# Schilling v. Rogers/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
363 U.S. 666
Walter SCHILLING, Petitioner, v. William P. ROGERS, Attorney General.
Argued: Feb. 29 and March 1, 1960. --- Decided: June 20, 1960
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.
This Court has gone far towards establishing the proposition that preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90. Generalizations are dangerous, but with some safety one can say that judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. To be sure, a clear command of the statute will preclude review; and such a command of the statute may be inferred from its purpose, though Leedom v. Kyne, supra, where I thought nonreviewability proved from the congressional purpose, shows that the Court is far from quick to draw such a conclusion. I cannot agree that the statute here gives any clear direction that this administrative determination that as a matter of law petitioner was ineligible for the exercise of discretionary relief under § 32(a) should not be reviewable by the courts. Questions as to the scope of that review, of course, are not now before us; simply whether the power exists at all.
Section 7(c) of the Act states that the Act's remedies shall be '(t)he sole relief and remedy' of claimants of vested property, and, to be sure, this language is 'all-inclusive,' Becker Steel Co. of America v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 80 L.Ed. 54. Let us, then, take a close and fully-focused look at what those remedies include, and compare them with what petitioner seeks.
Section 9(a) of the Act, under which petitioner of course makes no claim, provides a judicial remedy for those who are not enemies and not allies of enemies; they may sue in equity for the return of their property. Section 9(c) gives the same remedy to certain classes of enemies. But it is apparent from both these provisions that they contemplate an independent judicial remedy-a suit to return property; not an action to review certain determinations of administrative officers. There is not even a provision that application must be made for administrative relief before suit is brought. There simply is a requirement for the filing of a notice of claim, which the statute clearly distinguishes from making an application for an administrative return, the latter being optional. Draeger Shipping Co. v. Crowley, D.C., 49 F.Supp. 215; Duisberg v. Crowley, D.C., 54 F.Supp. 365. See Stoehr v. Wallace, 255 U.S. 239, 246, 41 S.Ct. 293, 296, 65 L.Ed. 604. Even where the applicant chooses to seek an administrative return, suit may be instituted before the administrative action is completed. The administrative remedy and the judicial remedy are each completely independent of the other; Congress has made this clear even to the extent of putting an 'and/or' on the statute books. In no sense, then, can the independent judicial remedy of § 9 be said to be a judicial review of administrative action. It is independent of any administrative action's being taken. It requires the courts to make a plenary, de novo adjudication of all the controverted issues as they would in any lawsuit between citizens.
Section 32(a), under which petitioner has applied for relief, on the other hand provides simply for an administrative remedy. That it does, of course, under § 7(c) precludes the inference of any independent judicial remedy such as § 9 provides. But there is no reason why it should preclude the inference that administrative action taken under it should be subject to judicial review. The courts have developed many principles defining and limiting the quantum of judicial review that may be afforded administrative adjudication. This generally narrow character of judicial review, in contrast to an independent lawsuit directed at the same end as an administrative adjudication, points up the distinction between the independent action under § 9 and what is contended for here. In the latter, the courts cannot order the return of the property. They simply may say that the administrator cannot stand on the ground he gave for not returning it. See Greene v. McElroy, 360 U.S. 474, 510, 79 S.Ct. 1400, 1421, 3 L.Ed.2d 1377 (concurring opinion). The former is clearly precluded, but the latter hardly is. The approach to interpretation that cases like Kyne, Harmon and Stark symbolize should indicate that judicial review of the administrative action under § 32(a) is available. Section 7(c) is by no means offended by this since this construction recognizes that the sole remedy under § 32(a) is administrative in nature, but attaches to that administrative remedy the general attribute of administrative remedies in our system-judicial review.
