Warren E. Burger: We'll hear arguments next in Laird against Nelms and others. Mr. Stone you may proceed whenever you're ready.
Richard B. Stone: Well, thank you Mr. Chief Justice and may it please the Court. This case which comes on a writ of certiorari to the United States Court of Appeals for the Fourth Circuit raises two important questions of statutory interpretation concerning the scope of the government's liability under the Federal Tort Claims Act. The issues in this case are closely related to and in our opinion, virtually controlled by the issues decided by this court in the landmark case of Dalehite versus United States decided at 346 US. In that case, of course, the government was held not liable under the Tort Claims Act for damage caused in the disastrous explosion of certain chemical fertilizers with it in fact being transported by the government for export abroad which explosion virtually devastated the City of Texas. Fortunately, the factual context to this case is somewhat less ghastly than that which the court confronted in Dalehite.
Warren E. Burger: I am not so sure that it's important at all that Dalehite case, actually it was not government, private contractors were --
Richard B. Stone: That's right, but it had been carried out for suing to a government --
Warren E. Burger: That was basic issue that a private contractor was implementing governmental policies and try to keep (Inaudible) from starving?
Richard B. Stone: I think, for the most part Mr. Chief Justice, it was assumed in the decision that the government had played a sufficiently close role in entire process including the planning of the export and the transporting and packing of the materials, that, that issue was, at least that level of responsibility was assumed in the opinion. Respondents or residents of Nashville, North Carolina which is a rural community of about 1500 inhabitants. And respondents alleged there on several occasions and especially on November 14, 1968, their house was damaged by so called sonic booms, which put simply noisy vibrations that may occur when aircraft fly overhead, it's speed greater than the speed of sound. Respondent sought first to recover from the Air Force under the administrative procedures authorized by the Military Pay Claims Act and the Air Force regulations promulgated thereunder. But the Air Force engineer who investigated their house, concluded in a detailed report which is reproduced at pages 16 and 17 of the record, concluded that the damages to respondent's home had indeed not been caused by sonic booms. Respondents then sued the government and the District Court under the Federal Tort Claims Act. In answer to their complaint and supporting affidavits, corroborating the event of the sonic boom and the relation of the November 14 sonic boom to certain damages sustained by respondent's home. The government filed the motion for summary judgment and supporting affidavits. The government's affidavits acknowledged that indeed the Air Force had conducted a supersonic flight over the Nashville, North Carolina area on the alleged day and that the aircraft and the flight were attached to the Ninth Strategic Reconnaissance Wing of the Strategic Air Command. That is a branch of the Air Force which is charged with the execution of periodic high level supersonic training flights. These flights, I understand are used for training pilots for combat missions and are regulated by comprehensive predetermined flight plans. The Commander-in-Chief of the Strategic Air Command General Holloway who ranks for purposes of this type of operations directly below the Joint Chiefs of Staff, stated in his affidavit that he directed the operational training of Air Cruise by supersonic flights. And that the November 14 flight was in his words, “Authorized by and conducted pursuant to my direction”. Other affidavits filed by high Air Force personnel also stated that the flight was at all times on course, with respect to location and altitude as prescribed by the mission flight plan directed by the Commander in Chief and this statement is, I gather not controverted in any of the record of this case or in the Court of Appeals opinion, nor it is alleged at all that the flight plan itself was in any manner faulty. The District Court granted the government's motion for summary judgment on the authority of the Dalehite case, on the ground primarily that the planning and execution of the flights in question was a “Discretionary function” for which the government is specifically exempted from liability under section 2688 of the Tort Claims Act. And I shall address myself to that discretionary function provision shortly. The Court of Appeals reversed the District Court's plan of summary judgment and the Court of Appeals held that the discretionary function exemption was inapplicable in this case for reasons which as I say, I shall refer to later. On the merits of the case, after getting over the discretionary function exemption, the court held in direct contradiction I believe to this court's holding in Dalehite, that even though no negligence in the planning or operation of the flight had been alleged and no wrongful conduct at all had been alleged, the government could still be liable under the Tort Claims Act under a fury of strict liability for engaging in ultra hazardous activity. The government believes that Court of Appeals erred in both aspects of its holding, both respect to it's refusal to apply the discretionary function exemption and on the merits in it's imposition of the theory of absolute liability for the conduct of ultra hazardous activity under the Tort Claims Act. And I shall with the court's permission deal first with the merits of the case, that is, the question whether the Tort Claims Act gives rise to government liability for ultra hazardous activities without finding a fault or negligence. As I imagine the members of this court are well aware that Tort Claims Act was enacted by Congress in 1946 and authorized for the first time in this country's history, a very limited and well defined range of Tort actions which could be brought against the Federal government. The issue whether the government ought to waive its sovereign immunity from Tort Actions had been vigorously debated in virtually every Congress since 1990 and over 30 bills had been introduced and extensively discussed in both houses of the Congress. We attempt to show throughout our brief in this case, as we did very extensively in our brief in the Dalehite case. We have put in our brief here a summary of extremely complex legislative history of this Act. As this court noted in Dalehite the overwhelming concern of the Congress throughout its discussions about whether to subject the United States to tort liability was the need to provide compensation without resort to the laborious process of private bills for those who had been injured by the ordinary common law tortuous acts of individual government employees and agents. And the chief example of such a tortuous act used literally hundreds of times in the discussions is the negligent operation of a motor vehicle driven by government employee in the scope of his employment. Indeed the house report in the 79th Congress which ultimately passed the final version of the Tort Claims Act noted the need to ensure that the Act would “Preclude any possibility that the Bill might be construed to authorize suit for damages growing out of an authorized activity where no negligence on the part of any governmental agent is shown and the only ground for suit is the contention that the same conduct by private individual would be tortuous.”
William O. Douglas: I thought that the government had a department where the person who suffered damages of this nature can submit a claim and they would be paid administratively.
Richard B. Stone: That is right Mr. Justice Douglas. There is provision in the Military Pay Claims Act which is set out at 10 USC 2732 and so on by which --
William O. Douglas: It is at West, where I come from, this sonic thing has been a terrible nuisance and it has injured a lot of properties, people have filed their claims and they get paid.
Richard B. Stone: Yes, and so in this case, similarly in this case a claim was filed to the Air Force. What the Military Pay Claims Act does is authorize the Air Force to establish, and there are other branches of the military through whom damage might occur to civilians to institute procedures under which recovery might be sought regardless of fault. And that administrative procedure was indeed followed in this case by respondents and the Air Force as I stated earlier, the Air Force engineer determined that there was no cause of connection in this case between the sonic boom and the damage inflicted. As a routine matter, the Air Force does pay up to a certain maximum amount specified in the Military Pay Claims Act, damages that occur through sonic booms, but this is --
Warren E. Burger: Mr. Stone, one of the most frequent kinds of damages from the sonic booms is shattered windows. Were there any shattered windows here?
Richard B. Stone: According to the investigative report, there were no shattered windows here and I gathered that the primary aspect to damage which respondents have alleged is cracking in the walls. And the engineer noted in his report a number of reasons why he thought that it was impossible that the cracking in the walls of this particular house could have been caused by sonic boom and I think the Air Force takes position generally, that cracked glass is the primary danger and that major structural damage has really not been proved yet to be correlated with the sonic booms, but I think, that issue is not present in this case.
