Petitioner, an alien, brought this action in a Federal District
Court to obtain judicial review of an administrative determination
by the Director, Office of Alien Property, sanctioned by the
Attorney General, that petitioner was not eligible under §
32(a)(2)(D) of the Trading with the Enemy Act, as amended, for the
return of property vested by the Alien Property Custodian in which
petitioner claimed to have an interest.
Held: judicial review of that administrative
determination was precluded by § 7 (c) of the Trading with the
Enemy Act, which provides that,
"The sole relief and remedy of any person having any claim to
any money or other property heretofore or hereafter . . .
transferred . . . to the Alien Property Custodian . . . shall be
that provided by the terms of this Act,"
since that Act cannot be construed to provide a judicial remedy
for a person such as petitioner. Pp.
363 U. S.
667-677.
(a) Section 10 of the Administrative Procedure Act does not
entitle petitioner to judicial review of this administrative
determination, both because the matter involved is "committed to
agency discretion" by § 32(a) of the Trading with the Enemy Act and
because judicial review is precluded by § 7(c) of that Act. Pp.
363 U. S.
670-676.
(b) A different conclusion is not required on the theory that,
by moving to dismiss petitioner's action, respondent admitted
petitioner's allegation that the administrative action was
arbitrary and capricious. Pp.
363 U. S.
676-677.
(c) The Declaratory Judgment Act does not entitle petitioner to
judicial review, because relief thereunder is precluded by § 7(c)
of the Trading with the Enemy Act. P.
363 U. S.
677.
106 U.S.App.D.C. 8, 268 F.2d 584, affirmed.
Page 363 U. S. 667
MR. JUSTICE HARLAN delivered the opinion of the Court.
Section 32(a) of the Trading with the Enemy Act (added by 60
Stat. 50, as amended, 50 U.S.C.Appendix, § 32(a)) authorizes the
return in certain circumstances of property vested by the United
States during World War II. Under that provision:
"The President, or such officer or agency as he may designate,
may return any property or interest vested in or transferred to the
Alien Property Custodian (other than any property or interest
acquired by the United States prior to December 18, 1941), or the
net proceeds thereof, whenever the President or such officer or
agency shall determine . . ."
that the following conditions are met: (1) the claimant was the
owner of the property in question prior to its vesting, or is the
legal representative or successor in interest of the owner;
[
Footnote 1] (2) he was not a
member of any of several excluded classes, summarized in the
margin; [
Footnote 2] (3)
the
Page 363 U. S. 668
property was not used pursuant to a "cloaking" arrangement,
whereby the interest of an ineligible person in the property was
concealed; [
Footnote 3] (4)
there is no danger of liability in respect of the property
attaching to the Custodian under the renegotiation statutes;
[
Footnote 4] and (5) "such
return is in the interest of the United States." [
Footnote 5]
The particular provision involved in this case is paragraph 2(D)
of § 32(a), which makes ineligible citizens of certain enemy
countries who were present in those countries after the onset of
hostilities, and its first proviso (added by 60 Stat. 930), which
exempts from that ineligibility certain persons who were the
victims of persecution. [
Footnote
6]
Page 363 U. S. 669
The question for decision is whether the District Court had
jurisdiction to review a determination of the Director, Office of
Alien Property, sanctioned by the respondent Attorney General,
holding this proviso inapplicable to the facts presented by the
petitioner's claim. [
Footnote
7]
Petitioner, a national and resident of Germany at all material
times, duly filed with the Attorney General a claim under the §
32(a)(2)(D) proviso for the return of the proceeds of certain
property vested by the respondent's predecessors in 1942, 1947, and
1948, asserting an interest therein of some $68,500. He alleged
that, throughout the relevant period, he, as an "anti-Nazi,"
claimed to have been a discriminated-against political group, had
been deprived of full rights of German citizenship, in that he had
been denied admission to the practice of law. A Hearing Examiner
recommended allowance of the claim, but his recommendation was
rejected by the Director on the ground that petitioner was
ineligible for relief under the § 32(a)(2)(D) proviso. [
Footnote 8] The Attorney General
Page 363 U. S. 670
refused review. Petitioner then sued in the District Court to
review the administrative determination, claiming it to have been
arbitrary and illegal. The court denied the Government's motion to
dismiss the complaint for want of jurisdiction. The Court of
Appeals reversed, holding, in line with its own prior course of
decisions, that judicial review of the administrative disposition
was precluded by § 7(c) of the Trading with the Enemy Act. 106
U.S.App.D.C. 8, 268 F.2d 584. Because of the importance of the
question in the proper administration of the Trading with the Enemy
Act, we brought the case here. 361 U.S. 874. For reasons given
hereafter, we affirm the judgment below.
