Robert G. THOMPSON, Appellant, v. John S. GLEASON, Jr., Administrator of Veterans Affairs, Appellee.
No. 16014.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 2, 1961. Decided July 12, 1962.
317 F.2d 901
“It is our understanding that the Commission contemplates consideration of other applications for the station, if any are offered, when the matter of a full-term license comes before it, and it will then follow whatever proceedings are appropriate under the circumstances at that time. Its decision then will of course be subject to review here upon appeal.” 2
By an order dated October 18, 1961, the Commission entered its final order, effective November 20, 1961, pursuant to which Public Service Television, Inc., ceased operation on Channel 10.
Subsequently, on February 17, 1962, the Commission issued an order directing L. B. Wilson, Inc., to file an application for the renewal of its license, and further providing that Channel 10 in Miami, Florida, be available for the filing of applications for construction permits for new television broadcast stations, “Commission Rules to the contrary, if any, notwithstanding.” Public Service Television, Inc., tendered an application for a construction permit for Channel 10 in Miami. The Commission returned the application as unacceptable for filing. In its notification to the applicant it called attention to its conclusion in the prior proceeding, to the effect that this applicant lacked the “qualifications to operate the station sought in this application.” It also called attention to its Rule 1.309(a). The Commission said that it appeared the application was repetitious within the meaning of that Rule. The purport of this court‘s opinion 3 was that by its efforts to influence corruptly an official charged with the duty of deciding contested issues upon an open record Public Service Television, Inc., had demonstrated that it lacked the requisite character qualifications and therefore the order of the Commission rejecting it as an applicant for that license was well within its authority. The license presently sought is for the same channel in the same place. What the Commission concluded in that case respecting this applicant for that license applies equally here. The court finds no error.
It follows that the motion of Public Service Television, Inc., to reverse the action of the Commission will be denied; the Commission‘s motion to affirm its action will be granted; and appellant‘s motion for a stay will be dismissed as moot. It will be
So ordered.
Mrs. Mary M. Kaufman, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for appellant.
Mr. Robert L. Keuch, Atty., Dept. of Justice, with whom Messrs. Kevin T. Maroney and George B. Searls, Attys., Dept. of Justice, were on the brief, for appellee.
Before Mr. Justice BURTON, retired,* PRETTYMAN, Senior Circuit Judge, and BAZELON, Circuit Judge.
* Sitting by designation pursuant to
This is an appeal from a judgment 1 rendered by the District Court in a suit for declaratory judgment and injunctive relief brought by our appellant Thompson against one Whittier, then Administrator of Veterans Affairs.2
Perhaps we had best analyze the case into its constituent elements:
The person involved (Thompson) is an honorably discharged veteran of World War II. He served some two years in the armed forces, with such distinction as to receive the Distinguished Service Cross for heroism under fire in combat and to be recommended for a battlefield commission as a Captain.
The subject matter involved consists of benefits awarded him for disability (pulmonary tuberculosis) incurred in the service.
The action complained of was the discontinuance of those benefits.
The official taking this action was the Administrator of Veterans Affairs, acting pursuant to decisions of the Central Committee on Waivers and Forfeitures and the Board of Veterans Appeals, both subordinate tribunals in the Veterans Administration.
The authority claimed for the action taken was Public Law 144, 78th Congress, 1st Session, Section 4 of which 3 provided in pertinent part:
“Any person shown by evidence satisfactory to the Administrator of Veterans’ Affairs to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future benefits under laws administered by the Veterans’ Administration pertaining to gratuities for veterans and their dependents: * * *”
The ground for the action was that Thompson had rendered assistance to an enemy of the United States, within the meaning of the quoted statute.
