once the Alien Property Custodian directs his attention, directs his mind to the question whether this is a -- this is a man subject to Section 32 (d).

I'm not raising that question.

All I'm saying is that --

Mr. Robert Kramer: And he did here.

Justice John M. Harlan: -- we haven't got that before us as I understand it.

Mr. Robert Kramer: Well in this -- no.

In this case, he did direct his mind to it and as you will -- if you -- this Court will read the decisions both of the trial examiner and the Custodian which are reprinted in the appendix to our brief and also in the appendix to the petitioner's petition for certiorari.

Justice Felix Frankfurter: Well are you suggesting or is the Government taking the position that if the Director says suppose the decision goes for the Government that this is the law and if we could not have affirmed that there is no judicial review on the record of this case, is it your position, speaking for the Government that next week the Director can say the Supreme Court said that 32 (d) is not reviewable -- the determinations under that are not judicially reviewable, therefore I don't care what the new -- Mr. X said.

I don't take whether he is or isn't within the category of the statute, this is not reviewable.

I decide against it.

Are you saying that the decision is saying there's no judicial review in this case would cover that case?

Mr. Robert Kramer: I don't think so.

I don't think it's necessary to go --

Justice Felix Frankfurter: But it is necessary, that's the case of refusing to discharge his discretionary duties.

Mr. Robert Kramer: That is correct.

Justice Felix Frankfurter: And there are plenty of cases usually the covered cases particularly or non-reviewable action by the Interstate Commerce Commission doesn't allow it to refuse to exercise discretion and it can be mandamus and an official may have a non-reviewable exercise the power of discretion but he hasn't that a non-reviewable refusal to exercise the power of discretion which is a very different thing.

Chief Justice Earl Warren: Well suppose the -- to go -- we'll just take it one step further and say that the -- that the facts -- the stipulated facts in the case would clearly show that the man was within that group and the -- the administrators or examiners said, “Well I'm going to deny him anyway.”

Well couldn't -- couldn't the Court reach that?

Mr. Robert Kramer: Well Mr. Chief Justice, I suppose one can -- can easily put extreme cases.

I think one can put even a more extreme case.

Suppose the allegation was that the Alien Property Custodian has been bribed or --

Chief Justice Earl Warren: No, I'm not dealing with that.

Mr. Robert Kramer: -- there was fraud.

Chief Justice Earl Warren: I'm just dealing with -- with a situation where the agreed statement of facts that -- that you have in the case would show clearly that this man was in -- in one of the -- the groups that would offer one -- entitle to some -- some relief.

Mr. Robert Kramer: I think it is the Government -- Government's position --

Chief Justice Earl Warren: The Director says -- the Director said, “Well now I -- I just decided he's not entitled to relief.

That's -- that's all there is to it.”

Now are the courts foreclosed from going into that question?

Mr. Robert Kramer: Well of course that is not our case but to take up your hypothetical case, I think that it is a fair interpretation of the statute here whether or not this Court will ultimately agree in the extreme you case put.

It's fair interpretation of this statute.

That Congress here considered this matter and they meant generally speaking for the decision of the Director to be final.

Now they recognize the fact that anyone to whom you give the power to make a final decision, the judge here, or the Attorney General or even the President can make a mistake.

Justice Felix Frankfurter: But the Chief Justice's case isn't a mistake.

It's a willful refusal to apply the statute wherein the Director as I understand the Chief Justice's hypothetical case, the Director says, “Yes this man is within the statute but I willfully refuse to apply the statute.”

Mr. Robert Kramer: Well I think in such a case of willful -- actual willful bad faith that there -- there might well be judicial review.

Justice Felix Frankfurter: Well bad faith, he may think he may have a private policy that none of us could be (Inaudible)

Mr. Robert Kramer: That is correct.

Justice Felix Frankfurter: Is he entitled to exercise that in that -- is that exercise of discretion?

To me that is an extreme case.

It's a different case.