William J. Brennan, Jr.: But in any event, this suit was not filed until after administrative denial --
Richard B. Stone: That's right.
William J. Brennan, Jr.: That we saw through the --
Richard B. Stone: And the suit was filed under the Tort Claims Act which is by the very terms of the Military Pay Claims Act, mutually exclusive with Tort Act liability. There is only, Military Pay Claims Acts liability is only authorized in the event that there is no claim under the Tort Claims Act which we believe incidentally is a recognition of the fact that the Tort Claims Act does not cover liability in the absence of some sort of fault or wrong.
William O. Douglas: Is there a, like the maximum that's allowed under the Pay Claim Act?
Richard B. Stone: Under the Pay Claim Act, there is a $15,000 maximum except in certain -- that can be through certain special procedures can be waived, if necessary.
William O. Douglas: Well, I get that Mr. Stone, are you suggesting that under the Military Pay Claims Act, in that procedure, there has to be a determination in the first instance before an allowance is made to the claimant, that there would be liability under the Tort Claims Act?
Richard B. Stone: No, there has to be a determination that there would not be liability under the Tort Claims Act --
William O. Douglas: Before that maybe, is that right?
Richard B. Stone: That's right, that's right.
Warren E. Burger: And the only inquiry is whether the sonic boom caused the damage to the extent of the damage.
Richard B. Stone: Exactly.
Warren E. Burger: Are you suggesting anything in the nature of the election of remedies here?
Richard B. Stone: No, we are not suggesting, I don't think anything in that nature. We are suggesting that respondent has failed successfully to achieve a remedy through the administrative process authorized by the Military Pay Claims Act that he is now suing under the Federal Tort Claims Act and that, that Act --
William O. Douglas: Well, did he have to go first for relief from the military --
Richard B. Stone: No, I don't believe he did. We would not argue with any exhaustion principle.
William O. Douglas: Because for no other reason, they are mutually exclusive.
Richard B. Stone: Mutually exclusive, that's right.
William O. Douglas: And is it Congress that has said that no administrative payments where it is covered by the Tort Claims Act or is that regulated --
Richard B. Stone: That's Congress who said that, that's 10 U.S.C. 2733 (b).
William O. Douglas: So that, you argued that Congress thereby itself indicates at least, some kinds of damage that are not covered by the --
Richard B. Stone: Tort Claims Act, that's right. Let me get back to the language of the Tort Claims Act itself, even though negligence was the major concern, we of course, acknowledged that the Act was worded not truly in terms of negligence but rather in terms of injury caused by the negligent or wrongful act or mission of any employee under circumstances that may give rise to state liability. In the view of the Court of Appeals, the addition of the word wrongful, and that is the important word for purposes of this case, means the Congress intended to waive the immunity from tort action by the government for any act which would be grounds for tort suit under the law of the state, where the Act in question occurred, and since a person maybe liable in North Carolina to a tort suit for ultra hazardous activity without any question of fault, the court reasons that the government is correspondingly liable here and disregarding the question of whether operation of supersonic flights constitutes an ultra hazardous activity which I don't believe the Court properly determined, which in any event what I think require a fact finding proceeding of some sort. We believe the Court was in very serious error when it read the word, wrongful, in the Tort Claims Act, to apply to absolute liability for ultra hazardous activity.
William J. Brennan, Jr.: Do I get that, does it (Inaudible) Mr. Stone, if the discretionary exception properly applied, nevertheless, under the Military Pay Claims Act, there might have been -- Air Force satisfied itself there is cause of connection of the sonic boom to this damage. There might have been the payment under that Act.
Richard B. Stone: Yes, Mr. Justice Brennan. Now there are two different problems here, there is both the discretionary function problem which I shall get to and the question whether there was any wrongful and negligent act. Both, in order for there to be Federal Tort Claim Act liability, both of those conditions have to be fulfilled. There has to be a non-discretionary function by a federal employee and there has to be a wrongful or negligent act.
William J. Brennan, Jr.: And if either is not present then you have to go other?
Richard B. Stone: Then your only remedy is from the Air Force administrative procedure. Our essential position in this case is, I think it is Hornbook Tort law that strict or absolute liability for the conduct of an ultra hazardous activity is imposed not because a person has engaged in conduct which is in any way negligent or wrongful, but merely because the activity is one which poses a likelihood of damage regardless of a level of care exercised and as the commentators, I think, unanimously agree, it is the unique characteristic of this type of liability that it is imposed not because of a wrongful act but because of a policy judgment that the person who engages in an ultrahazardous activity should bear the risk of harm caused by that activity. And whatever the word wrongful means, in addition to the word negligence, it simply makes no sense to say that an act is wrongful because it gives rise to liability under state law, especially when the underlying assumption of that state law is not that the conduct is wrongful but on the contrary, that it is being to give rise to liability for policy reasons in spite, explicitly in spite of its not being wrongful.
Warren E. Burger: Are there any private aircraft that created sonic boom?
Richard B. Stone: To my knowledge Mr. Chief Justice there are not so far, but I don't know the answer to that --
Warren E. Burger: So, it's military aircraft only.
Richard B. Stone: To my knowledge, it is a problem that has been exclusively here in the domain of military aircraft but if that is not in the record, I don't know the answer to that question whether -- I am quite certain that there are private companies which are engaged in building the planes that can fly at more than supersonic speeds but whether they are being used for any other than military purposes, I don't know.
Warren E. Burger: But they are all properly built, there are no governmentally instructed construct a military aircraft?
Richard B. Stone: That's right. What I understand is that there are plans for the use of planes flying at these sonic boom oriented speeds by private industry, but I have not been able to find evidence that they are yet flying.
Potter Stewart: The Concord (Inaudible)
Richard B. Stone: I don't know. I would conclude this portion of the argument by referring to the very extensive legislative history of the Act which we discussed for these purposes at pages 13-16 of our brief, which indicate that the word negligence was intended to cover the great bulk of cases brought under the statute and the word wrongful was quite explicitly meant to have a very, very narrow purpose of primarily including certain kinds of trespass which were not necessarily negligent and this court in Dalehite, very explicitly agreed with this reading of the legislative history.
Byron R. White: Does the Court Claims at cover intentional --
Richard B. Stone: It excludes most intentional wrong, Section 2680 (f), I think, it is, quite explicitly excludes assaults and false imprisonments and intentional --
Byron R. White: That's deliberate trespass isn't there a test?
Richard B. Stone: Well, those deliberate torts which are excluded are excluded by name and trespass, deliberate trespass is not excluded.
Byron R. White: And therefore would fall within wrongful --
Richard B. Stone: Within wrongful, that's right.
Byron R. White: Well, if you, if the Air Force knows that it's inevitable that there would be sonic booms on this plane, they know that, that it's inevitable sonic boom, they don't know that every sonic boom will cause damage, they know there is a serious risk of it and they do it deliberately. I mean, they fly it away deliberately under and impose this risk of loss, that would be the kind of intentional trespassing.
Richard B. Stone: I think that's precisely the kind of situation which gives rise to strict liability for ultrahazardous activity where there is a statistical certainty that at some point if you continue to carry on this activity, some kind of damage will occur, but it is considered inherently a reasonable activity to perform, and liability is considered to be imposed regardless of any fault.