The Court points to the legislative history of § 32(a) as indicating a contrary conclusion. It says that a judicial remedy was originally provided for in early versions of the bill which added § 32(a) to the statute, but that the final enactment omitted it. This would be very relevant if what had been originally contained in the bill had been a provision for judicial review of action taken under § 32(a), such as what petitioner now contends is implicit. But it was not; it was rather a provision for an independent judicial remedy, patterned entirely in the style of § 9. That it was omitted of course adds another proof that there can be no independent judicial action to get a return under § 32(a); but it does not tell us that normal judicial review into administrative action under § 32(a) is to be foreclosed. Mr. Markham's remarks, quoted by the Court, are of course explicable on the ground that there was no counterpart of § 9's provision for an independent lawsuit in § 32(a). In fact, they were spoken in response to a question whether 'the individual whose property has been taken or affected can appeal to the courts of the land to have his equity determined.' Hearing before Subcommittee No. 1, Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., p. 13. The question is a good description of the functions of courts under § 9. It does not describe the functions of courts exercising a review function of administrative action under § 32(a). The subsequent legislation which the Court mentions as having failed of passage, S. 2544, 82d Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess., was not legislation to provide judicial review, but to afford an independent judicial remedy similar to § 9. Thus it is apparent that the alternative that was presented to Congress and rejected clearly enough was not ordinary judicial review of determinations under § 32(a), but independent judicial action of a sort comparable to § 9's.
The Court does not demonstrate any policy on which Congress may have been acting and from which it might be inferred that judicial review was impliedly precluded under § 32. Congress clearly precluded independent lawsuits, but there is no demonstration that it acted in pursuance of any purpose which would be broad enough impliedly to negate judicial review of administrative action as well. So there is no reason why the general principle should not apply: 'Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers.' Harmon v. Brucker, supra, 355 U.S. at pages 581 582, 78 S.Ct. at page 435.
There is then clearly established jurisdiction to review under the general principles which find expression in § 10 of the Administrative Procedure Act; the statute does not 'preclude judicial review.' 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009. But the Court also holds that, within the meaning of § 10, 'agency action is by law committed to agency discretion.' Since want of jurisdiction in the District Court is found, I take it the Court holds that the question, review of which is now sought, which is an issue of statutory construction, is totally and exclusively for the administrative officers to determine-not simply that the courts are to give their determination of this question of law considerable weight. Cf. National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170; Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 332, 86 L.Ed. 301. Once it is established that the statute does not preclude judicial review, this conclusion seems to me untenable. The issue is a question of law; the construction of a detailed and moderately specified standard. It is not like the ultimate determination that the return be 'in the interest of the United States,' § 32(a)(5), which is clearly where the ultimate reservoir of discretion lies under § 32(a). This determination was never reached. We need not speculate about the breadth of judicial inquiry in judicial review where the administrative decision not to return the property is based on that ground, or is based on one of the other grounds under the statute. The quantum of review can be adjusted to the problem before the courts. Here the determination not to return was based on a holding that petitioner did not come within the first proviso to § 32(a)(2)(D). The proviso's terms were viewed administratively not as guides to an administrative discretion but as legal standards. Under commonplace principles, the determination must stand or fall on that basis. It may be that the novelty of the standards of that proviso (see Subcommittee Hearings, Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., p. 19) should teach the courts to give considerable weight to the administrative construction of the law. But that is not to say, as the Court does, that it is so much a matter of administrative discretion as to preclude judicial review. To my mind, McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, is squarely in point. There there was a statute which bristled with discretion as much as this one. But where the administrative decision under it was not rendered on the basis for the exercise of discretion the statute provided, but as a matter of law, judicial review was available. We retreat from established principles of administrative law when we say it is unavailable here. The judgment of the Court of Appeals should be reversed, and the order of the District Court declining to dismiss the complaint for want of jurisdiction should be affirmed.

## Notes

* ↑ See Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 401, 432.
* ↑ In pertinent part, § 9(a) provides:
* ↑ Section 9(c) provides:
* ↑ In fact, the independent judicial remedy was not even put in pari materia with the administrative remedy under § 32(a). It simply provided:
* ↑ This legislation seems to have contemplated a judicial remedy much broader than that of the early provisions before the addition of § 32, see note 4, supra. The bills covered '(a)ny person eligible for a return under this section' (§ 32) and provided that such a person, after filing a notice of claim, might 'institute a suit in equity to recover such money or other property in the manner provided by subsection 9(a) hereof and with like effect.'
* ↑ One of the grounds on which the administrative officials may decline return under § 32(a) is that the claimant was not the owner of the property at the time it was vested, or the successor thereof. § 32(a)(1). Is this simply to be deemed a guide to the administrative discretion in granting returns, or a legal standard?
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