The facts upon which the foregoing conclusion was reached were in two parts, one part stipulated and the other part derived from the testimony of witnesses and from records. Summarized, the facts as found by the Board were: Thompson had been a member of the Communist Party since 1933; attended courses in Marxism and Leninism in Moscow in 1935 and 1936; held various state and national offices in the Communist Party in the United States; wrote a column for The Daily Worker; was tried and convicted in October, 1949, under the Smith Act, and the Supreme Court affirmed in June, 1951;4 refused to appear for sentencing and became for a while a fugitive; and was apprehended in August, 1953, and charged and convicted of contempt of court and sentenced. The Board also found that, while on bail, and beginning with the commencement of the Korean conflict in June, 1950, Thompson made speeches and wrote articles in which he made such statements as “Mass action NOW can still halt a Police State” and “American imperialism is hiding behind the skirts of the Negro G.I. in Korea“; demanded “withdrawal of the United States Troops from Korea“; urged “defeat of the McCarran Bill“; advocated “if the bill passed, it should be rendered ineffective by not registering under its provisions“; criticized “the gigantic armament program and its cost“; asserted
The position of the Administrator was that Thompson‘s speeches and articles after June, 1950, were a continuation of his activities prior to his conviction in October, 1949, and took character from those activities; that these speeches and articles constituted “rendering assistance to an enemy of the United States“.
The reasoning of the Administrator is indicated by the following extracts from the opinion and decision of the Board of Veterans Appeals:
“In other words ‘rendering assistance to an enemy of the United States’ may consist of acts which are intentionally committed by a person with the understanding that such acts will result in a weakening of our effort against the enemy but which are not necessarily accompanied by the specific intent to transfer allegiance from the United States to the enemy.
* * * * * *
“The enemy assistance of which the veteran is charged involves acts subsequent to June 27, 1950. We are not concerned with the question of whether, by means of such acts, the veteran intended to betray his country and was guilty of treason or of whether he entered into a conspiracy of any sort in connection therewith; the question is whether the acts were done intentionally rather than through negligence or without realization as to the consequences of his acts and whether the natural tendency and probable effect thereof would reasonably be expected to benefit the enemy. It is not necessary to establish that the enemy actually derived any particular benefit from the acts committed if, viewed in the light of the attending circumstances, including an evaluation of the facts bearing upon the question of whether the person was in a position to particularly influence others, it is reasonable to conclude that the acts would naturally tend to be of assistance to the enemy.
* * * * * * * * *
the Board concludes that the evidence establishes beyond a reasonable doubt that during the Korean Conflict he made public ut-
* * * * * * * * *”
The principal questions which we must decide are: (1) Did the phrase “rendering assistance to an enemy of the United States” in Public Law 144 (frequently called “the forfeiture statute“) include such activities as the speeches made and articles written by Thompson during the time of the Korean conflict? (2) If the answer to (1) is “yes“, is the statute valid?
The Department of Justice represents the Administrator upon this appeal. In its brief it suggests three possible constructions of the disputed statutory phrase: (a) that the phrase was a reference solely to the offense “aids, or attempts to aid, the enemy“, made punishable by Article 104 of the Punitive Articles of the Uniform Code of Military Justice;5 (b) that Congress in effect left to the Administrator the power to determine what conduct amounted to “rendering assistance to an enemy“; (c) that the phrase includes all offenses defined as crimes by a statute, which can be committed in time of war and which render assistance to the enemy, and so includes the offense defined in
Appellant urges construction (a). The Administrator adopted construction (b). The Department of Justice supports construction (c).
The view of appellant (construction (a)), that the disputed phrase includes only offenses described in Article 104 of the Uniform Code, seems to us to be too narrow. That Article provides, in pertinent part:
“Any person who-
“(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or
“(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; * * *”
Appellant says that this definition of “aiding the enemy” is patently the one contemplated by Congress in the phrase “rendering assistance to an enemy“. This obviously cannot be so, since in 1943, when the latter phrase appeared in the statute, the language now in Article 104 was not in the statute, first appearing there in 1950. The Article (81) which was in the law in 1943 spoke of “Whosoever relieves or attempts to relieve the enemy“.
Besides that point, appellant‘s argument in effect is that Congress picked one Article of War out of many and, without so saying, meant for that one Article to represent the full scope of rendering assistance to an enemy. We are shown, and we can find, no affirmative indication of such an intention on the part of Congress. Whether we view the argument as directed to Article 104, as appellant expresses his argument, or to the predecessor Article 81 which was in the statute in 1943 when the forfeiture statute was enacted, makes no difference. Both Articles carefully specify the sort of assistance they declare to be a crime-aiding with things and harboring, giving intelligence to, or corresponding with an enemy. But obviously there are other means of rendering assistance to an enemy. Such are conveying false reports, causing refusal of duty, obstructing enlistment, and other similar activity; the present Section 3505(b), of Title 38, United States Code, contains a long list of “subversive activities“. Appellant‘s argument is not persuasive to us on this point. And, in our judgment, this construction is a strained view from the standpoint of common sense.
