142 F. Supp. 910 | Ct. Cl. | 1956
Lead Opinion
delivered the opinion of the court:
On June 8,1950, the plaintiff was appointed a member of the War Claims Commission, to serve during the life of the Commission, which was to expire not later than March 31, 1955. On December 10, 1953, the plaintiff was removed by the President, and another person was appointed in his stead.' The plaintiff alleges the President had no authority to remove him, and that he was at all times ready, willing, and able to perform the duties of his office. He sues for the salary he would have earned had he not been removed.
The President’s power to remove has been considered by the Supreme Court in two fairly recent leading cases. In Myers v. United States, 272 U. S. 52, that court set forth the doctrine that the President has the inherent power to dis-cretionarily remove an official or officer appointed by him and confirmed by the Senate, even though the appointment is for a fixed term, and even though the act creating the office provided for removal for stated causes. However, in Humphrey's Executor v. United States, 295 U. S. 602, the court, after limiting the broad scope of the Myers case to purely executive officers, held that the President may not at his discretion remove an official who is a member of a quasi-legislative or quasi-judicial agency, when the act creating the agency fixes a definite term of office and provides for removal for stated causes.
Hence, the first question we must consider is whether the War Claims Commission was a part of the executive branch of the Government. If this question is answered in the affirmative, then under the doctrine of the Myers case, there can be no doubt that the President had the power to dis-cretionarily remove the plaintiff. If, on the other hand, it is determined that the War Claims Commission acted in a quasi-legislative or quasi-judicial capacity, the court must then determine whether the present case falls within the scope of the Humphrey decision.
Did the War Claims Commission exercise power predominantly legislative or judicial in character, or was it a part of the executive branch of the Government? If the latter, the President clearly had the power of removal.
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by, or on behalf of, any civilian American citizen for detention benefits for any period of time subsequent to December 6, 1941, during which he was held by the Imperial Japanese Government as a prisoner, internee, hostage, or in any other capacity, or remained in hiding to avoid being captured or interned by such Imperial Japanese Government.
Section 6 (b) of the Act provided for the adjudication of claims of prisoners of war. It reads:
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any prisoner of war for compensation for the violation by the enemy government by which he was held as a prisoner of war, or its agents, of its obligation 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 27, 1929. The compensation allowed to any prisoner of war under the provisions of this subsection shall be at the rate of $1 for each day he was held as a prisoner of war on which the enemy government or its agents failed to furnish him such quantity or quality of food. * * *
Section 7 provided for the adjudication of claims by religious organizations. It reads:
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any religious organization functioning in the Philippine Islands and affiliated with a religious organization in the United States, or by the personnel of any such Philippine organization, for reimbursement of expenditures incurred, or for payment of the fair value of supplies used, by such organization or such personnel for the purpose of furnishing shelter, food, clothing, hospitalization, medicines and medical services, and other relief in the Philippines to members of the armed forces of the United States or to civilian American citizens (as defined in section 5) [section 2004*830 of 50 USC Appendix] at any time subsequent to December 6,1941, and before August 15,1945. * * *
Section 11 gave the claimant the right to a hearing of his claim and made the decision of the Commission “final and conclusive on all questions of law and fact and not subject to review by any other official of the United States or by any court by mandamus or otherwise * * (Italics supplied.)
By Section 2 (d) (64 Stat. 449) the Commission was given the power to issue subpoenas and to administer oaths to witnesses.
All of the foregoing are powers such as are vested in courts of justice. In the performance of such duties the Commission was acting in a quasi-judicial capacity; or, perhaps, as an agent of Congress in discharge of the congressional obligation “to pay the Debts of the United States.” Certainly in so doing it was not performing an executive function.
It is true that such powers are from time to time conferred on executive agencies, and the exercise of such powers does not make such agencies a part of the judicial branch of the Government. This is because the function of such agencies is primarily executive, and the performance of duties judicial in nature is incidental or ancillary to the discharge of their executive duties. But the War Claims Commission was clothed with no executive powers. The powers conferred on it, to which we have heretofore referred, were wholly judicial, or, perhaps, legislative in character.