Chief Justice Earl Warren: Well that's a little -- it goes a little far because I'm not saying I -- I and -- did intend he would -- he would say I willfully disobey the law.

I willfully refuse to violate the law.

He merely says on these facts which we -- we say in the hypothetical case are clearly placed this man within a -- within one of those groups.

On these facts, I determine that he is not entitled to relief.

Not eligible for relief.

I just like to know what the position of the Government is as to a situation of that kind.

Does the man have judicial review or does he not?

Mr. Robert Kramer: I would say there -- that's it's simply a question of mistake no matter, so to speak, how bad a mistake it is nevertheless if he -- if he's acted in good faith and exercises discretion that there is no judicial review.

Justice Charles E. Whittaker: Well the question would be did or not exercise good faith, is your argument valid would it not mean that this relief would be only when Congress or to induce the discharge of that person and get someone of the more liberal discretion.

Mr. Robert Kramer: That is correct.

I -- I presume that if the Alien Property Custodian acted in any of these horrible ways we're talking about that either the Attorney General or the President after all to whom the power is directly delegated would be first person to correct.

Justice Charles E. Whittaker: I would assume and is this right or wrong that there is no doubt of Congress' power to deny judicial review in such case.

Mr. Robert Kramer: That is the Government's position, yes.

Justice Charles E. Whittaker: And if they have done so, then the fact that the mistrust may have been arbitrarily exercised even by the administrator wouldn't grant judicial review, would he?

Mr. Robert Kramer: That is correct.

As I -- as I said it seems -- it seems to the Government that you have a -- an unusual area here an area where you are dealing in -- in a sense in the field of foreign relations in foreign affairs.

As we -- we point out -- out in our brief again, actually the Alien Property Custodian of the Government have found that it desirable to handle many of these claims under Section 32 (a) simply by direct agreement with a foreign government, France or Italy, rather than go -- going through the ordinary process of a hearing.

This -- this area comes very close to the area of foreign relation and treaty questions.

In fact the -- the scheme, the general scheme in having on the Trading with the Enemy Act is shown by Section 39 of the Act which is in the appendix to our brief is that Congress has said that in general enemy aliens are to look to their own government for relief for this type of seizure.

Justice John M. Harlan: Supposing one was to come to the conclusion that the statute is arguable either way you just can't tell, where does that leave Section 10 of the Administrative Procedure Act?

Mr. Robert Kramer: Well you say that the statute -- maybe either way you mean that on the merits or the question of judicial review?

Justice John M. Harlan: No on the question of reviewability.

Mr. Robert Kramer: Well on the question of reviewability, it seems to me that the case does not fall under --

Justice John M. Harlan: You both got fair arguments in both ways otherwise you wouldn't be here and I'm just wondering if the Court should come to conclusion that you just can't tell.

But here is Section 10 of the Administrative Procedure Act that says unless the statute does exclude it there is to be a review except from the ground of agency discretion.

Mr. Robert Kramer: Well the --

Justice John M. Harlan: Where -- where does that leave one?

Mr. Robert Kramer: Well it seems to me the answer is two-fold that (A) the statute does preclude review under Section 7 (c) and 9 (f) and therefore --

Justice John M. Harlan: Yes but the --

Mr. Robert Kramer: -- and (B) --

Justice John M. Harlan: I'm assuming --

Mr. Robert Kramer: Well (B) --

Justice John M. Harlan: I want you to assume my premises for the moment.

Mr. Robert Kramer: Well I don't know if he wants or want to assume the second premise.

The second exception in the APA is where the thing is committed to agency discretion.

Justice John M. Harlan: And --

Mr. Robert Kramer: And it seems to the -- the Government's position that under the old scheme of the Trading with the Enemy Act it was meant to commit this matter under Section 32 to agency discretion.

Justice John M. Harlan: And you can't carve it down under the two-step process of status and the merit as well.

Mr. Robert Kramer: We certainly you do not believe that that is what Congress intended.

There's nothing at all in the legislative history to reflect that.

