Wiener v. United States

PETITIONER:Wiener
RESPONDENT:United States
LOCATION:Hazlehurst Manufacturing Company

DOCKET NO.: 52
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 357 US 349 (1958)
ARGUED: Nov 18, 1957
DECIDED: Jun 30, 1958

Facts of the case

By the War Claims Act of 1948, Congress established the War Claims Commission for the purpose of adjudicating claims for compensating internees, prisoners of war, and religious organizations. Wiener was confirmed as a member of the Commission by President Truman in 1950. In 1953, when President Eisenhower requested Wiener’s resignation, Wiener refused. Eisenhower subsequently appointed a substitute to Wiener’s post. The Commission was abolished in 1954, and Wiener brought a claim to recover his salary from the time of his removal to the last day of the Commission’s existence.

Question

Did President Eisenhower have the authority to terminate Wiener’s membership on the Commission?

I. H. Wachtel:

Chief Justice, prior to the recess, I had set forth the historical basis for our view that this agency was a legislative and judicial body.

I’m aware of the language of this Court and other tribunals the use of the term quasi, quasi legislative, the quasi-judicial, the tendency to label.

I suggest that the Court — that War Claims Commission in this case was truly an offspring of the legislative — legislature performing its functions, performing duties traditionally those of the Congress, performing in the cause with those activities functions of a judicial character.

In the Humphrey’s case, this Court had held that — that Congress had us an appropriate incident of its power, the power to fix the period during which they shall continue and to forbid their removal except for cause in the meantime.

In all respects, we suggest to the Court that the agency here is far more, if I may use the term a quasi-legislative and quasi-judicial agency then in the Federal Trade Commission situation.

We think the sole distinction in this case, not in the Federal Trade Commission case, the Humphrey’s case was that in the Humphrey’s case Congress fixed the term — they fixed the term here.

But in the Humphrey’s case it enumerated certain causes for removal.

In the instant case, the statute is completely silent.

It enumerates no causes for removal.

We say — we suggest to this Court that in this case, it’s evident and it should be considered evident that Congress intended that there’d be no power of removal in the present.

The lesson we feel that must be learned of the Humphrey case teaches us is that the President has no inherent power, no implied power over this type of agency by virtue of the vesting of the power of appointment in it.

We feel that he has over such agencies only such power as Congress gives him because if as this Court said he does not possess an illimitable power.

In order to possess any power, it must come from some place.

It cannot come solely from the vesting of the power of appointment because Congress could easily have vested the power of appointment in the head of the department.

We say that the mere vesting of the appointment does not imply the power to remove because the whole concept of the implied power of removal was its necessity, the need for it for the President to carry out his duties and obligations.

But the duties and obligations other than those fixed in the Constitution that the President possesses what Congress gives him.

I suggest the — to the Court that this isn’t a case of Congress limiting or failing to limit power.

That in this area in dealing and creating this type of agencies, what Congress does is fix the conditions under which this agency shall operate.

It fixes the conditions under which the President may impinge on the functions of this agency.

The sole power given to the President was the power to nominate and with the advice and consent of the Senate appoint.

Having performed that duty, this agency under the basic concept of the functions and separation of power was to remain free and unhampered by any action or activity of the President in performing truly legislative and judicial powers.

Felix Frankfurter:

This — the — the kind of — the concerns of this Commission were a fund that was in existent, is it not?

I. H. Wachtel:

Yes, Your Honor.

And which could be implemented from time to time by further appropriations.

Felix Frankfurter:

Who were the functionary who were the trustee we’re broadly speaking at this time?

Where was its fund — to this position of this fund lie?

I. H. Wachtel:

Well, your — Your Honor, just ask me two questions.

The — the funds where in the Treasury of the United States and under the jurisdiction of a depository like a bank, the Treasury of the United States.

Felix Frankfurter:

That the amount of money could be distributed among those who had defined — who had provable claims against it to make sure the approval of — granting defined by Congress, is that right?

I. H. Wachtel:

That’s correct, Your Honor.

Felix Frankfurter:

And the fund was in the Treasury and the disposing office of the — pass on the claims up to the time this Commission was passed.

Did anybody pass on those claims?

Isn’t properly construed to you?

I. H. Wachtel:

No, not on —

Felix Frankfurter:

From the Executive of Treasury?

I. H. Wachtel:

No.

Felix Frankfurter:

And just as it were in escrow, isn’t it?

I. H. Wachtel:

It — it was the same if I may use the illustration, Your Honor, of my right to issue a draft against funds in the bank.

If the draft was in proper order, in this case, if the certificate of the War Claims Commission was —

Felix Frankfurter:

I’m — I’m — I want to know the situation before the War Claims Commission was in existence.

It —

I. H. Wachtel:

Oh.

Felix Frankfurter:

It was given authority to hear claims against this fund, is that right?

Now before they were in existence, there was a fund, was there not?

I. H. Wachtel:

There were funds in the Treasury of the United States.

Felix Frankfurter:

Up to the time, I’m not —

I. H. Wachtel:

Yes.

Felix Frankfurter:

I’m — I’m assuming the War Claims Commission wasn’t in existence.

There was no such Act who could draw against that fund, who could determine, who had a valid claim against that, anybody?

I. H. Wachtel:

Congress of the United States.

Felix Frankfurter:

What?

I. H. Wachtel:

Only the Congress.

Felix Frankfurter:

But it hadn’t made provisions for asserting claims against that fund, is that right?

I. H. Wachtel:

Not of this nature, Your Honor.

There were other —

Felix Frankfurter:

How can you forget about the Claims Commission?

I’m coming to that.

I. H. Wachtel:

Yes.

Felix Frankfurter:

I want to know what there was in existent before there was the War Claims Commission.

I. H. Wachtel:

There was a —

Felix Frankfurter:

What’s the — what the Government’s situation was?

I. H. Wachtel:

The disposition of the fund is covered by the Trading with the Enemy Act.

And I’m not prepared Your Honor to give you in detail each of the functions describing the Act.

Felix Frankfurter:

I don’t want to know — could anybody get any money out of that fund before the War Claims Commission?

I. H. Wachtel:

Not unless Congress authorized it, no.

Felix Frankfurter:

But then, the answer is no.

Congress —

I. H. Wachtel:

That’s correct.

Felix Frankfurter:

— had made — made no such provision.

Could — Congress had provided there’s all claims against that fund should be determine by the Secretary of the Treasury or the Attorney General?

I. H. Wachtel:

I think it could, yes.

Felix Frankfurter:

Well, the answer, it could because in other such claims it has done so.

As Congress had done variously about claim against funds in the Treasury of the United States it catered from a foreign country, as you indicated.

It did it as to Mexican and all other international conflicts and it has done so as to special claims against foreign governments asserted by this Government on behalf of some individuals, like the famous case, the La Abra Company.

And did they — that’s one of three things, it self decided that John Smith is entitled to it, promised to do that, couldn’t he?

I. H. Wachtel:

Yes, he could.

Felix Frankfurter:

He could decide that the Secretary of State should determine that, couldn’t he?

I. H. Wachtel:

Well, it could.

Now, the question whether that would —

Felix Frankfurter:

Well, it does — done so in the past.

I. H. Wachtel:

Yes, sir.

But I don’t think we’ve had it determined whether that was a valid delegation of authority.

Felix Frankfurter:

Well, I thought the decision in La Abra which instead indicated that — that Congress did one of three things.

It could make a disposition.

It could — it leaves the disposition for determination by some executive officials or it could make it a matter of going to Court, usually with the Court of Claims, is that true?

I. H. Wachtel:

Yes.

Yes, precisely like —

Felix Frankfurter:

Now, that could’ve been done as to this fund, wouldn’t it?