It seems to us that the construction of the statute adopted by the Administrator (construction (b)) poses serious
Appellant also argues that the forfeiture statute is invalid because it is so vague as to violate the due process clause. The statute contains no definitions of the term “rendering assistance to an enemy“, and the legislative history supplies none. Neither provides standards by which to measure the meaning of the phrase. The doctrine that vagueness may invalidate a statute is well established in respect to criminal cases. The only cases cited to us by appellant are criminal cases. But the case at bar is not a criminal case. It concerns the forfeiture of benefits, which fall within the legal principles respecting gratuities.9 So the problem here is whether the statute authorizing administrative forfeitures of benefits must, as a matter of due process, contain standards of reasonable certainty. We are referred to no authority on this point, and, in view of other features of the case, we do not now attempt to research or decide it. It appeals to us as a properly debatable question, because the benefit was a monetary one (i. e., not an intangible), it had been actually and validly granted (was, in other words, actually in existence), and it was pursuant to a Congressional intent of high purpose and design. Of course the Congress itself could cancel it-could repeal the whole statute, in fact. But whether Congress could validly give an executive official blanket power to cancel his own act, without laying down reasonable standards to guide him in the exercise of that power, is another and different question. We do not decide it; we merely note it.
The view of the Department of Justice is that “rendering assistance to an enemy” for the purposes of the forfeiture statute means any act defined by Congress as a crime and which does indeed render assistance to an enemy. Section 2388, of Title 18, United States Code, provides in pertinent part:
“(a) Whoever, when the United States is at war, willfully makes or conveys false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies; or
“Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service
The Department urges that the acts thus defined as crimes fall within the general phrase “rendering assistance to an enemy“. Such acts are definite, not vague, and are criminal. This construction avoids serious questions of constitutional validity. This is a desirable feature. It incorporates into the general expression no undefined specifics; each included item is somewhere defined with the precision necessary to a criminal statute. This also is a desirable feature. Moreover, although we find no direct statement by Congress, its committees, or its members that this phrase was intended to include only defined criminal acts, the whole purport of the discussions prior and subsequent to the life of this statute was to that effect.10 Over and over again, in discussions of the forfeiture of benefits, reference was made to “offenses” or “guilty“. An unspoken premise would appear to have been that “rendering assistance to an enemy” meant some act which was deemed to be a crime. We think this construction should be adopted and applied.
We think that the determination whether Thompson‘s speeches and writings fell within any statutory proscription of an act as criminal, and whether they did in fact render assistance to an enemy within the meaning of the forfeiture statute, should first be made by the Administrator. For that purpose we remand the case to give him that opportunity, as we did in Wellman v. Whittier.11
Two more points must be mentioned. Appellee says the court has no jurisdiction, because the Tucker Act 12 and the veterans laws 13 deny jurisdiction to review action on claims for benefits. We treated the argument, and rejected it, in Wellman. We there held that a forfeiture of benefits is not, and does not create, a claim to benefits or a claim to pensions within the meaning of those statutes. The other point is one made by appellant, who says the forfeiture statute is invalid as a bill of attainder, being penal, imposing punishment. We think the argument is answered in the negative by Flemming v. Nestor 14 and the cases there cited.
The judgment will be reversed and the case remanded to the District Court, with instructions to remand to the Administrator for further proceedings in accordance with this opinion.
So ordered.
BAZELON, Circuit Judge (concurring in part and dissenting in part).
I agree that the administrator‘s determination rests upon an erroneous construction of the statute. But I dissent from the action of the court remanding the case to afford him an opportunity to make another determination. The administrator may institute new proceedings, if so advised. But unless and until he lawfully terminates appellant‘s benefits in such new proceedings, appellant is entitled to those benefits. See my dissent in Wellman v. Whittier, 104 U.S.App.D.C. 6, 12, 259 F.2d 163, 169 (1958).