And certainly that has never been the construction of the statute by the Alien Property Custodian from 1946 until the present date.

Justice William J. Brennan: Well what's the significance?

You go ahead.

I am just kept wondering what's the significance then of “shall” rather than “may” at this place.

Mr. Robert Kramer: Well the only “shall” is -- is involved is that “he shall make a determination.”

That brings up the point I suppose that we have just discussed.

If the Alien Property Custodian simply said, “I won't even decide this case.

I won't even pass upon it.

I will give you a decision.

You filed your claim well the claim could not gather dust in my file box.”

Well then the Act says he shall determine but when it comes to the question of what his determination shall be, there the Act simply says, “He may return.

He may return,” it's discretionary and he gives them very broad discretions.

It says he may return it and then it lists several conditions, one of which is if he finds that the return is in the interest of the United States --

Justice Felix Frankfurter: But if it says he shall determine --

Mr. Robert Kramer: Yes.

Justice Felix Frankfurter: -- that presupposes that he shall determine in accordance with the Act, I'm coming back to the right question --

Mr. Robert Kramer: Yes.

Justice Felix Frankfurter: -- he can find that a person within the category to which a return must be made, but he refuses to do it he's not determining then in any fair sense of the term determine.

Chief Justice Earl Warren: Do you agree with that?

Mr. Robert Kramer: No, I think that is going too far.

Chief Justice Earl Warren: But you -- you've nodded your head as though you agreed.

I just wonder if you do.

Mr. Robert Kramer: No it seems to me that -- that is going too far because I think --

Justice Felix Frankfurter: You mean to say if -- if a position is made before the Director --

Mr. Robert Kramer: Yes.

Justice Felix Frankfurter: -- and it is concededly take -- take your own position, that means this is the occupied territory, this is -- this is Belgium or Holland during occupation and he sets forth all the facts and he says clearly being for all of your political group outlawed by German laws, nevertheless I decide against it.

I'm not -- not talking about the Attorney General, that's something else here, nevertheless he decides against him, so you think that's complying what he shall determine?

Do you think that's a determination in any fair reading of a statute charging an official with determining something and the criteria you've given and he says the criteria is satisfied but I nevertheless reject it.

Do you think that's determining?

Mr. Robert Kramer: No, I should say that naturally because I would get back to case.

It seems to me that's a clear case of bad faith.

Justice Felix Frankfurter: Well, I don't want to use the word bad for it because that carries other connotations.

He may have better reach.

To me he isn't discharging his duty, concededly not and he may be the most high-handed man in the world, but have the wrong policy with that.

Justice Hugo L. Black: What is the standard under which he has to determine?

Mr. Robert Kramer: The standards, I suppose, are the conditions laid down in Section 32 of the Act.

32 (a) lays down a series of conditions, 32 (a) (1) --

Justice Hugo L. Black: Whether he says, you'll find that in these categories.

Mr. Robert Kramer: Yes.

Justice Hugo L. Black: What is the standard under which it depends on that and the Custodian decides whether he should nevertheless reached for the return of the property (Inaudible)

Mr. Robert Kramer: Well assuming that he is in the category then he must meet the other conditions such as 32 (a) (1) says he must have filed his notice of complaint.

Justice Hugo L. Black: Suppose he files it --

Mr. Robert Kramer: And then --

Justice Hugo L. Black: -- we're down to the merits now, what's the standard on which the merits are determined?

Mr. Robert Kramer: Well --

Justice Hugo L. Black: That has to be returned for it.

Mr. Robert Kramer: The main standard as I judge is in 32 (a) (5), namely that the return as in the interest of the United States.

Justice Hugo L. Black: That's the sole one.

It means that I've seen the major (Inaudible)

Mr. Robert Kramer: No.

That is, I think, the sole one if you decide the other that he meets the other half of the categories.

Justice Felix Frankfurter: Well then you're right.

That is what I think of standard discriminated against that he must be a member of -- that he was a citizen of subject to discriminating against political, racial, religious groups, he must come within those -- one of those three groups and nothing is more difficult for admiring the technology that goes with the German situation and to determine that fact.