Petitioner's principal reliance is upon § 10 of the
Administrative Procedure Act, which provides for judicial review of
agency action "[e]xcept so far as (1) statutes preclude judicial
review or (2) agency action is by law committed to agency
discretion." 60 Stat. 243, 5 U.S.C. § 1009. We find that both such
limitations are applicable here.
Section 7(c) of the Act provides:
"The sole relief and remedy of any person having any claim to
any money or other property heretofore or hereafter . . .
transferred . . . to the Alien Property Custodian . . . shall be
that provided by the terms of this Act. . . ."
40 Stat. 1021. We perceive no basis for petitioner's contention
that § 7(c) limits only the remedies available to nonenemies under
§ 9(a), or for construing § 7(c), passed in 1918, as not being
applicable to § 32, passed in 1946. The language of the section is
"all-inclusive,"
Becker Steel Co. of America v. Cummings,
296 U. S. 74,
296 U. S. 79,
and it speaks to the future
Page 363 U. S. 671
as well as the past.
See also Central Union Trust Co. v.
Garvan, 254 U. S. 554,
254 U. S.
568.
The only express provision in the Trading with the Enemy Act for
recourse to the courts by those claiming the return of property
vested during World War II is that contained in § 9(a). That
section, however, is applicable only to persons not enemies or
allies of enemies as defined in the relevant statutes, and hence is
not available to this petitioner, an enemy national. [
Footnote 9] While § 9(c) also entitles
certain classes of "enemies" enumerated in § 9(b) similarly to sue
in the courts to recover vested property whose return is authorized
under § 9(b), those sections apply only to World War I vestings.
See Feyerabend v. McGrath, 89 U.S.App.D.C. 33, 189 F.2d
694;
cf. Markham v. Cabell, 326 U.
S. 404. Although § 32(a) broadened the categories of
those having an enemy status who were eligible for the return of
property vested during World War II, unlike § 9(c), it contains no
express provision for judicial relief in respect of such
claims.
The question, then, is whether a right to such relief can fairly
be implied, for we shall assume that, if such be the case, the
requirements of § 7(c) would be satisfied. The terms of § 32 and
its legislative history speak strongly against any such
implication. The absence in § 32 of any provision for judicial
relief respecting "enemy" claims for the return of property vested
during World War II stands in sharp contrast to the presence of
such a provision in
Page 363 U. S. 672
§ 9(c) with respect to certain enemy claims arising out of World
War I vestings. The original version of what ultimately became § 32
did contain a provision for judicial relief comparable to that in §
9(c), not applicable, however, to property of enemy national
residents, as well as a "sole relief and remedy" provision
comparable to that in § 7(c) -- H.R. 4840, § 32(b), (c), in
Hearings before Subcommittee No. 1 of the Committee on the
Judiciary, House of Representatives on H.R. 4840, 78th Cong., 2d
Sess., pp. 1-2 -- but the subsequent draft of the bill,
substantially in the form as finally enacted in March 1946 (60
Stat. 50), omitted both provisions.
See H.R. 3750, in
Hearings before Subcommittee No. 1 of the Committee on the
Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st
Sess., pp. 1-2. While the legislative record contains no
explanation of these omissions, the committee hearings on H.R. 3750
and those on subsequent amendments to the Act preclude the view
that it was contemplated that persons having an enemy status, still
less those who were nationals and residents of enemy countries,
should have the right of recourse to the courts with respect to
administrative denials of return claims.
Speaking to H.R. 3750 at the initial committee hearing. Mr.
Markham, then Alien Property Custodian, stated:
"I want to be sure I make this clear. Supposing a person applies
to the Custodian for the return of a property, and, for reasons
that I deem appropriate under the bill, I refuse to return the
property. Now, we will say this person would have to be a technical
enemy, a Frenchman. He has no right to compel me to return it under
this bill."
Hearings before Subcommittee No. 1 of the Committee on the
Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st
Sess., p. 14;
see also pp. 11, 15.