I. H. Wachtel:

Yes, it could have.

Felix Frankfurter:

Is that affect your argument?

I. H. Wachtel:

No, I — I don’t.

It does not, Your Honor, for this reason.

Congress has time — time delegated many activities to the executive branch of the Government.

These activities may necessarily not have been truly legislative functions.

I think every time that the Congress enacts any law when it provides by statute that certain Acts are in violation of the Robinson-Patman Act.

The definition to what is a violation of the Robinson-Patman Act is a legislative function.

The enforcement to that function, it delegated to the executive branch.

It could just as well have delegated the determination of those facts to a Court and that wouldn’t have made it any the less a judicial function.

The mere fact that Congress in its wisdom delegates some of its functions to the executive branch of the Government and gives the President full power over that agency or that individual isn’t precisely the situation we have here because when it delegates that function, it can also set forth the conditions under which that function shall be performed.

Felix Frankfurter:

Are you suggesting that what is legislative, what is executive is determinable by so-called a natural law, that those are pitched — that it were (Inaudible) that there they are and no amount of (Inaudible) could change their meaning or their — their use or their function, is that what (Voice Overlap)?

I. H. Wachtel:

No, no I’m not Your Honor, because —

Felix Frankfurter:

Well then there must be some deeper problem here than putting a label and saying this is legislative because I find, isn’t it?

I. H. Wachtel:

Well, I —

Felix Frankfurter:

I’m suggesting to you that the cases that I fought, that isn’t a hypothetical case.

Those are cases in the book, the La Abra Company and Mexican company.

Congress from time to time does it and one of three ways, it itself as this fellow has a lawful claim and the Mexican Government is paid over to the United States, so many thousands, a hundreds of thousands of dollars and John Jones can get it.

Or it leaves it to the Secretary of State to determine whether his claim is bona fide or not.

Or it says, you go to the Court of Claims (Inaudible)

I. H. Wachtel:

Well, I have been unable, if Your Honor please, to find legislation where the Congress has delegated to the Treasury or to the Secretary of the Treasury the definition and the determination of the rights of an individual.

Its Congress which created — creates the right to get the funds and it’s Congress which sets up the remedy.

Until Congress creates the right and provides the remedy and there have been classic illustrations where Congress has given the right without a remedy.

Felix Frankfurter:

Well, Congress — there are no law in federal courts until Congress passes an Act establishing —

I. H. Wachtel:

That’s correct, Your Honor.

Felix Frankfurter:

Now, as to the District and Circuit judges, execute — are they legislative?

Are their legislative people?

Do you decide that they can’t be ruled by the President because they are legislative?

Would that make intelligent talk?

I. H. Wachtel:

Well, if Your Honor is talking now about the District Court judges in the same category as the Court of Claims or the Tax Court, I — I think we have to define and point out that there is a fundamental difference.

Felix Frankfurter:

I’m not suggesting that.

Let’s take before the — when the Court — take the territory of judges which never had like opinions, (Inaudible)

Felix Frankfurter:

What do you say about the?(Voice Overlap) —

I. H. Wachtel:

Well, then —

Felix Frankfurter:

Could the President have dismissed them?

Congress said that you — that they shall have a tenure of eight years or 10 years whatever it was.

Could the Congress say this is a bad judge and I’m going to fire him?

I. H. Wachtel:

This Court has never precisely decided that question.

Felix Frankfurter:

But if we only dealt with problems in which this Court have decided, we wouldn’t have any —

I. H. Wachtel:

Well, it —

Felix Frankfurter:

— interesting time with having — to argue cases.

I. H. Wachtel:

Its — it’s my view, if it please the Court, if I give my view.

I say that following the philosophy that I think underlies the Court’s decisions in the few cases that we’ve had of territorial judges.

The direct question wasn’t met because in those cases, in the case of the Minnesota judge and the case of the Alaska judge, the issue wasn’t raise in Minnesota, the Act specifically gave the President power to name his — to remove him by naming his successor.

I think in the Alaska case, the McAllister case, all that the judge was interested in there was his salary from the time of his removal to the time of the appointment of the successor.

But other cases have indicated — indicate that this Court has felt that the Congress in creating the courts and the territories was not creating a Court under Article 3 of the Constitution but rather under the provision of the Constitution which gives the Congress the power to pass all laws needful for the operation of the territories.

And I —

Felix Frankfurter:

I — I’d supposed there’s no doubt about that, the territory judges were not Article 3 judges.

I. H. Wachtel:

Well, as this Court has so held and has so indicated in the O’Donoghue case and in the Williams case.

Felix Frankfurter:

Well now, what I want to know is because of that fact, the President of the United States in the light of the decisions that you have brought dismissed the territorial judge who has only a tenure of eight years.

I. H. Wachtel:

I think he has no power unless —

Felix Frankfurter:

Well, if the Federal Trade Commission, the judicial officers, I should think, judges of a territory must be judicial officers.

I. H. Wachtel:

Well, except this, Your Honor — if Your Honor please, the Congress in — in setting up this territorial codes in the past except in the cases of Puerto Rico and Hawaii and the Virgin Islands.

In all the of the prior Acts as — at least those I have been able to find, it specifically gave the President power —

Felix Frankfurter:

But that — that doesn’t help one to decide whether when it doesn’t.

He had it by virtue of his office.

And I should think it’d be easy to answer, the Federal Trade Commission can’t be fired before — by the President except under the conditions of Congress has laid down, territorial judges couldn’t be.

I should think that be not too great a jump in reasoning, is it?

I. H. Wachtel:

It might not be too great to jump in reasoning, Your Honor, but I — as a lawyer I’m —

Felix Frankfurter:

What if — if you had doubt about that and you ought to have any doubt — then you ought to have the greatest doubt about this case.

That’s all I’m suggesting.

I. H. Wachtel:

I don’t have doubt about this, Your Honor.

Felix Frankfurter:

But you have doubt about the territorial in Court of Claims judges.

I. H. Wachtel:

No, I don’t have any doubt at all about the Court of Claims’ judges this Court has already ruled.

Felix Frankfurter:

Well, I think you have a hard time in extracting your judgment from the issue in order to advance the argument.

The point of my argument is that we didn’t talk in the (Inaudible) by juggling words, executive and legislative.

Earl Warren:

Mr. Wachtel, may I ask a question?

I. H. Wachtel:

Yes, Your Honor.

Earl Warren:

If — if this — how could this man be removed, say that, be given cause for removal, misconduct or such, right after he’d been removed?

I. H. Wachtel:

I — I don’t think he could be removed and Your Honor this I think is the — perhaps the most trouble some part of this case.

I don’t think the President could remove.

I think we would have to resort to impeachment but that doesn’t shock me anymore than it does the difficulty to remove a judge.

Earl Warren:

I just wondered if there was any other (Voice overlap) —

I. H. Wachtel:

I — I’ve been unable to find any cases that would help me to perform the judicial function of rendering a judge.

I’d like to reserve the rest of my time.

William J. Brennan, Jr.:

Mr. Wachtel, you’re not going to deal with res judicata point?

I. H. Wachtel:

I thought I would leave that for my rebuttal, if it please the Court.

Earl Warren:

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

The only addition that the Government would like to make to the statement of the case made by counsel for the petitioner is that the Court of Claims made it very clear in its judgment that it was not satisfied to all that there would be no power to remove this petitioner that it found that there was no intent on the part of Congress to interfere with the presidential power and that it could not delete that it was Congress’ purpose or intent in connection with this legislation that the only resort should be to the cumbersome and very difficult and unusual procedure of impeachment.

And therefore, although the Court of Claims concluded that the function of this Commission was both legislative and judicial with which conclusion the Government disagrees.