That's another reason why it should be left to the administrator and not to the courts because it's very difficult to ascertain whether you do or do not come within one of these outlawed groups.

That's not an easy thing to determine.

Justice Hugo L. Black: I think you answered my question as I intended to ask you when you said the standard what I asked for it holding you -- are going to be in the category.

Mr. Robert Kramer: Yes, that's the way I understood your question, Mr. Justice Black.

Justice Hugo L. Black: Where he's been, that he is, he knows he belongs there.

What is the standard that the Attorney General must follow in order to reach the conclusion as to whether he shall have a return of the properties?

Is there any other besides five?

Mr. Robert Kramer: Well there the conditions laid down also in -- in three and four.

Three says that the property or interest claim was not at anytime after September 1, 1939 held by or used with the consent of any person who was the owner thereof pursuant to any arrangement to conceal any property or interest.

In other words, this was not one of these “cloaking" arrangements.

And then the -- and then there is another standard in -- in Section 4 that there is no actual or potential liability under the renegotiation act, in respect of the property or interest to be returned.

And so he must meet -- roughly there are five things he must meet there.

And the last one, number five, of course, is the broadest one, namely, that in some respect it's the broadest one, namely, that such return is in the interest of the United States.

Justice Hugo L. Black: That's the ultimate determining of the standard.

Mr. Robert Kramer: That is -- well in the sense it is but I suppose that the --

Justice Hugo L. Black: Assuming -- assuming that he comes within the response of all the others.

Mr. Robert Kramer: Yes.

That is correct.

Justice Hugo L. Black: Assuming as it was said that there was a stipulation that he did then it could still deny him on the ground that the Custodian thought it was not in the interest of the United States, and that would be the final, ultimate --

Mr. Robert Kramer: Yes.

Justice Hugo L. Black: -- standard that he had the act under.

Justice Felix Frankfurter: Well he wouldn't be the ultimate determinant?

Mr. Robert Kramer: Who?

Justice Felix Frankfurter: The Custodian?

He's the Director of the -- wasn't he?

He can deal --

Mr. Robert Kramer: No.

Justice Felix Frankfurter: -- with the Attorney General within the Act.

Mr. Robert Kramer: It would be Attorney General.

Justice Hugo L. Black: That's going to be the Attorney General.

Mr. Robert Kramer: And he might even be the President if he wished to be.

Justice Hugo L. Black: I considered him as the ultimate Custodian?

Mr. Robert Kramer: Yes.

That is correct.

Justice Hugo L. Black: Would it make any difference whether the Attorney General or someone under him (Inaudible) the laws and terms?

Mr. Robert Kramer: Well --

Justice Hugo L. Black: Do you think if the -- the --

Mr. Robert Kramer: Well I think the Attorney General could --

Justice Hugo L. Black: Attorney General more power and that would give the --

Mr. Robert Kramer: No, I think not --

Justice Hugo L. Black: That has said now.

Mr. Robert Kramer: Under the present regulations, the Attorney General would simply not delegate it fully his powers to the Director of Alien Property.

Justice Felix Frankfurter: If the Court has said it makes a difference that delegation was given to cabinet officers rather than (Inaudible)

Mr. Robert Kramer: Well then perhaps it might make a difference.

Justice Hugo L. Black: Well maybe the Court said to them --

Mr. Robert Kramer: Under the present set up I might say that the way it operates is that in what are -- what are known as the --

Justice Hugo L. Black: I would -- I would presume that was the information with whatever the subject is constitutionally speaking, I know of no provision in the Constitution that requires that -- which provides that something could make him the President with the Attorney General, it doesn't even express to the Deputy Attorney General unless -- unless you're saying that the Constitution authorizes the Attorney General to do a certain thing.

I'm talking about delegation of power.

Mr. Robert Kramer: Yes.

Justice Felix Frankfurter: Does the Attorney General -- has the Attorney General, as a matter of fact, (Inaudible) in the interest of United States?