Other duties were also put upon the Commission, but they were not of an executive but of a legislative nature.
The claims provided for in the foregoing sections consisted of claims of civilian internees, prisoners of war, or of religious bodies. They were to be paid out of a War Claims Fund, made up of the proceeds of enemy property seized by the Alien Property Custodian. It was recognized that there were many other classes of claims, but no provision was made for their payment. However, in section 8 the Commission was directed to make a survey of these other claims and to report to Congress: (1) on the number and amount of them, classified by types and categories, and (2) the extent to which they might be settled by international agreement. The Commission was also directed to recommend (1) the
The fact that this report was to be submitted to the President is of no significance. It was to be submitted to him “for submission of such report to the Congress.” The President was not requested to comment on the report; his sole function was to transmit it. He was no more than the depository designated to receive the report and to transmit it to the Congress. Presumably it was to be submitted to him only to take care of the eventuality that Congress might have adjourned sine die at the time the Commission was ready to report.
Under section 9, the Commission was directed to make a report of its operations to the Congress. These reports were to cover the discharge of all the duties cast upon it, to wit, the adjudication of claims, and the survey of other claims the adjudication of which was not provided for, preliminary to a recommendation for their disposition, and such recommendation.
Nowhere in the act is there cast upon the Commission the discharge of any executive function. All its functions were of a nature either judicial or legislative.
We must next determine whether the removal of a member of such a commission is within the scope of the Humphrey decision.
The Federal Trade Commission Act, which was involved in the Humphrey case, provided that each commissioner appointed to the Federal Trade Commission by the President should continue in office for a definite number of years, but that any commissioner could “be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” The President requested Humphrey to resign from his position as commissioner and, when Humphrey refused to do so,_
From the following language which appears at the conclusion of the Humphrey opinion, 295 U. S. at 632, it appears that the Supreme Court intended to limit the scope of the Humphrey decision to the precise situation then before it:
To the extent that, between the decision in the Myers case, which sustains the unrestrictable power of the President to remove, purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.
The Constitution is silent as to the power of the President to remove officials appointed by him. The voluminous opinions in the Myers case, and in the Humphrey case, give the details of the executive and congressional action, and the decisions of the courts, on this question, throughout our history. The Humphrey decision showed that there had been a change in the attitude of the Supreme Court since the Myers decision. The case which we have to decide is different from both Myers and Humphrey. It resembles Humphrey in that the functions of the plaintiff’s office were not executive, but quasi-judicial and quasi-legislative. But it differs from Humphrey in the important respect that Congress, in creating the War Claims Commission, did not place any limitation upon the President’s power of removal.
If we pass over earlier periods in our history, including ■ the period of conflict between Congress and President Johnson, and limit ourselves to relatively recent history, we find
In the Act of June 29, 1936, creating the United States Maritime Commission, 49 Stat. 1985, 46 U. S. C. 1111 (a), Congress said “Any member may be removed by the President for neglect of duty or malfeasance in office.” The Act of June 23, 1938, 52 Stat. 980, 49 U. S. C. 421, creating the Civil Aeronautics Board, used similar language as did also the Act of August 1, 1946, 60 Stat. 756, 42 U. S. C. 1802 (a) (2) creating the Atomic Energy Commission.
The Indian Claims Commission Act of August 13, 1946, 60 Stat. 1050, 25 U. S. C. 70b (b) provided that the members of the Commission should hold office during good behavior until the dissolution of the Commission, as therein-after provided, and could “be removed by the President for cause after notice and opportunity to be heard.”
The Act of September 23, 1950, 64 Stat. 997, 50 U. S. C. 791 (a) creating the Subversive Activities Control Board again used the careful language, including the words, “but for no other cause” used in the earlier acts creating the office of the Comptroller General, the National Mediation Board, and the National Labor Relations Board.