It held that the petitioner could be removed by the President because there was no intent on the part of Congress to leave this — this man without any control in connection with this work.

On the question of what power is in the President seems to us resolves around the question of the character of the functions of the office.

The Myers case holds up an executive office in general terms that the President has a power that cannot be interfered with to remove.

And the Humphrey case holds that if the functions are legislative and judicial and if the Congress has made it clear that it intends that there’d be no interference by the executive by the President in the removal that — the removal cannot be made except in accordance with the terms defined by the Congress in the legislation.

And you recall in that legislation they found that there wasn’t desired by the Congress to have this Commission be independent, that it was made bipartisan, that it was to exercise chancery functions like a court and carry out some of the legislative process in making rules and regulations and because of all of these various things that the Congress had clearly indicated its intention and purpose and also by providing express provisions on the ground of negligence and failure to malfeasance, properly carry out the acts of the office and the three grounds prescribed that the Congress had shown that it should not — the President should not have the power of removal except as defined expressly in the Act itself.

In the Ruberoid case, this Court in a dissenting opinion by Mr. Justice Jackson which was not disagreed with in this particular by the rest of the Court wing into at some length as to what is the nature of administrative body that is carrying on a legislative function.

And in that opinion, he develops a considerable length, the fact that in such — in carrying on such a function, Congress generally lays down a statute which is more or less in skeleton form and it — you might say it’s the high spots that describes the general provisions and then it oppose upon the administrative body the duty to try to define and go into detail as to the application by rules and regulations that are developed under that.

And that is the nature of the function that the Federal Trade Commission in a case that’s just been illustrated before the Court before this one.

Now, in regard to the judicial or quasi-judicial functions of such an administrative body, we think that in this kind of a problem, we are getting into the question of the separation of powers and is where the administrative body is exercising the function under Article 3, that is the judicial function of the courts that this Court has said that there could not be a removal because in that area the administrative body is carrying on a decision and judgment, a feature that is the very nature of the principles of separation of powers should not be under the control and dictate of the President.

Now, if we examine the statute to see what kind of authority this Commission had, we find that the statute gave the petitioner full guidance that he did not have to implement the statutory standards.

He did not have to have a skeleton statute but he had clearly defined provisions in the statute which told him just how he was to decide about these claims.

J. Lee Rankin:

And by the way, this was a fund that was developed out of the Trading with the Enemy Act which was amended from time to time but was passed during the first World War in regard to enemy assets and large number of assets of both the Japanese and Germans had been taken over and it was estimated by the courts to Congress that they — this fund amounted to some $300 million that was going to be disposed of depending upon the amount of the claims by these Commissioners.

So, it was a task that had a great deal of responsibility and the country had very genuine and great interest in its proper administration.

Felix Frankfurter:

May I trouble you?

I ought to know this Mr. Solicitor but I don’t.

Would you mind stating what the course of ultimate determination is after this Commission passed on a claim?

J. Lee Rankin:

There was no — there was an express provision that there could be no appeals.

There was a provision for processing the claim and then an appeal to the Commission itself.

But the statute provided it expressly that there would be no appeal and no action by mandamus.

Felix Frankfurter:

What I want to know is apart from the cases that we’ve had here recently what’s open for a court consideration?

Were these determinations awards or denial of law to the amount of the award subject to change at the will of the Executive, the Treasury or the President?

J. Lee Rankin:

They were not.

The Commission’s determination was final, whatever it decide the statute prohibited any appeal or any revision or of such connection with any kind.

Felix Frankfurter:

I — I don’t mean to ask you about other agencies that are different but if you can tell me, was this Commission in its authority the finality of it like or unlike the Indian Commission that has these —

J. Lee Rankin:

Well, in my recollection about the Indian Claims Commission is that there is a provision for an appeal to the Court of Claims and —

Felix Frankfurter:

Not executive changes —

J. Lee Rankin:

No.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Yes.

There was a provision for internees who were detained during the war to receive specific benefits and they would receive $60 per each calendar month of interned and compensation on the basis of weekly wage and also compensation on the basis of weekly wage of $37 and a half.

Then there was a further provision for prisoners of the war, a set of categories in the Sections 5 to 8 of the statute.

Potter Stewart:

Is the statute set up but not in that respect in your brief, Mr. Solicitor?

J. Lee Rankin:

Yes.

The detail language is set out in the appendix on page 76, Section 5 and then it goes on to Section 6 on page 80, 7 on page 83, and 8 is the provision for the report on page 84.

Then a summary of those provisions were set out in our brief on pages 47, 48, and a part of 49.

Section 6 provides for prisoners of war or their survivors to receive a dollar a day for each day the enemy government failed and this is the language, “To furnish him the quantity or quality of food to which he was entitled as a prisoner of war under the terms of the Geneva Convention of July 27th, 1929 which was regarded to the treatment of prisoners of war.”

So you see the amount that could be awarded under both of those Sections and the criteria for determining in that amount were expressed so all that the Commission had to do would determine whether or not the particular claim came within the definition of the statute.

Hugo L. Black:

Somebody would have to determine the facts, how long —

J. Lee Rankin:

Yes.

Hugo L. Black:

— it’s been in —

J. Lee Rankin:

That’s — that’s right.

J. Lee Rankin:

But they would — they would not have to extend the language of the statute by rules or regulations or legislative — quasi-legislative action like the Federal Trade Commission or some of the other commissions do.

They would merely take a criteria like has been done with a mixed Claims Commission or with other commissions during our history and determine in accordance with the statute whether the claim came within the best provisions and they’re either in or out depending upon the factual matter.

Hugo L. Black:

And the amount to be determined would be?

J. Lee Rankin:

It’s fixed in accordance with the statute.

Hugo L. Black:

That’s more like a court action.

J. Lee Rankin:

Well, it’s different.

And I’ll try to elaborate that.

Hugo L. Black:

In view of your law of that determination?

J. Lee Rankin:

Yes.

Hugo L. Black:

How much?

J. Lee Rankin:

But the executive branch, administrators in many areas this Court has recognized determines facts and applies the law to facts and still is exercising an executive function.

It isn’t a — this Court held has not just by determining facts and applying the law of those facts.

It is not exercising a judicial function.

William J. Brennan, Jr.:

Well, are they adversary hearings Mr. Solicitor, in the record?

J. Lee Rankin:

No.

There’s a claim filed and it is — it possibly could come into that kind of a category as a judicial proceeding in accordance to what Article 3 requirements.

If there was a controversy or case and if there was adversary and there was this subpoena served and the pleadings developed —

William J. Brennan, Jr.:

You say that could if they are under —

J. Lee Rankin:

It — it can’t under this Act.

But if it —

William J. Brennan, Jr.:

Can or cannot?

J. Lee Rankin:

It cannot.

William J. Brennan, Jr.:

Cannot.

J. Lee Rankin:

Because it’s expressly provided that if the claim — whatever action the Commission takes in regard to the claim is final.

There can’t be any court action to review it —

William J. Brennan, Jr.:

No, I — I didn’t (Voice overlap) —

J. Lee Rankin:

— by mandamus or otherwise.

William J. Brennan, Jr.:

I didn’t have that in mind.

I have in mind that a proceeding before the War Claims Commission itself.

Is that — is that an adversary proceeding itself?

J. Lee Rankin:

No, it is not.

William J. Brennan, Jr.:

It is not.

J. Lee Rankin:

And I — I was trying to say that if it did — if there was such a provision then it could possibly get into the category where it would get into a federal court, it could get into an Article 3 Court —

William J. Brennan, Jr.:

Well, how did the — the Commission if you can tell us shortly, actually deal with the claim?