Page 363 U. S. 673
And when a few months later, in August, 1946, various amendments
to the statute were considered and the § 32(a)(2)(D) proviso was
added (60 Stat. 930), § 32 came under severe criticism because of
the absence of provisions for judicial relief in respect of return
claims by technical enemies.
See Hearings before a
Subcommittee of the Senate Committee on the Judiciary, on S. 2378
and S. 2039, 79th Cong., 2d Sess., pp. 57-59, 61, 62-63. The
affording of such relief to enemy nationals was, however at no time
suggested. Congress nevertheless permitted § 32 to stand without
enacting provisions for such judicial relief, [
Footnote 10] and later proposed legislation of
that character also failed of enactment.
See S. 2544, 82d
Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess. [
Footnote 11]
Page 363 U. S. 674
The conclusion which the history of § 32 impels is confirmed by
the text of the section and other provisions of the Act. The
absence of any provision for recourse to the courts in connection
with § 32(a) return claims contrasts strongly with the care that
Congress took to provide for and limit judicial remedies with
respect to other aspects of the section and other provisions of the
Act.
See, e.g., §§ 32(d), 32(e), 32(f), [
Footnote 12] 33, 34(e), 34(f), 34(i). It is
not of moment that these provisions concerned direct judicial
relief, and not court review of denials of administrative relief.
The point is that, in this Act, Congress was advertent to the role
of courts, and an absence in any specific area of any kind of
provision for judicial participation strongly indicates a
legislative purpose that there be no such participation. Beyond
this, the permissive terms in which the § 32 return provisions are
drawn (
ante, p.
363 U. S. 667)
persuasively indicate that their administration was committed
entirely to the discretionary judgment of the Executive branch
"without the intervention of the courts."
See Work v.
Rives, 267 U. S. 175,
267 U. S.
182.
Petitioner, however, relying on
McGrath v. Kristensen,
340 U. S. 162,
contends that, even though he might not be entitled to judicial
review of an adverse administrative determination on the merits of
his claim, he is nonetheless
Page 363 U. S. 675
entitled to such review on the issue of his
eligibility
under the § 32(a)(2)(D) proviso, the only issue here involved. The
Kristensen case, involving eligibility for suspension of
deportation under § 244 of the Immigration and Nationality Act (66
Stat. 214, 8 U.S.C. § 1254), bears little resemblance to the
situation involved here.
See Heikkila v. Barber,
345 U. S. 229,
345 U. S. 233;
Switchmen's Union v. National Mediation Board,
320 U. S. 297,
320 U. S. 301.
The structure of § 32(a) does not permit of any such distinction in
this case.
Compare H.R. 4840, 78th Cong., 2d Sess., §
32(a). Indeed, it is not certain whether petitioner's theory of
partial reviewability would apply only to the proviso with which he
is concerned; to all of paragraph (2), but only to that paragraph;
or to paragraphs (1), (3), and (4) as well (
see pp.
363 U. S.
667-668 and notes
1-4 ante). None of these alternatives is
acceptable. As to the first and second, no reason appears why
either of these categories should be singled out for special
treatment, while the third would make reviewable determinations
which involve factors with which only the Executive Branch can
satisfactorily deal.
See, e.g., Hearings before
Subcommittee No. 1 of the Committee on the Judiciary, House of
Representatives, on H.R. 3750, 79th Cong., 1st Sess., p. 4 (proof
of pre-vesting ownership); Hearings before Subcommittee No. 1 of
the Committee on the Judiciary, House of Representatives, on H.R.
5089, 79th Cong., 2d Sess., p. 37 (proof of "cloaking"
arrangements). Beyond that, we think the congressional decision to
spell out in some detail certain limitations on the power it was
conferring on the Executive was not designed to bestow rights on
claimants, arising out of an assertedly too-narrow reading by the
Executive of the discretionary power given him. Rather, we consider
the specifications of paragraphs (1) through (4) as designed to
provide guides for the Executive, thereby lessening the
administrative burden of decision.
See Hearings before
a
Page 363 U. S. 676
Subcommittee of the Senate Committee on the Judiciary, on S.
2378 and S. 2039, 79th Cong., 2d Sess., p. 19.
We conclude that the Trading with the Enemy Act excludes a
judicial remedy in this instance, and that, because of this, as
well as because of the discretionary character of the
administrative action involved, the Administrative Procedure Act,
by its own terms (
ante, p.
