# Wiener v. United States

> United States Court of Claims · July 12, 1956 · 142 F. Supp. 910

URL: https://www.frixlaw.com/law-library/cases/8591404

## Case

- **Full name:** MYRON WIENER v. United States
- **Court:** United States Court of Claims
- **Decided:** July 12, 1956
- **Citations:** 142 F. Supp. 910; 135 Ct. Cl. 827; 1956 U.S. Ct. Cl. LEXIS 185
- **Precedential status:** Published
- **Opinion:** Dissent by Whitaker
- **Judges:** Ghief, Jones, Laramore, Littleton, Maddest, Whitaker
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8591404

## Opinion text

Whitaker, Judge,
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 *836 Congress did not limit Ms power of removal: I say he has no power of removal of a quasi-legislative or quasi-judicial officer unless Congress confers this power on him. I say it is not a matter of limiting the President’s power, because he did not have such power to begin with. If the power is not conferred by Congress, then the power does not exist.
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 *837 Congress did not confer the power, the President did not hare the power.
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,
*839 7. Upon the reconvening of the Congress, the President, on February 15,1954, sent to the Senate the nominations of Kaymond T. Armbruster, Whitney Gillilland, and Mrs. Pearl Carter Pace to be members of the War Claims Commission. The Senate did not confirm said appointments by the date of abolishment of the War Claims Commission.
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 *840 legal and constitutional authority and, therefore, was null and void and of no force and effect. The writ was issued and hearing was had upon respondents’ motion to dismiss or in the alternative for summary judgment. On March 30, 1954, Judge Edward M. Curran, United States District Judge for the District of Columbia, in accordance with his opinion of March 25,1954, that the act of the President in removing the relator, Myron Wiener, as a member of the War Claims Commission was valid and constitutional, ordered that the writ in the nature of quo warranto be quashed and the action be dismissed. An appeal was taken to the United States Court of Appeals for the District of Columbia but said appeal was dismissed by stipulation of the parties inasmuch as the abolishment of the War Claims Commission under Reorganization Plan No. 1 of 1954 had rendered the action moot.
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 *841 as first class. Plaintiff signed the documents tendered to bim at Mormugao in the knowledge that he would have to pay his own passage to the United States.
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 *842 total cost of operation of Gripsholm from Mormugao to New York. All passengers aboard the Gripsholm were charged the same passage and the accommodations were allotted on a humanitarian basis, taking into consideration the age, physical condition and sex of the respective passengers. The payment for the Gripsholm was made by the Department of State through the War Shipping Administration. The United States Government made no profit on the operation of the Gripsholm and the repatriation of plaintiff and others.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8591404. Public record. Not legal advice.