It seems to us that Congress, having used various forms of language in earlier and later important statutes, might have been expected to use some form of expression indicating its intent, whenever it intended to limit the President’s power. But in the statute creating the War Claims Com
Taking the case in its aspect most favorable to the plaintiff, we have an officer appointed to perform quasi-judicial and quasi-legislative functions, and for a term certain or which can be made certain. If the President had not the unlimited power to remove him, he could not be removed at all except by impeachment, since the statute stated no limited grounds upon which the President might remove him. We do not think that Congress had any such intent. To impose upon itself the obligation to resort to the cumbersome, time-consuming and rarely used method of impeachment would be a serious step indeed. If Congress had intended that the President should not have the unlimited power of removal, it would most certainly have provided him with a limited power which would relieve Congress of the intolerable burden of an impeachment proceeding. Even in the case of Federal judges, constitutionally assured of tenure during good behavior, there is a recurring search in Congress for the discovery of some method which might be permitted by the Constitution, of removing them for cause without the uncertain and harrowing experience of an impeachment proceeding.
Furthermore, we do not think that the asserted certain term of office, which is all that the plaintiff can find in the statute to rely on, shows an intent that the appointee should be irremovable. In its context, it seems to us to say that the Commission, from the time of its creation, must plan its work so that it will not have unfinished business when the expiration date occurs, because Congress does not intend to extend its life. The language seems to us to have been used, not to protect the members of the Commission in their tenure, but to protect the Treasury and the public against the perpetuation of an agency which was meant to be temporary.
To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. * * * The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away.
The Supreme Court found in the Humphrey case a Congressional intent, shown by the statutory language and the legislative history, to limit the President’s power. That decision no doubt tempered the strict doctrine stated in the Shurtleff case. But it did not discard it to the extent that a court should conclude that the President’s power had been abrogated even though there was no evidence at all, or substantially no evidence, that Congress so intended. There is no evidence whatever of any such intent in relation to the statute under construction in the instant case.
Plaintiff’s petition is dismissed.
It is so ordered.
Dissenting Opinion
dissenting:
The italicized part of the following quotation from the majority opinion points up the difference between my view and theirs:
The case which we have to decide is different from both Myers and Humphrey. It resembles Humphrey in that the functions of the plaintiff’s office were not executive, but quasi-judicial and quasi-legislative. But it differs from Humphrey in the important respect that Congress, in creating the War Claims Commission, did not place any limitation upon the President's power of removal.
The majority says that the President had the power to remove members of the War Claims Commission because
I think tMs is the principle underlying the Humphrey decision. In that decision the Supreme Court said that the President could not remove a member of the Federal Trade Commission except for such cause as was specified by Congress, but in the Myers decision they had said that the President’s power to remove a person in the executive department could not be limited by Congress. In other words, as to an executive officer, the power of removal is inherent in the office of President, but as to a quasi-legislative officer, there is no such inherent power, and, hence, the President possesses only such power as Congress confers on him.
There is no other way to harmonize the Myers and Humphrey decisions.
Such a distinction is compelled, I tMnk, by the constitutional concept of the separation of powers between the executive and the legislative and judicial branches of the Government. The Constitution intended that each should be supreme in its own field, subject only to those checks and balances specifically set forth in the Constitution. If the President has the inherent power to remove a member of a body created by Congress to perform a legislative function, then Congress is not supreme in its own field, but is subordinate to the supreme executive power. Likewise, if he has the inherent power to remove a member of a body created to perform a quasi-judicial function, then the judicial branch is not independent, but is subordinate to the will of the executive.
Since the War Claims Commission was a part of the judicial or legislative branch of the Government, or both, the President had no power to remove the members of that Commission unless the power to do so was conferred on him by Congress. The majority does not say Congress conferred the power; it says they failed to withhold it. I say, since
FINDINGS OF FACT
The court having considered the evidence, the report of Commissioner George H. Foster, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiff is a citizen of the United States and is now a resident of the District of Columbia. He is a lawyer who has been admitted to practice law in the highest courts of the States of California and New York, of the District of Columbia, and the United States Court of Claims.