363 U. S.
670), is unavailing to the petitioner. [
Footnote 13]
Petitioner's other contentions may be dealt with shortly. It is
urged that judicial review is in any event available because the
complaint, whose allegations as the case comes here must be taken
as true, alleges that the administrative action was arbitrary and
capricious. However, such conclusory allegations may not be read in
isolation from the complaint's factual allegations and the
considerations set forth in the administrative decision upon which
denial of this claim was based.
See Reagan v. Farmers' Loan
& Trust Co., 154 U. S. 362,
154 U. S. 401.
So read, it appears that the complaint should properly be taken as
charging no more than that the administrative action was erroneous.
This is not a case in which it is charged either that an
administrative official has refused or failed to exercise a
statutory discretion or that he has
Page 363 U. S. 677
acted beyond the scope of his powers, where the availability of
judicial review would be attended by quite different considerations
than those controlling here.
Cf., e.g., United States ex rel.
Accardi v. Shaughnessy, 347 U. S. 260;
Leedom v. Kyne, 358 U. S. 184.
Finally, petitioner's reliance on the Declaratory Judgments Act,
28 U.S. C.A. §§ 2201, 2202, carries him no further. Section 7(c) of
the Trading with the Enemy Act embraces that form of judicial
relief as well as others. Additionally, the Declaratory Judgments
Act is not an independent source of federal jurisdiction,
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.
S. 667,
339 U. S. 671;
the availability of such relief presupposes the existence of a
judicially remediable right. No such right exists here.
We conclude that the Court of Appeals correctly held that the
District Court lacked jurisdiction over this action, and that its
judgment must be
Affirmed.
[
Footnote 1]
§ 32(a)(1):
"That the person who has filed a notice of claim for return, in
such form as the President or such officer or agency may prescribe,
was the owner of such property or interest immediately prior to its
vesting in or transfer to the Alien Property Custodian, or is the
legal representative (whether or not appointed by a court in the
United States), or successor in interest by inheritance, devise,
bequest, or operation of law, of such owner. . . ."
[
Footnote 2]
§ 32(a)(2) disqualifies: (A) the Governments of Germany, Japan,
Bulgaria, Hungary and Rumania; (B) corporations or associations
organized under the laws of such nations; (C) persons voluntarily
resident since Dec. 7, 1941, in any such nation, other than
American citizens, certain diplomatic officers, or certain
persecuted persons; (D) citizens of such nations, other than
certain persecuted persons, who were present or engaged in business
there between Dec. 7, 1941, and Mar. 8, 1946; and (E) certain
foreign corporations or associations which, after Dec. 7, 1941,
were controlled by persons falling within the above categories.
[
Footnote 3]
§ 32(a)(3):
"that the property or interest claimed, or the net proceeds of
which are claimed, was not at any time after September 1, 1939,
held or used, by or with the assent of the person who was the owner
thereof immediately prior to vesting in or transfer to the Alien
Property Custodian, pursuant to any arrangement to conceal any
property or interest within the United States of any person
ineligible to receive a return under subsection (a)(2) of this
section. . . ."
[
Footnote 4]
§ 32(a)(4):
"that the Alien Property Custodian has no actual or potential
liability under the Renegotiation Act or the Act of October 31,
1942 (56 Stat. 1013; 35 U.S.C. §§ 89-96), in respect of the
property or interest or proceeds to be returned and that the
claimant and his predecessor in interest, if any, have no actual or
potential liability of any kind under the Renegotiation Act or the
said Act of October 31, 1942; or in the alternative that the
claimant has provided security or undertakings adequate to assure
satisfaction of all such liabilities or that property or interest
or proceeds to be retained by the Alien Property Custodian are
adequate therefor. . . ."
[
Footnote 5]
§ 32(a)(5).
[
Footnote 6]
§ 32(a)(2)(D) disqualifies:
"an individual who was at any time after December 7, 1941, a
citizen or subject of Germany, Japan, Bulgaria, Hungary, or
Rumania, and who on or after December 7, 1941, and prior to the
date of the enactment of this section, was present (other than in
the service of the United States) in the territory of such nation
or in any territory occupied by the military or naval forces
thereof or engaged in any business in any such territory:
Provided, That notwithstanding the provisions 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, has 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. . . ."