Mr. Robert Kramer: I think in only a few instances.

Justice Felix Frankfurter: And has the written opinion on that or just denied it?

Mr. Robert Kramer: I think in many -- as I understand it in certain instances at least the problem has involved secret or highly classified information and therefore it has not been fully divulged in the opinion.

Justice Felix Frankfurter: He just denied -- he just denied it.

Mr. Robert Kramer: That is correct, but I think there'd been relatively few cases actually that have gone off on that ground.

Justice Hugo L. Black: Who did it here?

Mr. Robert Kramer: Well here it is -- let me explain to you briefly the way the situation now operates.

The initial hearing is before the trial examiner who makes his recommended decision.

It then goes to the Director of Alien Property.

He makes his decision.

His decision is final except where as in this case more $50,000 is involved or maybe involved, or except where a novel or unusual question of law or policy is involved in those accepted cases so speak, the Attorney General is given an opportunity to review the case and the decision does not become final until the Attorney General has reviewed the case as was the situation here.

Ordinarily reviewing the case, unless the Attorney General disagrees with the decision of the Director, he does not write another opinion.

He simply says that he has reviewed it and he adopts the decision of the Director as his own.

That is the procedure followed.

Justice John M. Harlan: Could you give us any idea as to the volume of these claims, have they been very, very voluminous?

Mr. Robert Kramer: Yes, we have reference in that in our brief.

You will find there on page 20 of our brief note -- excuse me, page 30 of our brief.

Justice John M. Harlan: 30?

Mr. Robert Kramer: Footnote 25, I believe we have.

Your reference there, there have been approximately 12,000 claims down to the end of the fiscal year 1957.

Now those are all types of claims under Section 32, a very substantial volume.

Justice Charles E. Whittaker: Did I understand you to concede in answer to Mr. Justice Brennan's question that there is mandatory language in Section 32?

Mr. Robert Kramer: There's mandatory language, I think, in the sense that the Director must make a decision.

Justice Charles E. Whittaker: Well reference was made --

Mr. Robert Kramer: They must decide -- decide the case.

Justice Charles E. Whittaker: Reference was made to the word, “shall.”

Mr. Robert Kramer: Yes.

Justice Charles E. Whittaker: Well as I read this, it appears on page 44 of the petitioner's brief.

The President or certain law officers he may designate may return the property or the proceeds thereof whenever the President or such officer or agency shall determine, then follows one and then follows two that such owner and legal representative or it's just an interest of any are not, then follows (d) and then (d) says, “provided that notwithstanding provisions of sub -- Subdivision (d) return may be made to an individual who as a consequence of such rule.

Now I fail to see the basis upon which you feel there is any mandatory language because the word, “shall” relates only to “if he shall find.”

Mr. Robert Kramer: I think the basis in the argument is that the language indicates that Congress intended him to make a determination.

It intended however for his determination to be within his discretion.

Congress did not intend him simply to receive the claim and do nothing about it.

Justice Charles E. Whittaker: That's the point.

Mr. Robert Kramer: I think that is the point.

Chief Justice Earl Warren: Thank you, Mr. Fillman.

Argument of Henry I. Fillman

Mr. Henry I. Fillman: Mr. Chief Justice I did run over my time yesterday, but --

Chief Justice Earl Warren: Yes you may have -- you may have a few minutes to sum up your argument there.

It takes amount of time with the other side you may answer if you wish for a few minutes.

Mr. Henry I. Fillman: Thank you Mr. Chief Justice.

I will just confine my rebuttal to the statements made by Mr. Kramer on the point that the legislative history and particularly the fact that Section 34 was added to the Trading with the Enemy Act at the time they added the first proviso from Section 32 (a) (2) (D) has really nothing to do with the question before the Court because the purpose of incorporating the right to sue in Section 34, the debt claim provision review by the Court of a debt claim determination was clearly pointed out in the hearings before -- it's not on my brief, in the hearings before the Subcommittee No. 1 and Committee on the Judiciary, House of Representatives, 79th Congress on House Bill 5089, a Bill to amend the First War Powers Act, Serial No. 20.