J. Lee Rankin:

Well, they had lawyers who would review the claim in the first instance.

And then in the limited number of cases, the cases were appealed to the Commission itself.

William O. Douglas:

They had hearings?

J. Lee Rankin:

Yes.

And the Commission would then determine the — the claim and rule on it and that’d be —

William O. Douglas:

Well, what —

J. Lee Rankin:

— the end of it.

William O. Douglas:

— what was the hearing — what was the hearing like in the case where there was a hearing?

J. Lee Rankin:

The record doesn’t show and the inquiry I made was so sketchy that the best I could say was that it apparently developed the facts of the time the — the prisoner or internee suffered the treatment of the statute provided with the claim would be allowed for it.

William J. Brennan, Jr.:

Well, would the Commission sit and hear evidence in that respect?

J. Lee Rankin:

I don’t — I don’t know the answer to that.

The hearings — my understanding was none — this is — are not accurate, I’m afraid.

That it was a preliminary examination and then there was an opportunity for an appeal to the Commission itself but whether there was a de novo hearing, I’m not — I don’t know.

Hugo L. Black:

Section 11 provided for a hearing in the usual words of the provisions for hearings (Inaudible)

J. Lee Rankin:

Yes.

Felix Frankfurter:

Mr. Solicitor, you will recall that the Act passed by the first Congress, contention of its revolutionary veterans which held not enforceable but it is just as this Court sitting on (Inaudible) for the reasons that their determination was nearly to be recommendatory to the Secretary of the Treasury.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And the same thing disposed of what were made for the first Court of Claims Act.

I remembered Section 14 said the Secretary of the Treasury could revive that.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

And in short, if we’re trying to make in the first measure, the Court, the Circuit Court in the first Court of Claims Act, the Court, an agency, a functionary of an honest regard, presidential annexed to it, the Secretary of the Treasury.

There is no such —

J. Lee Rankin:

There’s no provision —

Felix Frankfurter:

— like — there are no such use here of this Commission as a fact finding body for the Secretary of the Treasury then to make the determination, that is correct, isn’t it?

J. Lee Rankin:

That is correct.

There is none.

J. Lee Rankin:

There is also an enlargement of some of the powers of the Commission two years later in which of us given the authority to pass on claims of prisoners of war based upon the violation of Title 3 of Section 3 of the Geneva Convention relating to the labor of the prisoner of war and inhumane treatment defined as including but not limited to violations of certain specific articles of the Geneva Convention.

And these were specifics so that the — all the Commission had to determine was whether or not they came within those specific requirements.

Felix Frankfurter:

May I ask you one more question then I’ll try to stop for a while.

I speak as one whom was — it comes relevant, not sympathetic to the result in the Myers case.

I want to know, disclose my attitude, I want to know if — if I gathering — I haven’t read your brief but I had paged it.

Why this case seems to you so important in the conduct of affairs of this Government?

Because I think those considerations are from my point of view is relevant to this kind of a problem?

You — you almost — I don’t mean to say you reargued the Myers case, but you go in heavily on the whole problem of the presidential removal power.

And perhaps before you get through it, you will say something about why you deem this case is so important.

I don’t mean to say it’s unimportant but why do you think it has a reach such as your brief implies, I, for one would be much interested.

J. Lee Rankin:

Well, the — the interest of the Government in the case is the — in the basic principle of the conduct of the executive branch of the Government.

And the authority or power of the President to protect the public interest in the — the ability to remove and substitute other officers in the executive branch that will respond to carrying on that — the business of that branch of the Government in the best management possible.

And it’s our belief that under the take care that the laws will be faithfully executed the President has to have this power in order to carry out the obligations imposed upon him by the Constitution.

Now, I do not say that the — he has to have the power that’s denied him in the Humphrey case.

But in this type of situation, here you have a question of whether or not he is — the Commission is actually executing or carrying out the legislative or judicial function, we do not think that he — he was in this case.

But even assuming that he was, it seems that there should be a power in the executive to remove any officers whose conduct he is responsible for.

If the Congress has not seen fit to say this cannot be done because the impeachment process is so unrealistic to handle that kind of a problem in the area of the executive branch itself and the responsibility of the President that it can’t be assumed that it’s adequate.

And furthermore, the Congress itself has, in most cases provided expressly for the removal on various specific grounds of negligence or malfeasance or failure to carry out the — those responsibilities in the three different manners time after time.

Now, its hardly conceivable that Congress would have been intended that these War Claims Commission with this — involving this $300 million fund that they would pass upon these claims and they’re also passing upon not only that aspect of whether the man is entitled to it.

But they’re also passing upon the questions of foreign relations all the time and whether or not some foreign country violated the Geneva Convention because if they don’t find that, the man is entitled to the blame and several of these categories.

And if they do find it, then they’re in — they’re right down in the heart of — of foreign relations problems like Congress had seen fit in — before and time after time provide the Secretary of State or the State Department shall have control of that situation for obvious reasons.

Felix Frankfurter:

But it didn’t in this case.

J. Lee Rankin:

It — it didn’t in this case.

Felix Frankfurter:

That’s why — perhaps to get further like to the — when I said I wasn’t sympathetic with the Myers case, my lack of sympathy derived from declaring unconstitutional the limitation such as Congress have placed upon it which this Court nullified.

Then along come Humphrey, and it goes on to my reading of it the consideration of the intrinsic things that these functionaries do and he seems to make a distinction between executive in the sense, a part of the President’s business.

The fellows who — in this vast establishment of ours, who are his various agencies, his functionaries, means of carrying out his job for the improvement?

And therefore, I should think Humphrey’s (Inaudible) you got to look to the intrinsic kind of the thing that a body does.

And if it is — doesn’t — is charged with determining issues not unlike extensions, what courts do that if — a federal case — to the Humphrey, they didn’t.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Then — then if you’ve got a Commission, a bargain, making these positions, the vastness of the firm doesn’t make him different.

Felix Frankfurter:

The fact that Congress could as you say and has done in the past that the Secretary of State do all this because it does involve foreign relations.

When Congress hasn’t done that, has appointed a Commission, did on fact, the way the Court of Claims has — do all the time and make awards and doesn’t give corrective means, doesn’t make the determination subject to the final determination of some functionary or some completed function as the President, the Secretary of State whom he could fire at will.

That’s not a nice word to use by the way, (Inaudible) displace at will.

But (Inaudible) what they say in passing on whether John Smith has a good claim final, then — then I am much interested to have it differentiated from what is the heart, to me at least, and what was also a surprise, I was surprised by both of the decisions, if I may say so.

Yes, the heart of the Humphrey’s case.

J. Lee Rankin:

Well, I — I can go a long with you quite of ways on your statement and that seems to me that Myers does hold that where you’re dealing with the executive branch itself and the officers that the President is responsible for that there cannot be a limitation to power.

And then it seems to me that Humphrey goes into the question of the function of the activity, but it also analyzes the function with regard to being quasi legislative and quasi-judicial and you will recall that Justice (Inaudible) said, “There is no executive activity or a power exercised of any kind.”

And there might be some question about whether that went a little too far in such a statement as that.

But here, this is not by its nature, a court action.

This is not exercising the judicial power of the United States.

This is exercising the — the preliminary question of whether do the claim comes within the standards of the statute.

Felix Frankfurter:

When the award is made, must be a judgment or whatever it’s called — what is it called, an award?

J. Lee Rankin:

It’s an award.

Felix Frankfurter:

When the award is made, must the money be paid out in — in — must that award be honored by the Treasury?

J. Lee Rankin:

Yes.

Felix Frankfurter:

The way a Court of Claims — in the way — a Court of Claims award really requires an appropriation by the Congress.