[
Footnote 7]
On May 16, 1946, the President delegated his functions under §
32(a) to the Alien Property Custodian. Executive Order No. 9725, 11
Fed.Reg. 5381. On Oct. 15, 1946, the functions of the Custodian
were transferred to the Attorney General. Executive Order No. 9788,
11 Fed.Reg. 11981.
[
Footnote 8]
The Director stated the essence of his decision as follows:
"Even if it were to be assumed that denial of a license to
practice law deprived claimant of full rights of citizenship, his
claim must be disallowed for the reason that he was not a member of
a political, racial or religious group that was discriminated
against. Anti-Nazis and non-Nazis do not constitute a political
group."
(Citing past administrative decisions.)
[
Footnote 9]
Section 9(a) authorizes "[a]ny person not an enemy or ally of
enemy" (defined in § 2 of the Act, as supplemented by the First War
Powers Act, 1941, 55 Stat. 838) to sue in equity for the return of
vested property in which he claims an interest, either in the
District Court for the District of Columbia or in the District
Court of the district in which the claimant resides. 40 Stat. 419,
as amended, 50 U.S.C.Appendix, § 9(a). As a German national and
resident, petitioner is concededly an "enemy" under the
statute.
[
Footnote 10]
At the same time, however, Congress enacted other provisions
relating to judicial remedies, § 33 providing a statute of
limitations on the commencement of suits under § 9, and § 34
providing for judicial review of administrative determinations on
debt claims allowable out of vested property (60 Stat. 925). In
connection with the former section, there was spread in the
Congressional Record, with the approval of the Chairman and Ranking
Member of the House Judiciary Committee, a letter from the
Custodian stating his understanding that "this amendment is not to
be regarded as implying that there is judicial review under section
32." 92 Cong.Rec. 10486. Similarly, in connection with the
enactment of § 32 a few months before, Congress had added to the
Act § 20, providing for judicial review of administrative
allowances of counsel fees in return proceedings before the
Custodian, 60 Stat. 54.
See also S.Rep. No. 920, 79th
Cong., 2d Sess., p. 7.
[
Footnote 11]
More particularly with reference to the § 32(a)(2)(D) proviso,
neither the Committee hearings preceding its enactment,
see Hearings before a Subcommittee of the Senate Committee
on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess.;
cf. Hearings before Subcommittee No. 1 of the Committee on
the Judiciary, House of Representatives, on H.R. 5089, 79th Cong.,
2d Sess., nor later Senate or House Reports referring to the
proviso --
see S.Rep. No. 784, 81st Cong., 1st Sess.;
H.R.Rep. No. 2338, 81st Cong., 2d Sess.; S.Rep. No. 600, 82d Cong.,
1st Sess.; Final Report of the Subcommittee on Administration of
the Trading with the Enemy Act, Senate Committee on the Judiciary,
pursuant to S.Res. 245, 82d Cong., 2d Sess., as amended by S.Res.
47, and S.Res. 120, 83d Cong., 1st Sess. -- contain any suggestion
that judicial review was contemplated in connection with such
claims.
[
Footnote 12]
This section, which requires the Custodian to publish in the
Federal Register a 30-day notice of his intention to return vested
property to claimants other than residents of the United States or
domestic corporations, provides that publication of such notice
"shall confer no right of action upon any person to compel the
return of any such property," and further that any such notice may
be revoked by the Custodian by appropriate publication in the
Federal Register.
[
Footnote 13]
The fact that, in a third-party suit affecting returned
property, the courts must, in accordance with § 32(e), determine,
if relevant, the claimant's eligibility under the § 32(a)(2)(D)
proviso does not militate against this conclusion. First, it is far
from clear that, in such circumstances, the doctrine of primary
jurisdiction would not call for a referral of that issue to the
Attorney General.
Cf. United States Navigation Co. v. Cunard
S.S. Co., 284 U. S. 474;
Far East Conference v. United States, 342 U.
S. 570;
Federal Maritime Board v. Isbrandtsen,
356 U. S. 481,
356 U. S.
496-498. Moreover, even if necessity compelled judicial
determination in suits between private parties of the issue
ordinarily disposed of under § 32(a), we would not be justified, in
the context of the other provisions of this statute, in inferring
from that a congressional willingness to have Executive
determinations reviewed in court.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE DOUGLAS join, dissenting.
This Court has gone far towards establishing the proposition
that preclusion of judicial review of administrative action
adjudicating private rights is not lightly to be inferred.