Byron R. White: But doesn't it get close to being intentional?
Richard B. Stone: Well, this is a question that's raised in all the commentaries with respect to where the strict liability is an intentional tort. I don't think that plays into the Tort Claims Act in any event because the exceptions in the Tort Claims Act are not too intentional torts by category but to certain specific torts all of which are intentional.
William H. Rehnquist: I think that there is a difference too, where you are talking about an intentional tort, whether you mean, whether the act intending to do the particular act or whether we did it with some sort of bad intent towards the recipient of the circuit.
Richard B. Stone: I think, that's right, Mr. Justice Rehnquist. And the mere fact that he intended to do the act and knew that it was a statistical probability indeed, a statistical certainty that some damage would ultimately occur, is not, I think, been considered by any of the commentators to be an intentional tort for proser and restatement of torts by categorization purposes --
William H. Rehnquist: And was not wrongful, isn't it?
Richard B. Stone: And we say not wrongful and this court quite specifically in Dalehite said that activity of this nature was not wrongful and that was not dealing with sonic booms but it was dealing with this broad category which is defined in terms of a relative certainty that some sort of damage will occur.
William O. Douglas: Have you ever been on a horse when one of these sonic booms hits?
Richard B. Stone: I have not been Mr. Justice Douglas. I understand that's one of the more unpleasant aspects of a sonic booms.
William O. Douglas: Speaking of what's wrong or not, perhaps that aircrafts fly over horse and people not doing their own business in a peaceful ordinary way, and this thing hits.
Richard B. Stone: Mr. Justice Douglas, there are --
William O. Douglas: And the question, is who is to suffer the loss?
Richard B. Stone: There indeed is the question as to who should suffer the loss, in this situation and in many situations in which many governmental activity regardless of finding a fault or wrong causes damage to an individual.
William J. Brennan, Jr.: Well, I suppose your answer is --
Richard B. Stone: The Congress has not chosen to --
William J. Brennan, Jr.: Well, I accept your answer would be that if a boom -- everyone of like, if you get thrown off a horse when the boom goes off, you know what caused you, you get thrown off a horse and you are hurt, I suppose, your answer would be that you may not have recovered from the Tort Claims Act which you are likely to get under the Military training.
Richard B. Stone: That's exactly right Mr. Justice Brennan, but the Tort Claims Act in very specific terms says that the activity must be wrongful and this Court in Dalehite very explicitly --
Potter Stewart: Well this is -- North Carolina has what's called a Uniform Aviation Statute. I can't find text to that statute because it means patently something else.
Richard B. Stone: Oh, it's -- yeah, I am told that it's not.
Potter Stewart: You referred to trespass and my impression was, although I don't have the text to this statute, state statute, before me that that's exactly what the state makes this. And it says that in a point of view of over flying aircraft and a landowner owns all the way up to the heavens in concept and the old common law concept and then goes an airplane that invades the airspace above his real estate is truly a trespass. Damages are involved, those are damages that result from trespass. And you just conceded that there is Federal Tort Claim Act liability and the you have a trespass. Have you not?
Richard B. Stone: Mr. Justice Stewart, I don't know the answer to whether North Carolina Law categorizes this as a trespass.
Potter Stewart: We don't have the text of the statute.
Richard B. Stone: We have a reference in our petition to North Carolina General Statute 6314, this is on the footnote on page 26 of the petition and I think that the reason we have not gone into this in detail in North Carolina Law is that the Court of Appeals which held in respondent's favor assumed that the theory of North Carolina law which it was based in its holding of Tort Claims Act liability on was a strict, conventional strict-liability for hazardous activity theory and not a trespass theory.
Potter Stewart: (Voice Overlap) liability, we were told that it was trespass and there wasn't that kind of a physical kind of trespass and that wasn't that kind of trespass into my case.
Richard B. Stone: Oh, excuse me, let me --
Richard B. Stone: Let me answer the question by saying that I don't think -- I think that the kind of trespass, even a trespass would have to be wrongful in some sense.
Potter Stewart: Well it is wrongful it's by virtue of apartments and trespass, is it not? If I walk on somebody else's property to get a airplane in the statute, that's a trespass whether or not I have evil intent or not.
Richard B. Stone: I think unless there is some element of thought even though it can be labeled a trespass, it's not necessarily wrongful.
Byron R. White: I would say, if there is no damage in that kind of action (Voice Overlap)
Richard B. Stone: It's tortious. It maybe tortious but it is not necessarily wrongful. And in any event, excuse me.
William J. Brennan, Jr.: The trespass, I should have thought -- it could at least be argued that a trespass is per se wrongful, it's the invasion in somebody else's real estate.
Richard B. Stone: Well, I would suggest that we don't know whether North Carolina Law specifically hold this on.
Warren E. Burger: I should say, it might be rather important in this case.
Richard B. Stone: It would be rather importance but it's not.
Potter Stewart: I know it's not this theory on which of the Court of Appeals has rested but --
William H. Rehnquist: Do you think Congress use the word “wrongful” in the Act? To me, anything that was a legal wrong under state law or do you think it has some narrower definition?
Potter Stewart: Oh, quite, and we believe quite certainly that it had a much narrower definition that if had meant something that would give rise to liability under State Law, different words would have been used and the Court said in Dalehite, that different words would have been used and the Court said in Dalehite that if “wrongful' had meant simply tortious in the sense of giving rise to liability that there are other models for compensation such as the Maritime Act, for example, which specify that any act which is considered tortious, gives rise to federal liability.
Warren E. Burger: Mr. Stone, suppose this plane, this was giving off sonic booms or creating, had instead, or at the same time it was doing this booming, lost its power, and fallen right on this house and demolished, Tort Claims Act case?
Richard B. Stone: That I gather has been held in different ways in Circuits that if a falling which is -- a falling which occurs, regardless of fault, I think we would argue, it's still not a compensable necessarily under the Tort Claims Act.
Byron R. White: If it fell out of the sky because of a bomb had been placed on it, and exploded, so the non-negligent falling, you would say that it wasn't covered by the Tort Claims.
Richard B. Stone: That's right Mr. Justice White, we'd say that that was not a wrongful, not a wrongful act by a federal employee.
Warren E. Burger: I don't recall the Fourth Circuit case, there was one perhaps 17 or 18 years ago, shortly after Dalehite in which the pilot thought his plane was going to crash and so he put it on automatic control and headed it out to sea and he jumped with a parachute and the automatic pilot wasn't working and the plane circled and landed on a house in Baltimore.
Richard B. Stone: I believe Mr. Chief Justice, that that's the Praylou case and indeed that case was decided very shortly after Dalehite, and this Court held that -- this Court denied certiorari in the case. The Fourth Circuit held that there was liability but one of the theories argued in that case, was the theory of (Inaudible) and that when this Court denied certiorari, the papers before the Court emphasized heavily that the theory of (Inaudible)was in the case, so that in effect negligence was alleged and we have always assumed that the Court denied certiorari for primarily because there was a problem of negligence and not an understanding that Dalehite was being quietly reversed four months later on it's holding that there was no absolute liability. Mr. Justice Stewart, let me add to your question that I simply don't know precisely how -- I have taken this on the assumption that the Court of Appeals correctly interpreted North Carolina Laws especially since the Court of Appeals held for respondent's on a theory, most favorable to them, and I haven't looked any further into it but I would certainly be happy to make a further submission about North Carolina Law if the court beams at questions in this case.