And it is there stated by Mr. Markham, who was then the Custodian, that in view of this Court's decision in Markham v. Cabell which had held that one could sue the Custodian under Section 9 (a) to recover from the vested property a debt owing to the plaintiff.

There would be a first-come, first-serve situation as far as payment of the debt claims were concerned, so the Custodian asked legislation to take away from Section 9 (a), and it's in 9 (a) there is the provision that any person not an enemy or ally of an enemies, it's on page 42, claiming or to whom any debt may be owing from an enemy or ally of an enemy whose property or any part thereof shall have been conveyed to the Custodian may sue the Custodian or the Treasurer of the United States to recover on his debt out of the vested property.

They took that away in enacting Section 34 and allowed the creditor to come-in in an administrative proceeding and if he was dissatisfied with the administrative proceeding there could then be an equitable distribution of the vested assets owing by the former property owner to his creditors who are not enemies or allies of enemies and Section 34 is based on the National Bankruptcy Act.

There's a system of equitable distribution and review by the courts of the mere fact that they did that in the same Act which incorporated the first proviso is no indication and no proof that Congress did not intend that there should be no judicial review of any determination by the Custodian which was without supporting evidence or arbitrary or capricious or void.

That is to that.

Now as to the real point here on Section 32, when it says “may return” in the first part, the word “may” relates solely to the return of the property.

The word “may” does not relate to a determination of the status or the condition.

He is not given a permissive right to determine whether the man comes within the conditions laid down for return.

“May” in that sense must be read as “shall” or mandatory because the word “may” has been construed in a statute.

It has been construed by this Court and other courts.

The word “may” is to be read as mandatory.

It means shall or must whenever it is necessary to carry out the intent of the legislature that has enacted the particular statute in which the word is found and to carry out the sense of the policy of the legislation.

Now Congress in our brief quotes Congress on the sense and purpose of the first proviso of Section 32 (a) (2) (D).

Congress considered these people who were persecuted as non-hostile enemies.

Congress said we call them the enemies of our enemies.

They, in fact, wanted to have the allied course succeed they should have their property back.

That's the exact language of Congress in the reports.

Since that is the sense and the purpose and intent of the legislature to give these people back their property if they come within this class, then I suggest to the Court that the word “may” which only relates to return if it has any application or consideration with respect to the determination of status or condition, I say it should then be read as mandatory.

And my last point, if the Court please, is, that the issue here is not the expertise of the administrator.

He is not an expert on what were considered political, religious, or racial groups no more than I have.

He must determine that on the facts adduced on the record.

There were facts adduced here on the record before the hearing examiner.

The hearing examiner said though evidence was documentary and only one witness was called by the petitioner.

He names that witness in his recommendation and findings.

That witness is named M. Magdalena Shack.

Although it does not appear here, I doubt whether the Government will deny that M. Magdalena Shack is an employee and attorney in the Office of Alien Property.

So if there is any expertise in the office of Alien Property to determine this question, M. Magdalena Shack, an employee of that office, a former lawyer in Germany, arium, and who had taught one semester at Harvard law school, who was the witness here before the hearing examiner and who testified to the conditions in Germany and as to what the political groups and knew who the bar examiners were and the chief of the bar examiners then I say we have in the records the expert in the office of Alien Property that supported the case of the petitioner which evidence was disregarded by the Director when he made his decision and we say that was arbitrary, capricious, and void and if it's void, the District Court has jurisdiction.

It has jurisdiction to control not to decide, but to control void acts of an agency.

Justice John M. Harlan: Well that's just begging the question.

Mr. Henry I. Fillman: Sir?

Justice John M. Harlan: That's just begging the question, not arguing.

Mr. Henry I. Fillman: Well.

Justice John M. Harlan: Your question here finds that on better argument.

Mr. Henry I. Fillman: Thank you.