See
Leedom v. Kyne, 358 U. S. 184;
Harmon v. Brucker, 355 U. S. 579;
Stark v. Wickard, 321 U. S. 288;
American School of Magnetic Healing v. McAnnulty,
187 U. S. 94.
Generalizations are dangerous, but with some safety one can say
that judicial review of such administrative action is the rule, and
nonreviewability an exception which must be demonstrated. [
Footnote 2/1] To be sure, a clear command
of the statute will preclude review; and such a command of the
statute may be inferred from its purpose,
Page 363 U. S. 678
though
Leedom v. Kyne, supra, where I thought
nonreviewability proved from the congressional purpose, shows that
the Court is far from quick to draw such a conclusion. I cannot
agree that the statute here gives any clear direction that this
administrative determination that, as a matter of law, petitioner
was ineligible for the exercise of discretionary relief under §
32(a) should not be reviewable by the courts. Questions as to the
scope of that review, of course, are not now before us; simply
whether the power exists at all.
Section 7(c) of the Act states that the Act's remedies shall be
"[t]he sole relief and remedy" of claimants of vested property,
and, to be sure, this language is "all-inclusive,"
Becker Steel
Co. v. Cummings, 296 U. S. 74,
296 U. S. 79.
Let us, then, take a close and fully focused look at what those
remedies include, and compare them with what petitioner seeks.
Section 9(a) of the Act, under which petitioner, of course,
makes no claim, provides a judicial remedy for those who are not
enemies and not allies of enemies; they may sue in equity for the
return of their property. [
Footnote
2/2] Section
Page 363 U. S. 679
9(c) gives the same remedy to certain classes of enemies.
[
Footnote 2/3] But it is apparent
from both these provisions that they contemplate an independent
judicial remedy -- a suit to return property -- not an action to
review certain determinations of administrative officers. There is
not even a provision that application must be made for
administrative
Page 363 U. S. 680
relief before suit is brought. There simply is a requirement for
the filing of a notice of claim, which the statute clearly
distinguishes from making an application for an administrative
return, the latter being optional.
Draeger Shipping Co. v.
Crowley, 49 F. Supp.
215;
Duisberg v. Crowley, 54 F.
Supp. 365.
See Stoehr v. Wallace, 255 U.
S. 239,
255 U. S. 246.
Even where the applicant chooses to seek an administrative return,
suit may be instituted before the administrative action is
completed. The administrative remedy and the judicial remedy are
each completely independent of the other; Congress has made this
clear even to the extent of putting an "and/or" on the statute
books. In no sense, then, can the independent judicial remedy of §
9 be said to be a judicial review of administrative action. It is
independent of any administrative action's being taken. It requires
the courts to make a plenary,
de novo adjudication of all
the controverted issues, as they would in any lawsuit between
citizens.
Section 32(a), under which petitioner has applied for relief, on
the other hand, provides simply for an administrative remedy. That
it does, of course, under § 7(c) precludes the inference of any
independent judicial remedy such as § 9 provides. But there is no
reason why it should preclude the inference that administrative
action taken under it should be subject to judicial review. The
courts have developed many principles defining and limiting the
quantum of judicial review that may be afforded administrative
adjudication. This generally narrow character of judicial review,
in contrast to an independent lawsuit directed at the same end as
an administrative adjudication, points up the distinction between
the independent action under § 9 and what is contended for here. In
the latter, the courts cannot order the return of the property.
They simply may say that the administrator cannot stand on the
ground he gave for not returning it.
Page 363 U. S. 681
See Greene v. McElroy, 360 U.
S. 474,
360 U. S. 510
(concurring opinion). The former is clearly precluded, but the
latter hardly is. The approach to interpretation that cases like
Kyne, Harmon, and
Stark symbolize should indicate
that judicial review of the administrative action under § 32(a) is
available. Section 7(c) is by no means offended by this, since this
construction recognizes that the sole remedy under § 32(a) is
administrative in nature, but attaches to that administrative
remedy the general attribute of administrative remedies in our
system -- judicial review.
The Court points to the legislative history of § 32(a) as
indicating a contrary conclusion. It says that a judicial remedy
was originally provided for in early versions of the bill which
added § 32(a) to the statute, but that the final enactment omitted
it. This would be very relevant if what had been originally
contained in the bill had been a provision for judicial review of
action taken under § 32(a), such as what petitioner now contends is
implicit. But it was not; it was, rather, a provision for an
independent judicial remedy, patterned entirely in the style of §
9. [
Footnote 2/4]
Page 363 U. S. 682
That it was omitted, of course, adds another proof that there
can be no independent judicial action to get a return under §
32(a), but it does not tell us that normal judicial review into
administrative action under § 32(a) is to be foreclosed. Mr.