Potter Stewart: That strikes me, might be materials that you do see --
Richard B. Stone: Well, we'd be happy to address ourselves to this question in a supplemental -- I see, I have right at the time and I have not yet gotten to the second question which is whether the Tort Claims Act precludes recovery on the basis of the Section 2680a exemption for discretionary functions. I would say in brief that I think that the fact that this activity inherently, the planning operation of this flight was inherently a discretionary function within the meaning of a 2680 exemption, is un-controverted by anyone in this case including respondents and the Court of Appeals that the activity was inherently discretionary, follows very much a fortiori from the Dalehite case. The ground on which the Court of Appeals refused to apply the discretionary function exemption, was not that the activities were not discretionary but that the discretion was moved by the Air Force regulation 5534 which is reprinted as Appendix C to our petition and that is indeed the regulation promulgated pursuant to the Military Claims Act, which deals with procedures applicable to super sonic flights and recovery for super sonic flights. And I think it's quite clear that, that regulation has nothing to do with the discretionary nature of the activities involved in this case. The court cited specifically two aspects of regulation 5534. It first noted that the regulation instructs the Air Force to assure “maximum protection for civilian communities in carrying out the flights,” and from this the court appears to have a reason that if any damage to a civilian occurs, the conduct of the flight in some way, loses its discretionary nature. The short answer to this contention and I think there are several other answers also is that that the provision for maximum protection of civilians is in its own words made applicable only wherever or whenever feasible and accordingly flights are required to avoid populated areas, “as much as possible”, language which on its face leaves the Air Force with considerable discretion and which is not even alleged to have been abused in this case. And in addition of course, I don't think that that regulation could have changed, widened the scope of government liability under the Tort Claims Act anyway. The court also refused to apply the discretionary function exemption on the ground that the regulation specifies that “The Air Force must accept the responsibility,” for damage caused by sonic boom and from this, the Court reasoned that there is no discretion to fly supersonic airplane without compensating injured civilians. I submit to the court that this aspect of the lower court’s holding is really plain on words because whatever discretion the Air Force has to under its own regulations to pay or refuse, to pay damages to injured persons has nothing to do with discretionary function provision of the Tort Claims Act, which relates only to the nature of the activity engaged in and not to the obligation to pay a claim.
Warren E. Burger: Mr. Stone, we will remand your time five minutes and give Mr. Allen five minutes, so you can divide it the way you wish.
Richard B. Stone: Thank you Mr. Chief Justice and I would add again that I don't think Air Force regulations dealing with repayment of claims can confer Tort Claim Act jurisdiction on the Federal Courts in cases which are specifically excluded from jurisdiction by that Act. When respondents sought relief from the Act, from the Air Force pursuant to this regulation, as I said earlier that the Air Force engineer who investigated the damaged of premises concluded that the damage was really far smaller in amount than respondents had claimed and then in any event it was not the type of damage that could be caused by sonic boom. And I think one suspects that the court below was motivated in this case essentially by fueling that the government ought to bear the risk of damage caused by its operation of supersonic flights, and indeed I suppose the theory would extend to the risk of most any government operation in which there was some likelyhood of damaged being imposed or even in which damage was inflicted at all. Congress has simply not chosen and deliberately not chosen to undertake this kind of risk. Prior to 1946 as I said, --
Thurgood Marshall: Mr. Stone, could the Air Force decide that we will send supersonic planes on wars in a thousand feet, because it would be cheaper. I am sure you don't want to go all that distance.
Richard B. Stone: I don't want to go all that distance of course, I don't have to in this case Mr. Justice Marshall but I suppose if the Air Force could produce important governmental considerations which weighed into its decision to fly supersonic flights, thousand feet over Washington -- at least its face, the discretionary function exemption of the Tort Claims Act would apply.
Thurgood Marshall: My trouble with Dalehite, and other is that, you don't take position. They don't have to justify their regulations. We do not take that position.
Richard B. Stone: I think we do. I think precisely what Dalehite held and precisely what the discretionary function exemption of the Tort Claims Act comes to tell us is that the Tort suits ought not to be the vehicle by which regulations and discretionary activities either pursuing to regulations or otherwise ought to be reviewed. Now if the regulation is negligibly carried out in someway then the Tort Claims Act covers the case but precisely what that exemption meant to tell you was that this is not the vehicle. The Tort claims Act is not the vehicle to review the reasonability of regulations or high level government plans.
Potter Stewart: Well, exactly those imply to my brother Marshall's question as I understood it. The government doesn't have to show that the regulations were legal, why it is reasonable or right through anything else but simply that they were. There was a discretionary function even though the discretion was -- arguably an unreasonably exercise --
Richard B. Stone: In fact that is -- I see what the, if we read the language of 26-88, the provisions of this chapter in section 13-46 (B) which is the Tort Claims Act shall not apply to any claim based upon an act or omission of an employee of the Government, exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty. In other words, the Congress has not taken the risk of Tort Claim suits for improper regulations and it has not taken the risk of Tort Claim suits for conduct that is not wrongful and this Court explicitly says so and after this court read the plain language of the statute to to preclude relief in Dalehite, Congress threw a very extensive private relief bill setup an ad hoc commission which it authorized to compensate the victims of the Texas city explosion and throughout all the debates that proceeded this relief provision, there was no suggestion whatsoever of amending the Tort Claims Act in anyway that would change the holding of Dalehite decision, nor has there been any such discussion since then. The Act still stands, it still applies negligent or wrongful activity, it still accepts liability arising from the performance of discretionary functions and we believe that for that reason, the decision below must be reversed by this Court.
William H. Rehnquist: Mr. Stone, as I read the respondent's brief, they contend that even though they don't prevail on statutory grounds, they are entitled to remand on Fifth Amendment grounds on United States versus Causby. I didn't notice the government addressing itself to that issue, in the brief, but what's the government position on that?
Richard B. Stone: Well, Mr. Justice Rehnquist, the Court of Appeals ordered that the Trial Court was to allow plaintiffs to change their complaint around so as to fit in, unjust taking provision under the Fifth Amendment. I suppose the government would not oppose in principle a expansion of the complaint to fit that ground. The complaint was rather un-artfully drawn, it was a home drawn complaint and I suppose it could be read fairly broadly to include lots of claims. I think we would definitely take the position that the Causby case does not in anyway control this case in very, very different circumstances in Causby and the planes were flying 50-feet overhead constantly over the plaintiff's property and that was in effect a constant easement that had been taken from the plaintiffs and it was on that basis that the Court of Appeals held that there had been a compensable taking.
Potter Stewart: And basically here you would say there was simply no taking whatever --
Richard B. Stone: No I don't think. This kind of a very occasional infliction of damage, I think just bears no resemblance to taking and I think this court could really take notice of that but I think I would be hesitant to argue that the complaint was too narrow to encompass that theory. I just think the theory is virtually frivolous in context of this case.
Warren E. Burger: Very well, Mr. Stone. Mr. Allen, you will have five additional minutes in addition to your 30 minutes, Mr. Allen.
