LOCATION: Dry Docks at Reed, WV
DOCKET NO.: 319
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 363 US 666 (1960)
ARGUED: Feb 29, 1960 / Mar 01, 1960
DECIDED: Jun 20, 1960
Facts of the case
Media for Schilling v. RogersAudio Transcription for Oral Argument - February 29, 1960 in Schilling v. Rogers
Audio Transcription for Oral Argument - March 01, 1960 in Schilling v. Rogers
-- 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.
Hugo L. Black:
That's the one the Court relied on, isn't it?
Yes, that is the one that the Court of Appeals relied on in this case and in the four other cases --
Hugo L. Black:
Well I mean in the motion for dismissal.
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).
Did it argue the matter at length in any of the prior cases?
I think in the first case, McGrath against Zenith --
-- 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.
Has the question arisen in any other Court of Appeals?
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 --
Hugo L. Black:
Is it likely to arrive elsewhere, isn't it?
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.
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.
Well – (Inaudible)
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.