Markham's remarks, quoted by the Court, are, of course, explicable
on the ground that there was no counterpart of § 9's provision for
an independent lawsuit in § 32(a). In fact, they were spoken in
response to a question whether "the individual whose property has
been taken or affected can appeal to the courts of the land to have
his equity determined." Hearing before Subcommittee No. 1,
Committee on the Judiciary, House of Representatives, on H.R. 3750,
79th Cong., 1st Sess., p. 13. The question is a good description of
the functions of courts under § 9. It does not describe the
functions of courts exercising a review function of administrative
action under § 32(a). The subsequent legislation which the Court
mentions as having failed of passage, S. 2544, 82d Cong., 2d Sess.;
S. 34, 83d Cong., 1st Sess., was not legislation to provide
judicial review, but to afford an independent judicial remedy
similar to § 9. [
Footnote 2/5] Thus
it is apparent that the alternative that was presented to Congress
and rejected clearly enough was not ordinary judicial review of
determinations under § 32(a), but independent judicial action of a
sort comparable to § 9's.
The Court does not demonstrate any policy on which Congress may
have been acting and from which it might be inferred that judicial
review was impliedly precluded under § 32. Congress clearly
precluded independent lawsuits,
Page 363 U. S. 683
but there is no demonstration that it acted in pursuance of any
purpose which would be broad enough impliedly to negate judicial
review of administrative action as well. So there is no reason why
the general principle should not apply:
"Generally, judicial relief is available to one who has been
injured by an act of a government official which is in excess of
his express or implied powers."
Harmon v. Brucker, supra, at
355 U. S.
581-582.
There is then clearly established jurisdiction to review under
the general principles which find expression in § 10 of the
Administrative Procedure Act; the statute does not "preclude
judicial review." 60 Stat. 243, 5 U.S.C. § 1009. But the Court also
holds that, within the meaning of § 10, "agency action is by law
committed to agency discretion." Since want of jurisdiction in the
District Court is found, I take it the Court holds that the
question, review of which is now sought, which is an issue of
statutory construction, is totally and exclusively for the
administrative officers to determine -- not simply that the courts
are to give their determination of this question of law
considerable weight.
Cf. Labor Board v. Hearst Publications,
Inc., 322 U. S. 111,
322 U. S. 130;
Gray v. Powell, 314 U. S. 402,
314 U. S. 411.
Once it is established that the statute does not preclude judicial
review, this conclusion seems to me untenable. The issue is a
question of law; the construction of a detailed and moderately
specified standard. It is not like the ultimate determination that
the return be "in the interest of the United States," § 32(a)(5),
which is clearly where the ultimate reservoir of discretion lies
under § 32(a). This determination was never reached. We need not
speculate about the breadth of judicial inquiry in judicial review
where the administrative decision not to return the property is
based on that ground, or is based on one of the other grounds under
the statute. The quantum of review can be adjusted to the problem
before the courts. Here. the determination not
Page 363 U. S. 684
to return was based on a holding that petitioner did not come
within the first proviso to § 32(a)(2)(D). The proviso's terms were
viewed administratively not as guides to an administrative
discretion, but as legal standards. Under commonplace principles,
the determination must stand or fall on that basis. It may be that
the novelty of the standards of that proviso (
see
Subcommittee Hearings, Senate Committee on the Judiciary, on S.
2378 and S. 2039, 79th Cong., 2d Sess., p. 19) should teach the
courts to give considerable weight to the administrative
construction of the law. But that is not to say, as the Court does,
that it is so much a matter of administrative discretion as to
preclude judicial review. [
Footnote
2/6] To my mind,
McGrath v. Kristensen, 340 U.
S. 162, is squarely in point. There, there was a statute
which bristled with discretion as much as this one. But where the
administrative decision under it was not rendered on the basis for
the exercise of discretion, the statute provided, but as a matter
of law, judicial review was available. We retreat from established
principles of administrative law when we say it is unavailable
here. The judgment of the Court of Appeals should be reversed, and
the order of the District Court declining to dismiss the complaint
for want of jurisdiction should be affirmed.
[
Footnote 2/1]
See Jaffe, The Right to Judicial Review, 71 Harv.L.Rev.
401, 432.