George E. Allen, Sr.: Mr. Chief Justice, may it please the court. I don't think I am going to need the five additional minutes, unless I am asked a lot of questions, a lot of time is consumed in that duration. Upon reading the comprehensive brief of the government, and the learned and able and my distinguished friend here, inquiring in the minds of the Congressmen who have enacted the Federal Tort Claims Act, they've filled references and quotations to the Congressional record, rather inconclusive of the intentions of the Congressmen, reminds me of the observation of the Great Chief Justice Marshall in the case Gibbons against Ogden in which he said, “Powerful and ingenious minds by course of well digested but refined metaphysical reason.” So entangled and the work, the understand as to obscure the principles which were before “complaint”. An induced doubts where (Inaudible)to follow its own common sense of course, not even be perceived. In such a case, he said, we should recur to commonsense fundamental principles and diverse principles to test their own, examine the arguments that are to be tested. Now let us follow that advice. This case is not as difficult as my good friends on the other side would have us believe. Reduced to its simplest analysis, it is just this. Nelms (Inaudible) at the Foothills of North Carolina in a home which is not a mansion, that is all the home they have. The Federal Government conducting training missions with supersonic planes from California to North Carolina, pass over his house at a distance, I don't know what the distance was, but it was close enough so the sonic booms generated to hit the man's house like a (Inaudible). They shattered the walls, they broke the windows and the damage was so extensive that barely the contractor said, it will cost more to repair the house than to rebuild it. Nelms seeking damages to rebuild his home, filed suit in a District Court in North Carolina. That court followed the theories of the government and dismissed the complaint.
Warren E. Burger: Do all of these allegations and damage appeared in the complaint itself?
George E. Allen, Sr.: Yes Sir, they appear in affidavits that were filed. We've never had any trial on that issue, in fact. Nelms was a poor man, too poor to afford a counsel, so in the District Court employed -- asked the local counsel to represent him. After the decision was against Nelms, he appealed to the Fourth Circuit at Richmond in propria persona and when the case got there, Chief Judge Hemsworth asked the clerk of the Court to call and asked if I would represent Nelms in that court saying that he felt it was a type of case that I would relate. Of course, I agreed. They have refused, the point we made, for a court represent an innocent person. So I walked down to the clerk's office, examined the record and then I found myself 87 years old, semi-retired, trying to get out of it, in the midst of the one of the biggest questions of the day. Well of course, the first thing, I did was to look at the Federal Tort Claims Act and of course, I found that it provides that the Government shall be liable just as an individual would be under like circumstances and liable according to the law of the piece where the act of omission took place. Naturally then, I would tend to see what North Carolina law was, and I found that North Carolina had adopted the Uniform Aeronautics Act which provides a strict liability, that is liability without negligence. The North Carolina statutes are set out in the Appendix to our response to the petition for certiorari, and have been put and reference in our brief is made to that appendix. Then I found another thing, that the air force itself which is home of of the Federal Government, which is the defendant in this case had no need of regulations, case resulted in the same liability that the statutes of North Carolina had created.
Warren E. Burger: But are they not limited to cases which are not covered?
George E. Allen, Sr.: Sorry.
Warren E. Burger: Are those regulations limited --
George E. Allen, Sr.: No, Sir, no Sir.
Warren E. Burger: They are not.
George E. Allen, Sr.: No, Sir they are not. They are set out in the record in this case, and the regulation itself is mentioned by Judge Butzner in his opinion.
Judge Powell: The North Carolina statute, it appears on Appendix 2 of your response seems to say that as a matter of state law the landowner owns the space above the land?
George E. Allen, Sr.: Yes Sir.
Judge Powell: And subject to the right of flight described in 6313 and that flight is described as flight that is not dangerous or injurious to the persons or property beneath. So if that makes the -- under state law that makes the landowner the owner of the space above his land and therefore any invasion on that space except in the limited manner described by 6313 would be a trespass.
George E. Allen, Sr.: That's right.
Judge Powell: And doesn't that make this quite different therefore from the Dalehite case.
George E. Allen, Sr.: That's right, that's what Judge Butzner had --
Judge Powell: And the matter of state law.
George E. Allen, Sr.: That's right. Now not withstanding the laws that I have mentioned, the Government claims that is not liable, because of this discretionary function in the statute and it is our claim supported by an abundance of authority cases cited in the brief that neither the Government nor an agency of the Government has any discretion to violate the positive law of a state. It's outside of anyone's discretion. I think Judge Parker, the late John J. Parker who by the way was really the greatest appellate judges that ever sat on the Appellate Court in this country. I know because I already ran a case before him. He should have been approved when he was nominated for this court. But people defeated him. Now Judge Parker, I might be a little bit inaccurate, so I am afraid exactly what he had in the Praylou case. The Praylou case went up as I recall from South Carolina and South Carolina had adapted the same rule universal, Uniform Aeronautics Act of North Carolina, and therefore the court had referred in that case the exact question that we have for before here, and Judge Parker said or held this, Congress did not intend to exclude from coverage of the Federal Tort Claims Act liability arising from operation of government aircraft merely because under the state law liability for entry was made absolute and not the dependent upon negligence. Nor did Congress intend the that there should be a liability, in states where a liability under the state law is based on negligence and no liability in the great majority of states which have adapted a Uniform Aeronautics Act.
Potter Stewart: What's that decision?
George E. Allen, Sr.: That's the Praylou case from the first --
Warren E. Burger: That's the case where the plane fell on the house in Baltimore, isn't it?
George E. Allen, Sr.: No Sir, I don't think that's this case. This case arose in South Carolina, of course they applied the South Carolina law.
Potter Stewart: You have to have the citation?
George E. Allen, Sr.: Yes, we have a citation. It's in the --
Potter Stewart: In your brief, no doubt, but I can't find -- Page 3 of the brief on opposition?
George E. Allen, Sr.: It's 208 Federal 2nd cited in our brief on page 10, of our brief.
Potter Stewart: Thank you.
George E. Allen, Sr.: Our brief is a readmission.
Potter Stewart: Yes, I have. Thank you.
George E. Allen, Sr.: Now this court refused certiorari in the Praylou case. Well, I know that they say you don't need anything to refuse certiorari, but it does mean something in some cases because if the decision in Praylou on the identical question was as erroneous and would disastrous to the Federal Government as the government claims now that it would be in the Nelms case, I am sure, somewhere would have this honorable court would assess it and grant it certiorari.
Potter Stewart: Was the Praylou case decided before or after the Dalehite case, do you know?
George E. Allen, Sr.: Afterwards.
Potter Stewart: Afterwards, thank you.
George E. Allen, Sr.: Now, when the Nelms case came before the Fourth Circuit, what was that court supposed to do? An identical question had been raised and decided in the Praylou case and this court had refused certiorari. This court had led the decision stand, surely there was nothing for the Fourth Circuit to do except to follow the Praylou case, which it did. This Court in what is known as the famous chicken case, the Federal Tort Claims Act was enacted, decided that government planes passing over a farmer's chicken farm, frightened the chicken so that they would fly up against the walls of the buildings and (Inaudible) and some of the hens will stop laying and those few that continued to lay, their eggs were worthless for raising the chickens, no doubt because the males were so frightened that they couldn't perform their duties in fertilizing days. Now this High Court held in that case that according to the Fifth Amendment that man was entitled to compensation, although not one square foot of his property was taken. They said that it was practiclaly disturbed for the purpose of raising chickens. Now according to the argument of the Government, Nelms would have been better off if the Federal Tort Claims Act haven't been passed. He will have some chance to recover under the Fifth Amendment. And now I want to have something to say in passing there for regulation.