J. Lee Rankin:

Well, but this — this requires appropriation, too.

But you see, these funds were actually vested funds that were taken from enemy.

And the reparations agreements come in to have application as though these funds were belonging to the enemy and to pay damages that the enemy did to these various individuals.

In — and that was the way that the Congress was treating it rather than in the concept that Congress was voting the funds of the United States to be applied against this purpose.

Felix Frankfurter:

Let me ask you this.

You suppose that they could have done it with reference to this, but they did with reference to the Mexican claims, the La Abra case, and have chosen to put this into the District Court, could have said anybody who has a claim against us must prove it before a District Court?

J. Lee Rankin:

Well, I don’t think that they could do it unless they would get it into some form that was a controversy or case except to treat it as a Tucker Act case under the Article 1 power.

If they would treat it as a Tucker Act case, then they could but then it — they wouldn’t be exercising a judicial function as distinguished from the executive function of — of just passing on the claims.

So, we’d get into a controversy in this particular problem if there was a provision for the man to go into Court and sue the United States.

But there isn’t anything like that and the —

Hugo L. Black:

But why would they have to go to the Court?

I — I asked you that for this reason, some through the Act.

J. Lee Rankin:

Yes.

Hugo L. Black:

It provides that a submission can receive an adjudicated claim, but they do so after hearing with the right to summon witnesses.

Hugo L. Black:

It provides also to receive and determine according to law the amount and validity and when they reached that determination, the Secretary of the Treasury must pay it.

What’s the difference in that in the language of a state judicial —

J. Lee Rankin:

Well, because —

Hugo L. Black:

— in the general —

J. Lee Rankin:

— it isn’t —

Hugo L. Black:

I’m not talking about under Article 3, but on — under the anything.

J. Lee Rankin:

Well, you just about have to relate it to a case or controversy in order to get to the basic exercise of judicial power —

Hugo L. Black:

And the —

J. Lee Rankin:

— under the decision of Court.

Hugo L. Black:

Can it be a case of controversy?

Has it been determined, determined under law, determined at the hearing, must render a judgment after a hearing?

J. Lee Rankin:

No.

Because you don’t have the ordinary processes in the Court in an adversary proceeding.

Hugo L. Black:

But isn’t it if they’re entitled to hearing, and we held time and time again that that means a hearing should be heard, either for — give the evidence, you can’t decide it without notice and so forth and so forth?

J. Lee Rankin:

Well, that maybe a due process, but it isn’t a case or controversy unless you have an adversary proceeding and the process of the Court issued and so forth.

Hugo L. Black:

Well, it isn’t as much an adversary proceeding as a case against the Government itself that goes to the Court of Claims.

J. Lee Rankin:

No.

Because —

Hugo L. Black:

That’s a case or controversy.

J. Lee Rankin:

Well, I — I don’t believe the criteria are defined in the cases before the Court of Claims like they are here.

There, you have a determination of the facts and — and various material as to whether or not it comes within the requirements of the liabilities as fixed by the Congress in various statutes.

Hugo L. Black:

Well, that’s what this is, to receive and determine according to law the amount and validity of the claim.

J. Lee Rankin:

Well, but this — this is actually a determination of whether or not these people had claims not against the United States at all, but against these enemy powers.

Hugo L. Black:

Well, it’s a claim, a claim that — by which there’s a fund.

J. Lee Rankin:

Yes.

But there’s a presumption that when the claim was asserted, if it comes within the requirements of the statute which are well spelled out that it will be allowed.

Hugo L. Black:

Well, isn’t that true here?

J. Lee Rankin:

Yes, that’s true here.

But that isn’t true in an adversary proceeding that there —

Hugo L. Black:

Can it presume that if you can prove your case and it comes under the law, your claim will be allowed.

J. Lee Rankin:

In an adversary proceeding?

Hugo L. Black:

(Voice overlap).

J. Lee Rankin:

Well, you — you have the question of the other side trying to prove the contrary and you don’t have that here.

You just have the assertion by the one side that I come within the language of this particular statute and therefore, the presumption is that the moment he does come within it, he’s entitled to it and that is on adversary proceeding while the other is entirely different.

Felix Frankfurter:

The enemy powers are out, aren’t they?

They’re out, and out of this fund.

J. Lee Rankin:

Yes.

Felix Frankfurter:

I mean, this fund isn’t — is going to go either to claimants or remain in the Treasury of United States, isn’t that right?

J. Lee Rankin:

Well —

Felix Frankfurter:

And anyhow, the enemy powers around, Congress may compassionately turn some over, of course it be compassionate.

J. Lee Rankin:

That’s right.

At the present time, the status of it is that Congress has said by this legislation that it will not be returned and that it be distributed in accordance with this law and so far as it’s necessary.

Felix Frankfurter:

So many — but many questions about whether the claimant is — is a bona fide claimant, whether the — he’s really a stalking horse for the German or Japanese interest etcetera, etcetera, isn’t that true?

That all these issues come into place?

J. Lee Rankin:

Well, not in this particular —

Felix Frankfurter:

I mean, in —

J. Lee Rankin:

— litigation here.

Felix Frankfurter:

No, but I mean, in — in regard to the fund, that that —

J. Lee Rankin:

Yes, the vesting —

Felix Frankfurter:

The vesting —

J. Lee Rankin:

— questions.

Felix Frankfurter:

— and all of that.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And doesn’t this Commission have to pass on those issues?

J. Lee Rankin:

No.

Those — those are passed on by the alien property custodian and then there’s provision for an appeal and so forth and that’s —

Felix Frankfurter:

But he has to prove this claim, the claimants before this Commission have to prove the amount and the actual laws?

J. Lee Rankin:

Yes.

Felix Frankfurter:

All of that?

J. Lee Rankin:

They — they — the basis of theirs is that they were held prisoner or they were interned or they received inhumane treatment or they were required to labor in violation of the Geneva Conventions.

Felix Frankfurter:

They have to make good on those claims.

J. Lee Rankin:

And if they established whatever the statute provides in regard to that, there — it’s presumed that they will be paid.

But that’s entirely different from the case or controversy in the judicial system.

And therefore, it’s an entirely different problem as to whether or not the President should have the power of removal of the Commissioner.

Now, there was a provision in this statute that was comparable to that in the Federal Trade Commission case and that was a requirement, a report to the Congress which was made through the President.

And we think if that was made to the President, is no — makes no real difference about that being a function as an agency of the Congress, but that report was all completed before this petitioner entered to find his office at all.

And so, we think that that cannot be relied on in any way.

Now, in regard to the quo warranto, this action as —

William J. Brennan, Jr.:

Excuse me, before you get to that Mr. Solicitor, if in fact the — the functions of this Commission are in any event nonexecutive in character, would you raise a power of removal out of the power of appointment?

J. Lee Rankin:

Yes.

We — we claim —

William J. Brennan, Jr.:

In light of the silence that is of the Congress on the issue of removal.

J. Lee Rankin:

We claim that Humphrey holds that if the intention of the Congress has been made clear that the President would not be able to exercise this power that — that is the holding of it here.

William J. Brennan, Jr.:

But here we have silence, completely.

J. Lee Rankin:

But where there’s sounds that there is an implied power out of the power to appoint and that was the holding of the Court.

William J. Brennan, Jr.:

That’s the only place or you have imply it from the power to appoint?

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

And there alone.

That’s the only place upon which you could hang it.

J. Lee Rankin:

That’s right.

Now, this quo warranto proceeding was brought by the petitioner in the District Court against the new appointees to the Commission that the President substituted.