[
Footnote 2/2]
In pertinent part, § 9(a) provides:
"(a) Any person not an enemy or ally of enemy claiming any
interest, right, or title in any money or other property which may
have been conveyed, transferred, assigned, delivered, or paid to
the Alien Property Custodian or seized by him hereunder and held by
him or by the Treasurer of the United States, or to whom any debt
may be owing from an enemy or ally of enemy whose property or any
part thereof shall have been conveyed, transferred, assigned,
delivered, or paid to the Alien Property Custodian or seized by him
hereunder and held by him or by the Treasurer of the United States
may file with the said custodian a notice of his claim under oath
and in such form and containing such particulars as the said
custodian shall require; and the President, if application is made
therefor by the claimant, may order the payment, conveyance,
transfer, assignment, or delivery to said claimant of the money or
other property so held by the Alien Property Custodian or by the
Treasurer of the United States, or of the interest therein to which
the President shall determine said claimant is entitled:
Provided, That no such order by the President shall bar
any person from the prosecution of any suit at law or in equity
against the claimant to establish any right, title, or interest
which he may have in such money or other property. If the President
shall not so order within sixty days after the filing of such
application or if the claimant shall have filed the notice as above
required and shall have made no application to the President, said
claimant may institute a suit in equity in the United States
District Court for the District of Columbia or in the district
court of the United States for the district in which such claimant
resides, or, if a corporation, where it has its principal place of
business (to which suit the Alien Property Custodian or the
Treasurer of the United States, as the case may be, shall be made a
party defendant), to establish the interest, right, title, or debt
so claimed, and if so established the court shall order the
payment, conveyance, transfer, assignment, or delivery to said
claimant of the money or other property so held by the Alien
Property Custodian or by the Treasurer of the United States or the
interest therein to which the court shall determine said claimant
is entitled. . . ."
40 Stat. 419, as amended, 50 U.S.C.Appendix, § 9(a).
[
Footnote 2/3]
Section 9(c) provides:
"(c) Any person whose money or other property the President is
authorized to return under the provisions of subsection (b) hereof
may file notice of claim for the return of such money or other
property, as provided in subsection (a) hereof, and thereafter may
make application to the President for allowance of such claim
and/or may institute suit in equity to recover such money or other
property, as provided in said subsection, and with like effect. The
President or the court, as the case may be, may make the same
determinations with respect to citizenship and other relevant facts
that the President is authorized make under the provisions of
subsection (b) hereof."
As added, 41 Stat. 980, as amended, 50 U.S.C.Appendix, § 9(c).
The relevant classes of enemies are set forth in § 9(b). Petitioner
makes no claim under § 9(c).
[
Footnote 2/4]
In fact, the independent judicial remedy was not even put
in
pari materia with the administrative remedy under § 32(a). It
simply provided:
"After filing a claim with the Alien Property Custodian pursuant
to subsection (a) hereof, a claimant may institute a suit in equity
in the United States District Court for the District of Columbia or
in the district court of the United States for the district in
which such claimant resides, or, if a corporation, where it has its
principal place of business (to which suit the Custodian shall be
made a party defendant), to establish that he is not a foreign
country or national thereof as defined pursuant to subsection (b)
of section 5 hereof, and to establish the interest, right, or title
claimed. The claimant shall obtain a judgment or decree ordering
the return to him of the interest, right, or title to which the
court shall determine he is entitled, but only if the court shall
adjudicate that he is not a foreign country or national thereof. .
. ."
§ 32(b), H.R. 4840, in Hearing before Subcommittee No. 1,
Committee on the Judiciary, House of Representatives, on H.R. 4840,
78th Cong., 2d Sess., pp. 1-2.
[
Footnote 2/5]
This legislation seems to have contemplated a judicial remedy
much broader than that of the early provisions before the addition
of § 32,
see 363
U.S. 666fn2/4|>note 4,
supra. The bills covered
"[a]ny person eligible for a return under this section" (§ 32), and
provided that such a person, after filing a notice of claim, might
"institute a suit in equity to recover such money or other property
in the manner provided by subsection 9(a) hereof and with like
effect."
[
Footnote 2/6]
One of the grounds on which the administrative officials may
decline return under § 32(a) is that the claimant was not the owner
of the property at the time it was vested, or the successor
thereof. § 32(a)(1). Is this simply to be deemed a guide to the
administrative discretion in granting returns, or a legal
standard?