2. On July 3,1948, P. L. 896 was enacted (62 Stat. 1240). This act was known as the War Claims Act of 1948. It provided in part as follows:
Sec. 2 (a). There is hereby established a commission to be known as the War Claims Commission (hereinafter referred to as the “Commission”) and to be composed of three persons to be appointed by the President, by and with the advice and consent of the Senate. At least two of the members of the Commission shall be persons who have been admitted to the bar of the highest court of any State, territory, or the District of Columbia. The members of the Commission shall receive compensation at the rate of $12,000 a year. The terms of office of the members of the Commission shall expire at the time fixed in subsection (d) for the winding up of the affairs of the Commission.
«* ‡ * *
(c) The Commission may prescribe such rules and regulations as may be necessary to enable it to carry out its functions, and may delegate functions to any member, officer, or employee of the Commission. The Commission shall give public notice of the time when, and the limit of time within which, claims may be filed, which notice shall be published in the Federal Register. The limit of time within which claims may be filed with the Commission shall in no event be later than two years after the date of enactment of this Act.1
(d) The Commission shall wind up its affairs at the earliest practicable time after the expiration of the time*838 for filing claims, but in no event later than three years after the expiration of such time.
Sections 5,6,7,8, and 9 of the act related to the duties of the Commission.
3. On June 8, 1950, Harry S. Truman, President of the United States, with the advice and consent of the Senate of the United States, appointed the plaintiff as a member of the War Claims Commission and authorized and empowered him to execute and fulfill the duties of that office according to law and to have and to hold the said office with all the powers, privileges and emoluments therein of right appertaining subject to the conditions prescribed by law.
On the same date, plaintiff took the oath of office and entered upon his duties as a member of the Commission.
4. On December 10, 1953, at a time when there was one vacancy in the membership of the Commission, the plaintiff received a letter from Dwight D. Eisenhower, President of the United States, reading as follows:
I regard it as in the national interest to complete the administration of the War Claims Act of 1948, as amended, with personnel of my own selection. _ To that end, Mr. C. F. Willis, Jr., of my staff transmitted my wish that you and your associate resign your commissions. I understand from Mr. Willis that you are unwilling to do so.
Accordingly, effective as of December 11, 1953, you are hereby removed from the office of Member of the War Claims Commission.
5. On December 11,1953, while the Congress was in recess, the President appointed Eaymond T. Armbruster, Whitney Gillilland, and Mrs. Pearl Carter Pace, members of the War Claims Commission during the pleasure of the President, for the time being and until the end of the next succeeding session of the Senate and no longer.
6. On December 14, 1953, the plaintiff notified the President in writing that he, the President, lacked the legal or constitutional authority to remove the plaintiff on the grounds set forth in the letter of December 10, 1953, and objected to the action of the President and advised him that the plaintiff holds himself available and ready to perform the duties of his office,
8. On July 1,1954, Reorganization Plan No. 1 of 1954, 68 Stat. 1279, became effective, by virtue of which the War Claims Commission, including the offices of the members of said Commission, was abolished and all functions of the War Claims Commission and of the members, officers, and employees thereof, were transferred to the Foreign Claims Settlement Commission of the United States.
9. The plaintiff continued to hold himself ready and available to perform the duties as a member of the War Claims Commission up to and including June 30,1954, but as a result of the actions of the President, he was prevented from performing the duties of a member of the Commission from December 11,1953, to June 30, 1964.
10. Plaintiff was on December 10,1953, receiving compensation as a member of the War Claims Commission at the rate of $14,800 per annum. If plaintiff had performed the duties of the office as a member of the War Claims Commission from December 11,1953, to and including June 30,1954, he would have been entitled for that period to receive from the United States compensation in the amount of $8,197.06. On December 11, 1953, plaintiff was paid by the defendant the amount of $3,309.41 as a lump-sum payment for accrued annual leave. This was payment for 428 hours of accumulated annual leave. The record does not disclose the amount of leave taken by plaintiff.
11. On February 3, 1954, there was filed, in the United States District Court for the District of Columbia, Civil Action No. 447-54, captioned United States of America, on relation of Myron Wiener, petitioner, vs. Raymond T. Armbruster, Whitney Gillilland, Pearl Carter Pace, respondents, in which the petitioner applied for a writ in the nature of quo warranto, alleging that his removal by the President was in violation and in contravention of law, and exceeded his
12. Plaintiff was engaged in the practice of law in Shanghai, China, from 1931 to 1941. He left Shanghai on November 27,1941, en route to the United States and arrived in Manila on December 2,1941, where he was later interned by the J apanese on J anuary 1,1942.