Warren E. Burger: Before you go onto that Mr. Allen. Do you read the Tort Claims Act with decisions under it as affecting the basic Fifth Amendment rights for a taking?
George E. Allen, Sr.: I don't think it can do it, sir. I think an act of Congress can't affect --
Warren E. Burger: Your last statement sounded as though that --
George E. Allen, Sr.: Sorry.
Warren E. Burger: Your prior statement sounded as thought that Tort Claims Act had intent on the --
George E. Allen, Sr.: No, not at all. I only meant to say that if we try to recover on to the Tort Claims Act, we would have been better off to haven't given the Tort Claims Act. That's in the Fifth Amendment, no sir. Now we will come to that in an another connection little bit later. Just a word about these regulations. A Federal statute authorizes the President of the United States as Command in Chief of the Army and Navy, to make regulations of the Army, Navy, and Air force. Of course, he doesn't actually make them himself, he delegates that to respective agencies, in this case the Air Force. But when the Courts hold that they are presumed to have been made by the President and they have the force of law, feeling and I might not have time to complete my brief, I have decided to write a brief on that issue before I received the government's brief. We found 31 cases, three from this High Court, holding that regulations of that type have the force of law. We found one the Ward (ph) case making particularly a scrap of paper out of a regulation, the Ward case was a District Court case in Pennsylvania. So lo and behold, when I got the brief of the government, they cited the Ward case. We had cited in our brief, because along the cases we found two of those claims were made to us, but we cited all other cases. They cited the Ward case. They decided one above all of these other cases, (Inaudible) that this Court had decided. Perhaps the gentlemen belonging to that school of thought that the last cases have any relevance or importance and they stopped where the last advent cheat of a larger system and looked back. In the first case they find (Inaudible). Now Dean Palm (ph) told us that you might as well read throw your whole law books that's just been in the shelf for 30 years, but you didn't lend it back to one. Now, of course the (Inaudible) case, I understand, it is before the Third Circuit and that the Third Circuit is awaiting the decision of this court in this case before it decides the Ward case. I want to pay my respects to the famous Dalehite case, of course the lawyers were depleted. I had been the defendant against them in that case. 500 and some persons were killed and millions of dollars worth of property was destroyed and hundreds of persons injured. Now the amount of the damage ought not to have had anything to do with the decision, but apparently it did. But aside from that in the Dalehite case there was no statute involved as a guide to the court and there was no regulation involved as a guide to the court. And according to the court's own reading the ultrahazardous doctrine didn't apply, because the court found that the explosion was a result of an accident, hear what I am saying, absolutely unforeseeable by the exercise of the (Inaudible). So nothing has been put in -- exercise of ordinary care. I don't think the case has any control over the issues in this case and that's was Judge Butzner said, Judge Butzner of the Fourth Circuit, who might approach this case from another angle. We know that the Federal government has no powers except those granted in the constitution either expressed it or by necessary implication. Now, we have a Federal statute and a State statute on the same subject. What are we to do? We are required by the law to examine both statutes and if they are not irreconcilably -- if they are not wholly irreconcilable, then we must -– what I am saying, we must construe the two statutes so as to let them both stand if we can, and you have a unique situation here. The Federal statute actually creates for word of action under the State law, because it says that the federal government will be liable, if any individual in the state (Inaudible) and it says further that the liability must be according to the state law, then you have the discretion that I am referring to in the federal statute. What are you going to do with that, when you come to construe the statutes? Remember, a lot of times, the limited powers of the Federal government and the unlimited powers of the State government except as they are restricted by Federal constitution and its own constitution and by Federal Statute authorized by the Federal constitution. You will have to construe the discretionary function provision of the Federal Tort Claims Act to the effect that there is no discretion on the power of the Federal government or any agency of the Federal government or any person representing the Federal government, no discretion to violate the positive unambiguous state law. Then both statutes can live together. Now, that construction in my own judgment would be more in keeping with the intention of the Congress to spread the liability over all of the taxpayers instead of requiring the poor taxpayer who sustained the loss to bear it all.
Warren E. Burger: Mr. Allen let me a put a hypothetical question to you which may or may not shed any light on the problem. Suppose we were engaged in the war, enemy attacks on an American establishment and antiaircraft guns were used to repel the attack, and of course as we know antiaircraft gun fire, if it doesn't hit the enemy airplane, ultimately, it has to fall down back to Earth. Of course, it falls on either people or houses or cows, animals, it does some damage. Do you think it's covered with the Tort Claims Act?
George E. Allen, Sr.: I don't think that the Federal government has any right even for the benefit in war times and any other times to destroy a property and put the burden of all damage on that property only rather than on all the people through taxes letting all the citizens bear it. I don't think they would have a right to do that.
Warren E. Burger: That would be a highly discretionary governmental function was it not just to shoot --
George E. Allen, Sr.: Yes Sir, it would. In many instance has the government any discretion to take property or destroy a property, without claim. They are prohibited by the First Amendment to the constitution.
Warren E. Burger: What do you think that exception that about discretionary actions means then?
George E. Allen, Sr.: Well.
Warren E. Burger: That would be the highest order of discretion, would it not if the ground forces were ordered to repel the enemy attack by the use of anti aircraft fire?
George E. Allen, Sr.: That's right, it certainly is, but still if they destroy the property of a private person, you have being destroy for public purposes, private property being destroyed for public purposes, without compensation. It's just a question of magnitude, suppose a government tank runs over a house. I will illustrate this again. When I first came to the bar, we have a -- the Highway Commission was vested with absolute and uncontrollable discretion to run highways to new... But there was another law which provided that they could run a highway through a man's (Inaudible). Now they couldn't exercise that uncontrollable discretion and violated that other statute. So anyway you look at, you would see rules of law and your discretion can't be exercised in violation of rules -- positive rules and you had the law in Dalehite case – you had no rules of that kind, no statutes or anything of that kind. You had nothing but the Ultra Hazardous Act, and of course that wasn't up further in view, fine use of fact that the court made. Just before, after I had written our brief in this case, a few days before I left home, I came across my desk, two articles written on the Nelms case. One from the New York Law Review, from University of New York and other from students in University of Washington, at Seattle. I read those two articles with a great deal of interest. There we have a younger generation taking a new look at the situation and I became more convinced than ever of the confusion that exists in this country in reference to the Torts Claims Act and particularly the discretionary function.
Potter Stewart: Do you happen to have any citations of those two law reviews?
George E. Allen, Sr.: Well, I have one of them, sir. I have the New York.
Warren E. Burger: If you could supply both of them to the clerk Mr. Allen, if you may supply both to the clerk after the argument if you don't have them at this time.