And in that proceeding, the Court held that there was no limitation by Congress upon the power of removal and an appeal was taken and after the appeal was taken, the Reorganization Act was approved by the Congress and it expressly did brought to an end this — this particular Commission and substituted a new one that combined — that a Commission then in being and this particular Commission under a new name and that became moot at that time then.

And the case was — the appeal was stipulated to be dismissed and we think that that is a collateral estoppel and conclusive upon the petitioner in this case with regard to the fact that there are no limitations by the Congress on the power of the President to remove in this case.

And this Court has held to that effect in the Munsingwear case where it applied this rule to the Government.

William J. Brennan, Jr.:

Well, I take it then the original District Court’s judgment to this case was favorable to the defendant, was never vacated upon the dismissal of the appeal for mootness.

J. Lee Rankin:

That’s right.

William O. Douglas:

You — you do maintain res judicata?

J. Lee Rankin:

Yes.

We — we presented the question in our answer and briefed it in the Court of Claims and we think that it is conclusive, not on — on the question of whether he can sue for payment which is a different claim than the quo warranto but is conclusive on the question of whether or not there was any limitation on the power of the President to remove because that’s exactly what the quo warranto proceeding involved and we say it’s a substance rather than a form of a proceeding that counts.

And that in fact the United States was the — the real party or at least of privity in that proceeding.

J. Lee Rankin:

Therefore, it was the same question.

William J. Brennan, Jr.:

How — how is the United States in privity, the — it was the incumbents who were the defendants, were they?

J. Lee Rankin:

Yes, but it was —

William J. Brennan, Jr.:

And of becauses United States defends it.

J. Lee Rankin:

Yes, sir.

William J. Brennan, Jr.:

Well, how do you spell out privity?

J. Lee Rankin:

Well, because the — the incumbents were claiming they had a right to the office and the petitioner was claiming that they had no right because he was occupying it and it was that question that the United States of course was the — that party of real interest as to the proper construction of this principle on the right of removal.

William J. Brennan, Jr.:

In other words, the best way, it was predicated on the President’s power of removal and the verdict favorable to the defendants necessarily had to determine that issue favorably to the Government’s position because that did have a power, is that right?

J. Lee Rankin:

That’s right.

And the — the holding was expressly that there was no limitation upon the power of the President to remove.

Earl Warren:

Mr. Solicitor General, this event was res judicata, would’ve been so simple to dispose this on — on the — on the petition for the writ.

I wondered why you — you didn’t go into that on the — in your acquisition to brief in opposition.

J. Lee Rankin:

Well, it isn’t squarely res judicata, Mr. Chief Justice.

Earl Warren:

Well, collateral estoppel then, what — why — either one of them, whichever it is.

But —

J. Lee Rankin:

Well, I’m —

Earl Warren:

— the — the rule says that you shall raise every question.

J. Lee Rankin:

I think it has a bearing that the Court might very well conclude that it wasn’t conclusive in this particular matter and that it was still had to pass on the rest of the questions in the case.

If — it isn’t a square res judicata because the Courts of Claims has held in a number of case that we cite in the brief that they’re still free to bring this action, not this — in this particular case, but a similar type of action for the amount of salary they would have received even though they do not win their case about reinstatement before the District of Columbia.

So, it’s a question that has not been determined squarely and the Court of Claims has held otherwise in several cases.

Earl Warren:

But the only thing there was this — and I wondered why that wasn’t raised — issue wasn’t raised in the original response if it’s important enough to raise here.

J. Lee Rankin:

Well, I think it should’ve been because I think it’s kind of a point that the Court may address itself to without reaching the constitutional questions if it finds it to conclude the matter.

Felix Frankfurter:

And the lateral estoppel is that the examination in the quo warranto proceedings in the Court — the first instance, the President’s powers were not restricted.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And the case is on the way up to the Court of Appeals, to the Court of Appeals when the new Commission and Congress exercise its power to put an end to this gentleman’s office, put it on the way up to the Court of Appeals.

J. Lee Rankin:

Yes.

But —

Felix Frankfurter:

But on appeals in large?

J. Lee Rankin:

It isn’t quite Congress.

It was a reorganization —

Felix Frankfurter:

Well —

J. Lee Rankin:

— plan that Congress did approve of course.

Felix Frankfurter:

Yes.

But only if Congress passed a legislative amount —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— of office.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

And — but the appeal from the (Inaudible) — from the District Court was on the way up, wasn’t it?

J. Lee Rankin:

Yes.

And it was stipulated by the parties that the appeal was moot by reason of that action of it.

But it was never vacated or reversed or disposed of.

Hugo L. Black:

No relief could have been granted, could it?

No relief could have been granted.

J. Lee Rankin:

No, that’s right.

Hugo L. Black:

They were out office.

J. Lee Rankin:

That’s right.

But this Court rejected that in the Guthrie case, this Court rejected that idea that the mere fact that it was moot and that —

Hugo L. Black:

In which case?

J. Lee Rankin:

In the Munsingwear case where it referred to Professor Scott’s Article in Harvard Law Review and held that the mere fact that they couldn’t get relief because it was moot was not sufficient justification.

Hugo L. Black:

But why couldn’t they get relief there?

Why was it moot in this case?

J. Lee Rankin:

Well, the Government was in exactly this spot in the Munsingwear case and the Court said that it could have applied to have had the case vacated and reversed and failed to do so that —

Hugo L. Black:

Because of mootness.

J. Lee Rankin:

Yes.

Hugo L. Black:

Well, what was the mootness?

J. Lee Rankin:

I don’t recall Mr. Justice.

Hugo L. Black:

Was it the legislating out office by the Government agency?

J. Lee Rankin:

I — I don’t believe so.

I’m quite sure it wasn’t that.

Hugo L. Black:

Was quite a different issue to this one.

J. Lee Rankin:

Well, but it was clearly — it was a — it was moot and —

William O. Douglas:

(Inaudible)

J. Lee Rankin:

That’s right.

William O. Douglas:

Well, what I want know is, is this the usual order that the Court of Appeals (Inaudible)

J. Lee Rankin:

Well, I’m — I couldn’t answer that.

This was done by a stipulation also that it might have been different in that the parties did know more than that.

William O. Douglas:

(Inaudible)

J. Lee Rankin:

Well, I couldn’t tell you what the practice was, but this was done by a stipulation which might make it different than the Court would ordinarily follow.

It was left on its own.

That’s what I want to make clear.

Felix Frankfurter:

Would it — it wouldn’t be shocking to interpret the stipulation as not inclined that Wiener stipulated himself out of his litigation for all purposes.

J. Lee Rankin:

Well —

Felix Frankfurter:

You’d have to do that, wouldn’t you?

I mean —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— the stipulation would have to be at least a negligence or (Inaudible) failure to have it vacated so you must (Inaudible) to do what he did here.

That’s what’s in there.

J. Lee Rankin:

Yes.

I think so.

William J. Brennan, Jr.:

Mr. Solicitor —

Felix Frankfurter:

It wasn’t enough to the Government anyhow to vacate this.

J. Lee Rankin:

No.

William J. Brennan, Jr.:

We — we don’t have in the record I think the — either the stipulation of dismissal or any order that the — entered on — there on it, there was one, do we?

J. Lee Rankin:

It’s — the transcript doesn’t seem to show it.

William J. Brennan, Jr.:

Do you suppose we could have both the stipulation in any order that may have been entered on it.

Felix Frankfurter:

The stipulation is in the —

J. Lee Rankin:

It’s in the brief.

Felix Frankfurter:

— reply brief on page —

J. Lee Rankin:

That’s right.

Felix Frankfurter:

— footnote on page 7.

Where do you argue at this point?

J. Lee Rankin:

Where do we have to argue?

Where is it?