13. In the summer of 1943, plaintiff was given an opportunity to be repatriated by an exchange of prisoners between the Japanese and the United States Governments. Having elected to be repatriated, plaintiff was transported by the J apanese from the Philippines to Goa, a Portuguese colony on the west coast of India, south of Bombay. At Mormugao, a port city in the colony of Goa, the Americans were exchanged for Japanese who had been transported from the United States aboard the Gripshobn, a Swedish ship chartered by the War Shipping Administration on behalf of the Department of State, for the purpose of repatriation of American citizens. Upon boarding the Gripshobn, plaintiff was informed that he would be expected to pay for his passage and certain documents were presented to him, including a promissory note representing the estimated cost of passage from Goa to the United States. Plaintiff protested on the grounds that he had not been previously informed that he would be obliged to pay for the passage, and secondly, that the quarters assigned him were not those normally regarded
14. The promissory note signed by plaintiff at Mormugao, Portuguese India, on October 18,1943, for his passage to the United States was in the amount of $575. Since plaintiff was not then in possession of any money, a cash advance in the amount of $50 was made to him aboard the Gripsholm on October 22,1943, for which plaintiff signed another promissory note. The advance enabled plaintiff to buy necessary supplies at the ship’s canteen. On November 3, 1943, when the Gripsholm was at Port Elizabeth, South Africa, plaintiff was advanced an additional sum of five pounds in South African currency to enable him to secure a blood test which he needed at that time. Plaintiff signed a promissory note for five pounds, South African currency, which was the equivalent of $20.18 in United States dollars at the then rate of exchange. On November 15, 1943, at Rio de Janeiro, plaintiff was advanced the further sum of $15 for which he signed a promissory note. The promissory note signed by plaintiff for his passage contains the following statements:
I have received today from the Special Disbursing Officer of the Department of State on the M. S. GRIPSHOLM, Mormugao, Portuguese India, Ticket No. 16859 of a value of U. S. Dollars $575.00 for passage aboard M. S. GRIPSHOLM from Mormugao to New York, which I hereby promise to repay without interest to the Treasurer of the United States upon demand in legal tender of the United States.
I understand that my obligation to repay the sum here-inabove stated will not be discharged until the Treasurer of the United States actually receives in legal tender of the United States full repayment of that sum.
The other promissory notes signed by plaintiff contain language substantially the same except for the amounts.
15. The charge to plaintiff for this passage aboard the Gripsholm from Mormugao to New York was subsequently reduced from $575 to $548.85. The original figure was an estimate and the final charge was computed, on completion of the voyage, by prorating equally among all passengers the
16. Plaintiff was informed by letter dated May 9,1944, from its assistant chief, Accounts Branch, Division of Budget and Finance, that the State Department held for collection promissory notes executed by the plaintiff in connection with his repatriation to the United States in the total amount of $634.03, that in accordance with the terms of the notes, a check or money order drawn payable to the order of the Secretary of State should be forwarded at the earliest possible date, and that upon receipt of payment the promissory notes would be cancelled and forwarded to plaintiff. This letter was sent to plaintiff at 3710 Fillmore Street, San Francisco, California, the address given by plaintiff upon his repatriation, such address appearing on each note as plaintiff’s permanent address in the United States. A second request for the payment was made upon plaintiff by the Department of State by Statement No. 13478, dated October 8, 1948.
17. Plaintiff has not paid the sum of $634.03 to the defendant.
CONCLUSION OK LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and his petition is dismissed.
On defendant’s motion to amend the judgment it was ordered on October 2, 1956, that judgment be entered for defendant on its counterclaim for the sum of $634.03, together with interest thereon at the rate of 4 percent per annum from February 9,1955, until date of payment.
By Joint Resolution of April 5, 1951 (65 Stat. 28) tile date of March 81, 1952, was fixed as the final date for filing claims.