George E. Allen, Sr.: Now, the one from Washington State, the only citation, I can give there is the name of the two gentlemen that wrote it. It seems that they wrote the brief in the court argument case. Now the Federal -- the New York review, I don't think it's out yet, but it will be published in the April issue of the New York University Law Review and the title of it is Federal Torts Claims Act. The government maybe is strictly liable to a homeowner for damage resulting from a sonic boom (Inaudible). There was a very good discussion there and the other case is a brief written by -- I have the name here somewhere -- two students (Inaudible) I have the given them down to the clerk, you can take them down. Now after reading those articles as I said, I was more convinced than ever of the predicament we are in, and the state of confusion we are in on this subject. And I am going to offer this solutions which is the only one I think of, that will clear up in that, and it would be in harmony, I think with the intention of the Congress. That is wherever that is a State statute fixing the liabilities or even a regulation of the Air Force which is a part of the government, then they take this discretionary function provision out of the area of discretion and the Government should pay it. Now neither the rules require merely indicate to this honorable court what action I think it should take. What special relief I believe, where the rule says, I think the Fourth Circuit should be affirmed in its ruling on the Federal Tort Claims Act, and the case remanded for trial to court on the question of proximate cause and damages, and that as to the Fifth Amendment, the case should be remanded with trial before the court with a jury, if we make a submissible case on the question of taking with private property for public purposes without compensations, and I thank you.
Warren E. Burger: Thank you Mr. Allen and thank you Mr. Stone. The case is submitted.


Earl Warren: Number 52, Myron Wiener, Petitioner, versus the United States. Mr. Wachtel, you may proceed.
I. H. Wachtel: Mr. Chief Justice, may it please the Court. It is truly with a deep feeling of humility, that I come before the Court to ask you to consider and pass upon a question that has remained unanswered since the date of the Constitutional Convention. The facts in this case are not in real dispute. The petitioner was a member of the War Claims Commission. By the terms of the Act, the Commission was to expire upon completion of its work, but in no event, later than March of 1955. In December of 1953, after a representative of the President had asked the petitioner and other members of Commission to resign, and upon their refusal to resign, the President notified the Commissioner, one of the other members of the Commission, the third member having died in the interim that he was removed from office in order that the President might complete the administration of the Act with personnel of his own selection. Interestingly enough, the language of this letter, almost verbatim, the language used by the President when he sought to remove Mr. Humphrey's from the Federal Trade Commission. The petitioner notified the President that he felt the President lack the power to remove him. That he would continue to hold himself in readiness and available to perform the duties of his office and questioned the President's power. Notwithstanding this, the President issued appointments, the three individuals to serve as members of the War Claims Commission. Thereafter, the petitioner requested the Attorney General and the U.S. Attorney for the District of Columbia to commenced quo warranto proceedings for the purpose of determining wether or not these three individuals were properly in office or whether or not they were usurpers. The Attorney General and the U.S. Attorney refused to intercede. An application was made to the District Court for the District of Colombia, and an old-fashioned writ of quo warrato was issued pursuant to the order of Judge Mcguire. The U.S. Marshal served this writ on the three individual respondents and no one else. Thereafter, the Department of Justice appeared as attorney of record for the three individual respondents. On motion to the summary judgment -- cross motion from summary judgment, as Mr. Justice Kern ruled that the removal of the petitioner here or the relator in that case, was within the scope of the President's power and dismissed the petition. An appeal was taken to the Circuit Court of Appeals. And before the record had been printed, the Congress having failed to act within the 60 days time provided by the legislator of Reorganization Act, resolution of the President became effective and the War Claims Commission was abolished. When this occurred, a stipulation and agreement was signed by the attorney for the appellant and the attorney for the respondent agreeing that the issue would become moot and concerning to a dismissal of the case. The very words of that agreement appears in our reply brief. Thereafter, the petitioner here in his own name acting for himself pursuant to the provisions, Title 28 of the Judicial Code, brought an action in the Court of Claims for his salary, for the period during which he was prevented from performing his duties. In that action, he pleaded, established his appointment that he was duly performing his duties. That the work of the Commission had not been completed that his term had not expired and that nevertheless, he had been removed by the President and that such removal was illegal contrary to law and beyond the scope of the President's authority. The findings of facts is essentially along the lines I have just enumerated, or handed down by the Court of Claims. And in its decision on the merits, it found that the petitioner was a member of a body performing a quasi legislative and quasi judicial function. That the Act under which he had been appointed and under which he was serving contained no limitation on the power of the President to remove him. And that accordingly, the President properly removed the petitioner. Mr Justice Whittaker of the Court of Claims dissented and took the view that before we could determine whether or not the Court of Claims -- whether the Court of Claims is right in holding that the Congress did not limit the President's power to remove the petitioner in view of the nature of his functions we must first determine whether or not the President posses any power which could be limited. It was Judge Whittaker's position and it's the position we take here, that the President did not posses any constitutional or statutory authority to remove the petitioner. The Act being silent as to any express grounds for removal, the Act being silent as to any express grant of power to remove and silent as to any denial of the power to remove, we say that under those circumstances, the Act neither granted the President the power to remove the petitioner, he lacked any to power to remove the petitioner and therefore, his removal was illegal. Now, as we view the issues before the Court, we respectfully suggest, and to this extent, may agree with -- with Government counsel that it maybe possible for the Court not to reach this very important constitutional question. If the War Claims Act, by its language from its history, will be or can be construed as providing a term of office which could not be curtailed without cause and which could not be curtailed at the pleasure of the President. Then this Court, if it should find that the petitioner was that ephemeral purely executive officer that this Court talked about in the Humphrey case. If it should find that he is that type of an officer, then we say to the Court that if he chooses to follow that line of reasoning, that the President possesses an unrestrictable power to remove a purely executive officer. And we did not reach the constitutional question. But if, as I say, the Court should find --
Felix Frankfurter: Well, you have --
I. H. Wachtel: Pardon?
Felix Frankfurter: May I suggest that you have reached a constitutional question if you conclude that, namely if he is whatever maybe a purely executive officer then the President has constitutional power inherently to dismiss it.
I. H. Wachtel: I say, there is no question about that if --
Felix Frankfurter: Well, there is a constitutional conclusion even though there may no -- be no constitutional argument.
I. H. Wachtel: Well, that maybe so, Your Honor. On the other hand, if the Court should find and construe the Act, the language of the Act as providing a term of office, which by its language and its legislative history did not authorize the curtailment of the term without cause or at the pleasure of the President, we must then proceed to the determination of the nature and character of the function of the Commission.
Felix Frankfurter: May I -- I think in here, well, you seem without cause. The statute doesn't say anything about the cause. It doesn't --
I. H. Wachtel: The statute is completely silent, Your Honor.
Felix Frankfurter: Well, then -- then why your qualification without cause if you -- do you thereby imply that if the President had a good cause, a relevant cause, you could have been with Mr. Jones or Mr. -- Mr. Myron Wiener? You've been derelict in the conduct of this office and I will appoint John Jones to give you a chance to be heard. He will report back to me and if I find that you have been, I'll fire you? Do you think that -- that would be all right?
I. H. Wachtel: No, no, Your Honor, because if we follow the line of cases in which this Court has enunciated the doctrine that given as to executive officers, purely executive officers that -- given a term -- given a term without any language in the Act providing grounds for removal that before the President could remove, he must do so on notice and give -- and a hearing which is what it in effect said in the (Inaudible) case at one point and also in the Reagan case. Now, I must confess to the Court that had the President had good cause here, we would have had an entirely different case.