J. Lee Rankin:

Oh.

Where are your facts?

I can’t find it, except in passing on your introductory statement.

Felix Frankfurter:

To the rule 21.

Page 70?

William O. Douglas:

Isn’t that in page 71?

70?

J. Lee Rankin:

We start on page 68 and we go through 69 —

Right.

J. Lee Rankin:

— and 70.

Felix Frankfurter:

There is — there’s evidently something bearing on Justice Brennan’s question, agreement of dismissal that is hereby agreed, etcetera, and the clerk is hereby directed to render the case dismissed and that he transmit a certified copy of this agreement to the Clerk of the United States District Court and the slightest notion what — what that implies, that evidently something is implied, the District Court does something in result.

J. Lee Rankin:

That’s — I’m advised by counsel that the stipulation was made between the parties and that there was no order entered upon it.

I assume that under the federal rules that it’s supposed to be as a matter of course.

William J. Brennan, Jr.:

Well, I noticed that if the (Inaudible)

(Inaudible) can see whether they —

William J. Brennan, Jr.:

— the certificate (Voice overlap) (Inaudible) case was on August 10, (Voice overlap) and dismissed under Rule 21.

And the Court (Inaudible)

J. Lee Rankin:

That’s correct.

(Inaudible)

Hugo L. Black:

The case was dismissed?

J. Lee Rankin:

Yes.

Earl Warren:

Mr. Wachtel.

I. H. Wachtel:

I don’t mean to be suspicious about a very important case like this, but I might say to the Court that some 75 or a 100 regular practitioners in the Court of Claims would like very much to know that this is the position the Government takes on res adjudicata, because scores — scores, literally scores of paid cases in the Court of Claims determined in the Courts, the District Courts in favor of an employee of being re-litigated in the Court of Claims on the very question of the first right to remove him.

And if the Government is right that this is res adjudicata, then I can say that every case where the Government has won in the District Court and the District Court has upheld the right to discharge that all of these people are going to lose their cases.

Because in the Court of Claims today, the Government takes the position that in the District Court proceedings, the United States of America is not a party.

I hesitated before to render a judgment in response to an inquiry from Mr. Justice Frankfurter, but if we are going to continue to maintain the fiction that when a suit was brought against Mr. Sawyer, the Secretary of Commerce is — was in the Steel case, that it was not a suit against the United States.

It was going to follow the concepts that we did in Lukens Steel and Larson versus foreign and domestic commerce.

I. H. Wachtel:

But these are suits against an individual for failure to comply with the law and these suits are not binding on the United States of America.

This is the position this Court has taken and it’s a position which the Department of Justice takes consistently in the Court of Claims that every time a veteran, a Government employee is successful in the District Court, the District Court has no authority to order him back to work.

All it can say, he was improperly removed, failure to comply perhaps with the Veteran’s Preference Act or any one of a number of reasons.

When that employee wins in the District Court, he knows inevitably he can’t get back on the payroll, but all he can do is now go into the Court of Claims and get a judgment for X dollars from that time on until the date of judgment.

And the Government has regularly as it did in this case, as it does all the time come into the Court of Claims and take the position, “We were not a party to the suit in the District Court.

You didn’t sue the United States of America because you couldn’t sue the United States of America.”

It didn’t give its consent to be sued.

Hugo L. Black:

Well, if a person or a defendant dies, is that case used to a basis on the ground of mootness on the background of death?

I. H. Wachtel:

It’s generally on the grounds of death if it’s an action which abates with that.

Hugo L. Black:

The evidence considered moot because he died?

Would that change the cause of action, if there is any?

The Munsingwear case was on mootness.

I. H. Wachtel:

In the — in the Munsingwear case, if Your Honor please, what had happened was that the Government, the price control administrator had withdrawn the regulation.

He had a suit pending in the District Court for treble damages and for injunctive relief.

He held up the suit for treble damages trying to get injunctive relief to try to stop Munsingwear from allegedly violating an OPA regulation.

Hugo L. Black:

The law was changed.

I. H. Wachtel:

While the case was on appeal, pending in the Court of Appeals, OPA withdrew the regulations that there was nothing to enjoin.

There was no stipulation on the Court, the Court itself in its decision dismissed on the grounds and mootness.

When they went back to try the fundamental question of treble damages, the alleged violator raised the question as to whether or not the decision of the District Court which had held that there had been no violation warranting injunctive relief was not res adjudicata on the treble damage count.

This case came all the way up to this Court and this Court held that there was a method of vacating the District Court judgment.

The Government should have done it.

It didn’t do so.

Now, I say to the Court that this case is different.

The United States’ Court of Appeals for the District of Columbia has this rather peculiar Rule 21.

Ordinarily, we know that where you —

William J. Brennan, Jr.:

That’s just a local law.

I. H. Wachtel:

That’s — it’s a local rule.

It doesn’t tie in to any federal rule that I know of and — and the reason for it is that if I may speculate for a moment, it results primarily from the tremendous volume of — of personal injury cases where during the course of an appeal when the — perhaps the transcript is in one of the briefs, sir, and the case is settled and rather didn’t have to go to the Court and have the Court prepare — have order prepared.

The Court by Rule 21 authorizes the clerk to — it says dismiss.

I think really what it is, a strike from the calendar, but I’m not prepared to debate that with you — with the Court or with the Government.

I. H. Wachtel:

The clerk then takes and sends a certified transcript of this stipulation back to the clerk of the Municipal Court.

This of course is not in the record, but I’m advised that the clerk of the District Court, he simply doesn’t know what to do with it.

He just enters it in the docket.

But this particular stipulation has been filed in the Court of Appeals and that is the evidence.

I’ve been unable to find any cases in the District Court construing this.

I — I understand that the Court of Appeals is aware of the Munsingwear case and it has been as I observed.

I can’t cite you the specific case.

It’s careful on cases that come up that are dismissed from a — mootness in the case of death or things of that sort, to send it back to the District Court with specific instructions to dismiss finally so that this problem of mootness does not come up.

But here, I think there’s a more important question than the — the strict question of res adjudicata, to have this type of a question raised at this late stage and have a determination made on a matter that I suggest to Your Honors a cursory reading of the docket at the Court of Claims will show pay case after pay case where the Government comes in and says, “We’re not bound by that.”

And it may not surprise Your Honors that most times when they do re-litigate the question in at least two cases in the Levee case and in the O’Brien case when the Government re-litigated the question in the Court of Claims, the favorable decision of the District Court was in fact reversed.

And an employee who came to the Court of Claims thinking he had nothing more to do than what we call a 39 (c) proceeding to determine how much salary was coming to him finds himself confronted with the defense that his discharge was proper or that there was good cause for it and he losses this case.

That is precisely what happened to the O’Brien case.

This is to those who practice in the Court of Claims, the leading case in the Court of Claims on this subject that we don’t have res adjudicata when we bring an action in the District Court and if successful and then go to the Court of Claims.

Felix Frankfurter:

Mr. Wachtel.

I. H. Wachtel:

Yes, sir.

Felix Frankfurter:

Really, we ought to decide that in this case, we had a lot of trouble, you probably remember the case better than I am, with the navy fellow who died and then somebody else or somebody took his place.

I. H. Wachtel:

That’s right.

There was a — a failure to —

Felix Frankfurter:

Yes.

I. H. Wachtel:

— substitute.

Felix Frankfurter:

Some of us — some of us thought not with the exception of the Court, that really that was a — an accident in the United States, that it’s a (Inaudible) now the ball as you could force into the (Inaudible) of this Court.

I. H. Wachtel:

I — I think it is Your Honor.

I think it is and — and it is for this —

Felix Frankfurter:

(Voice overlap) — there are major issues which are even more important maybe than —

I. H. Wachtel:

I think there is.

Felix Frankfurter:

What is Rule 21?

I. H. Wachtel:

Rule 21, I — I don’t have the precise language.

Felix Frankfurter:

What’s it about?

I. H. Wachtel:

All that Rule 21 provides Mr. Justice Frankfurter is that where the parties have agreed to withdraw an appeal and for whatever reason it may be, settlement, death, any reason at all, it no longer has to go to the Court for an order or a rule, as it is used to be called, dismissing the appeal.

The appeal —

Felix Frankfurter:

But this was — all I know is what I read in your footnote.

This was an agreement and then there was — at the end there, it should go back to the — the clerk of the District Court should be notified.

What is he to be notified about?

I. H. Wachtel:

Of this agreement, a copy of this agreement is —

Felix Frankfurter:

Why did — what does he — what’s his interest in that?

I. H. Wachtel:

I have felt the —

Felix Frankfurter:

I mean, what’s his interest unless, I doesn’t mean to — I meant to suggest, unless if some notification that something is happening to a litigation which up to that time was on the books of the District Court.

I. H. Wachtel:

That’s right.

Felix Frankfurter:

And that’s all that you did in this matter?

I. H. Wachtel:

It — it’s my own view that the case — the purpose ascending this fact was of the District Courts to do what this Court has always suggested and that is, where a case has become moot, dismiss it, so it’s not binding on the party.

William J. Brennan, Jr.:

By which, you mean vacate the action —

I. H. Wachtel:

That’s right.

William J. Brennan, Jr.:

Well, I gather physically the original order is still — is on file in the District Court, stands unvacated.

I. H. Wachtel:

The — the judgment of the District Court stands today as an order of dismissal dismissing all complaints on the merits.

William J. Brennan, Jr.:

Yes.

Charles E. Whittaker:

(Inaudible)

I. H. Wachtel:

Yes, Judge Whittaker?

I would like and I’m quite sure that the Solicitor General didn’t mean to mislead the Court.

But I think that the appendix of the Government’s file should very definitely be misleading.

This appendix was prepared after the War Claims Commission went out of existence.

The statutory appendix purports — sets forth the War Claims Act of 1948 — sets forth the War Claims Act of 1948 as it existed at the time this congressional document was prepared in January of 1956.

The War Claims Act as it existed at the time the petitioner was removed and as it existed as it was at the time it went out of business by virtue of the Legislative Reorganization Act is different.

It is not different from substantially in substance, but it is a different Act and I’m sure that the Solicitor would join with me in suggesting that in studying the War Claims Act of 1948, that the Court (Inaudible) said at the very public law and not the Act as it appears in this Court.

The public law citation does appear in our brief.

Hugo L. Black:

What is the difference?

I. H. Wachtel:

Well —

Hugo L. Black:

I mean, what (Inaudible) are different?

I. H. Wachtel:

The Act as it appears in — in the appendix Mr. Justice Black talks about the Fund Claims Settlement Commission.

It has no reference to the provisions which are the key provisions in this case and that is that he shall be appointed, as term shall expire when Commission’s function shall expire.

I haven’t in the few weeks that we’ve had to prepare this case since the receipt of the Government’s brief.

I. H. Wachtel:

I’ve been able to go over the language word for word, but I’m quite sure that as I say that the Act should be read in its context and in its form as it was when the Commission expired.

Where is your reference in that?

They’re in your brief?

I. H. Wachtel:

In — in my original brief, the citation.

It’s 50 U.S.C. appendix —

In the original brief?

I. H. Wachtel:

Yes, it is, Your Honor.

I would like to just in the few moments left of me to suggest to the Court that the argument made by the Solicitor is the old argument that we’ve heard ever since this country established that the founding fathers might have set up a much more efficient way of running this Government.

Certainly, the impeachment procedure is cumbersome.

Certainly, the procedure of having Congress enact laws and giving the President the right to veto them, there are more efficient ways to adopt laws.

There are more efficient ways to enforce crime, but this is not the issue in this case.

I suggest to the Court that the question is not what is the most expeditious way to remove these people, but what is the best way of keeping the three great departments separate.

Truly, there may be arguments made that — and we hear them from time to time in recent years that some of our judges should be removed or some of our courts should be eliminated that we might perhaps run our Government.

We might uncover subversives and criminals and put the dope addicts in jail with much more dispatch, but that isn’t the question.

I suggest to Your Honor that what we have here is an agency performing legislative and judicial powers, functions, effectuating them.

It doesn’t handle them incidentally the way the Secretary of the Treasury might if Congress delegated it to him.

If the Secretary of Treasury were to exercise one of these functions, this would be incidental to its other functions, but it isn’t the Secretary that makes Section 8 reports.

It isn’t the Secretary that carries out Congress’ function to pay the debts and to create rights and to adjudicate them.

Thank you very much.

Charles E. Whittaker:

May I ask you one question?

I. H. Wachtel:

Yes, Mr. Justice Whittaker.

Charles E. Whittaker:

With reference to this collateral estoppel point, I noticed on page 7 of your reply brief, you say that the stipulation was made to dismiss the appeal.

Then you set forth in the agreement and the agreement says that the cause is to be dismissed.

Do you make any distinction out of that fact?

I. H. Wachtel:

I may make public confession that I say sometimes that’s good for the soul.

Had we been aware, and I think my adversary, Mr. Hickey (ph), had we both been aware of the importance of the Munsingwear case, this stipulation never would have been drawn in its fashion because both Mr. Hickey (ph) and myself knew that this case was going to the Court of Claims.

What we wanted to do is to get this case out of the Court of Claims — out of the Court of Appeals because under 28 U.S.C. 1500, you can’t bring an action in the Court of Claims while there’s another action pending in another Court.

We knew that we could never get a decision out of the Court of Appeals because if we didn’t get rid of the case, the Court of Appeals would have done it on its own motion and we would’ve had to go forward, print up the record, print briefs, and go forward with the whole case.

So, again, I say this is not part of the record and — but that was the intent that the parties go right back to where they were at the beginning.

Felix Frankfurter:

You’ll never going to do it this way again, I’m sure.

I. H. Wachtel:

I’m sure of that Your Honor.[Laughter]

Earl Warren:

General, would you tell me please what the difference is in the position that the Government in this wage cases that Mr. Wachtel told us about in the Court of Claims and this one so far as your collateral estoppel is concerned.

J. Lee Rankin:

All I can relate is what I was told about it when I inquired about the difference between this being a equitable estoppel and the collateral estoppel and res judicata.

And res judicata would dispose of the cause while the equitable or collateral estoppel might very well not dispose of the entire rights.

The problem is that they’re asking for reinstatement in the District Court, as I understand the procedure, I handled those cases.

And that is an independent right that they have under the law whether they later sue for amount of salary or wages during the interim or not and if they’re denied the reinstatement, they might still obtain the payment depending upon the action which is not the same action.

It’s an independent right that is — has been denied them, they claim in the Court of Claims.

So, res judicata would be if it was exactly the same right is being demanded in both Courts then the proof.

I’m advised by Mr. Davis who has worked for this matter that the Court of Claims has held there is no res judicata and we have acquiesced in that position of the Court of Claims.

But there is a difference in regard to collateral estoppel.

And we have tried to make it very clear in this brief that we think that the petitioner is bound by the decision of the Court, the Court, the District Court of the District on this element that there was no limitations on — on the President’s power.

Now, insofar as that is an element in this case, we think that’s decided, but it may not be decisive with the Court if I make that point clearer.

We did call the Court’s attention to it in our opposition as far as a footnote but it wasn’t adequate for the development it made here (Inaudible).