Felix Frankfurter: Well, let me -- let me -- it hasn't been clearer. He could -- this is a term fixed or a term contingent upon an event which is this case, isn't it?
I. H. Wachtel: Well, this Act says that the term of office shall expire when the work of the Commission is finished.
Felix Frankfurter: Yes. And if nothing is said about the basis for removal or curtailing opinion, you still have to decide whether it comes within the inherent power of President, see what the law of the State to be executed. That he may move to terminate and to -- are you saying anymore that there may be of this whether he is -- is a so called executive officer and imply qualification that he may, the President, may and must go through a notice and hearing at the ground shown. Is that all you're saying?
I. H. Wachtel: I say, if --
Felix Frankfurter: But, it -- it doesn't come -- merely comes within -- broadly speaking, Humphrey's rather than Myers, then it -- the cause is irrelevant.
I. H. Wachtel: That's correct, unless Congress enumerate it.
Felix Frankfurter: I know, but it hasn't.
I. H. Wachtel: That's correct.
Felix Frankfurter: It hasn't. Congress says that if he finds him derelict in his duty or he's too old or whatnot, he may then shortlist that. That is in this situation.
I. H. Wachtel: That's correct. And -- and that --
Felix Frankfurter: I don't -- I'd -- I -- I'd like not to be mixed up about the cause fact in this problem.
I. H. Wachtel: Well, we -- we say and I continue to use the term without cause, Mr. Justice Frankfurter, because the President in his letter talks about in the national interest, completing that his administration, to complete the administration of the Act. I want to make it clear that in this case, there is no issue of removal for cause nor does the Act itself enumerate causes.
Felix Frankfurter: But -- but the President may and -- and often does and one hopes frequently takes action that an -- action that are none reviewable in the courts and yet -- yet must have some rational justification. And the more he announces the rational justification, the better, but that doesn't concern the reviewability of what he does if he has inherent power to do it.
I. H. Wachtel: That's correct. The -- the point we want to make, if Your Honor please, is that assume that a member of Congress or assume that a judge of the Court of Appeals or the District Court was derelict in his duty, we submit to Your Honor that under the President's power to execute the laws of the land, he has no right to do anything about removing such officials. So that, I think we get back to the very fundamental issue which we had thought has been clearly decided in the Court of Claims. And from the nature of the Government's brief in our position for our petition for cert, that would not be argued here, and that is precisely what is the nature of the agency that we have here. For if this a agency is performing a function which comes within the scope of the President's duties to execute the laws of the land. If what this Commission was doing was discharging or effectuating the President's power, we say to you, then the President should have had the right to remove this man. And if Congress attempted to restrict him than under the Myers case, he was such a purely executive officer as to whom the President possessed unrestrictable power of removal. But we submit to you that from the very founding days of our Government, this function, this power which the petitioner and the other members of the Commission were discharging and effectuating what traditionally and classically legislative and judicial function. If we look at the atmosphere that existed in 1945 and in 1946 when the Congress was considering this legislation, we can understand better what Congress had in mind here. Here was a powerful country, for the second time in its history, its territory was invaded by a foreign power. Its nationals and citizens were imprisoned, their property taken, Government buildings taken, moneys, assets, credits, life, liberty taken away from them. New concepts existed, series of genocide, war guilt, war criminal. In this atmosphere, the Congress realized and recognized that it had an entirely different situation than it had ever had in the history of the country, except perhaps in a small degree during the war of 1812. The Congress was aware of the long history, starting with the French attacks on American commerce during the Napoleonic wars. The Spanish claims in Florida. The Mexican claims in the War of 1848, the claims of the Spanish-American War, the War of 18 -- the War of 1917. In each instance, Congress to some degree was confronted with what to do for its citizens and national who had suffered to a larger extent or to a larger degree than anyone else from the rigors of war. In many respects, the situation at the World War II is similar. But in the scope, in the nature of the claims that it was confronted with, it was an entirely new problem. When the executive branch of the Government settled with the French and received substantial sums of money after the Napoleonic wars for damage, not to property of the Government as a government, but the property of its citizens. The Congress took the money and put it in the treasury. And then through one hearing after another, it took the position that it held no legal or equitable obligation to refund or repay this money to its citizens. It was not until many years later, long after the United States Court of Claims had been established that the Congress delegated to the United States Court of Claims the responsibility for hearing and determining a right which the Congress had created. The amount of money that a given individual or company was entitled to receive out of the treasury of the United States. It did the same thing with the Spanish foliation claims after the incident in Florida. It did precisely the same thing after the Mexican War. It did substantially the same thing after the Spanish-American War, except that instead of delegating the determination of these rights to the Court of Claims, it set up commissions. After the Civil War when it had received a very substantial settlement from the British Government for the activities of the Alabama and other vessels who raided during the Civil War, it set up by special Court of Alabama Claims Commissioners, appointed by the President to serve for a given term, to perform this given function. When we come, however, to World War I, we find a little different situation. There, we find a commission appointed not to determine which national or which citizen shall receive or be entitled to obtain any of this money, but a commission which had to determine first the extent and nature of the liability of Germany. In that event, a Mixed Claims Commission was set up, and as Government counsel points out, it had a very unfortunate history. It took many, many years. Many disputes and many arguments before any resolution was made and in fact, there -- maybe some claims still pending. Therefore, when the Congress of the United States in 1946 was again confronted with this problem, it immediately recognized not only the many difficulties it had had in the past, but the magnitude of this problem. It realized that if it attempted to sit down as it had prior to the Reorganization Act, and act -- and pass on every claim that came before it to be reimbursed for a house that was damaged, a hospital that was ruined, for a church building that had been destroyed, that the Congress would never get its work done. It realized the complexity of this -- of this problem. As a matter fact, it didn't even know how to define war claims. And in its report supporting this legislation, it specifically said that it left the very definition of war claims to this body which it was creating. It therefore, when it would set up the War Claims Commission, had two basic functions in mind. It first wanted a framework of facts within which it could make this basic determination. The political question is how to go from there was the traditional function of Congress. When the House originally adopted the legislation and sent it to the Senate, it contained nothing more than a provision for creation of a commission which would find the facts, which would classify the claims and make recommendations to the Congress. It was in the Senate of the United States that the need for honoring certain categories of Claims were manifested. And it was -- as a result of the action of the Senate, that this body was clothed with the additional function of adjudicating these claims according to law. It is this type of body performing these functions which we urge to the Court are entirely legislative, are entirely judicial in function. And I'd like parenthetically to say when I urge that they are judicial in function, I am not talking of the judicial power under Article 3 of the Constitution. I am talking instead of the judicial function of a legislative court, of the Court of Claims, which basically is adjudicating only those claims for which Congress has created a right and a remedy. I suggest to -- say to the Court that this is the type of agency that we have here. The functions that it was performing were not traditionally the functions of the executive branch. The duties imposed upon it by Congress in the past were always performed by these independent bodies. In this context then, can we say that there is a provision in the Constitution, from which can be spelled out or implied the necessity and the duty for the President to interfere in the work of that agency?
Earl Warren: We recess now, Mr. --