holding that United States government’s failure to recover compensation from U.S.S.R. for Soviet appropriation of U.S.-owned factory in East Germany after World War II was not a taking, as government acted within applicable law to maintain national interests
How later courts described this case
- holding that United States government’s failure to recover compensation from U.S.S.R. for Soviet appropriation of U.S.-owned factory in East Germany after World War II was not a taking, as government acted within applicable law to maintain national interests
- “However, it seems to be generally well-accepted that the mere cessation of hostilities does not necessarily terminate the war power. The war power continues past the end of hostilities and into that period during which the evils which gave rise to the hostilities are sought to be remedied.” (citations omitted)
- government must have deprived owner of interest in property under United States Constitution
- “All that really needs to be said about the Gray case is that the opinion by the court was strictly an advisory opinion which was not binding upon either of the parties and cannot be binding upon subsequent courts.”
Written by the judges who cited it.
The opinion
NICHOLS, Judge
(concurring).
I join in the judgment of the court and in the opinion except where it is inconsistent with what follows.
Plaintiff cites and relies heavily upon Gray v. United States, 21 Ct.Cl. 340 (1886). This is one of the most interesting and able decisions of our predecessors on the subject of Fifth Amendment takings, and respectfully I do not agree with the court’s handling of it. True, i,t was an advisory opinion only. The alleged taking occurred in 1800, and was never within our jurisdiction to adjudicate. The Congress, until recently, often requested advisory opinions of this court and they were furnished, as in Gray . Such opinions of course were not “binding” but I never supposed that lawyers were not to invite attention to them as precedents. That is all plaintiff seeks to do here. Moreover, the Congress chose to enact relief legislation pursuant to our advice ex gratia, without fully accepting our Fifth Amendment theory or rejecting it either. The quoted language of the Supreme Court in Blagge v. Balch, 162 U.S. 439, 457 , 16 S.Ct. 853 , 40 L.Ed. 1039 (1896) points this out, but I do not read it as expressing any disapproval of this court’s position concerning the Fifth Amendment.
For a full appreciation of the logical structure the Gray opinion erects, there can be no substitute for reading it, but the following summary is attempted. In 1778, seeking to obtain the French alliance that ultimately made possible the victory at Yorktown, our Government made various promises by treaty. Among them was one that we would thenceforward defend the French West *1396 Indian possessions against attack by any other power. In the wars of the French Revolution and Empire commencing in 1793, the British attacked and captured several of those possessions without our Government's lifting a finger. There were doubtless good reasons for this, but the impression in Paris was painful. Our merchant shipping during the time of those wars was large, and it was for the most part undefended. Many American ships were taken by the combatants, some in the exercise of lawful belligerent rights, some otherwise. The French captured maybe more than their share. The “quasi-war” with France was an effort to give our flag afloat some protection against the French. In 1800 we sent a delegation to Paris to negotiate outstanding differences. They brought up the “French Spoliation Claims”, as they were always afterwards called, for lawless captures of shipping. The French responded with their complaint that we had not observed our 1778 commitment, a grave breach of faith as they viewed it. It looked as if this albatross would hang from our national neck from that time onward unless a release was purchased. Having nothing else to purchase it with, our negotiators used the Spoliation claims. A treaty surrendering them and releasing our 1778 promise was duly made and the Senate ratified it in due course.
This court considered that under international law many of the claims were valid and would eventually have been honored. Similar claims against other countries were, in fact, settled and paid by them, as were claims against France herself that accrued after 1800. The holders of certain particular claims were thus singled out to make a sacrifice for the general good that was not required of others similarly situated. We held that their property had been taken without just compensation.
Many statesmen of the generation that wrote the Bill of Rights were of the opinion that a Fifth Amendment taking had occurred. A smaller number were of a contrary view. The matter was agitated but progress towards its resolution was not made until the Congressional request to this court for an advisory opinion, in 1885.
It would appear as an unspoken major premise that claimants were able in 1800 to invoke canons of international law that were generally agreed upon, canons which no important maritime nation would put itself in the position of repudiating. These assumptions still stood as valid in 1886. The retreat of law from the oceans has been since then, so precipitate, that it is difficult for us now to put ourselves into the state of mind of the Gray court, but to understand the decision we must do so. To apply it as a precedent today, we must consider to what extent conditions have changed and to what extent they remain the same.
Gray .thus appears to me to teach a technique rather than a rule. To follow it, we would have to piece together the historical elements, patiently and carefully, item by item, as the Gray court did, until finally a structure stands that is or is not recognizable as a Fifth Amendment taking. Plaintiff has not undertaken to show us how to do this. It seems to imagine that every decision of our Government for whatever reasons not to try to protect the property of United States citizens against spoliation abroad, is a Fifth Amendment taking. The Gray court would have been the first to repudiate such a notion and the whole course of its reasoning is to .the contrary. This court today quotes John Quincy Adams to good effect a passage used with approval as the court says in Adams v. United States, 23 Ct.Cl. 226, 253 (1888). It remains to add that the same Judge, John Davis, was the author of both the Gray and Adams opinions. From this fact, with the nearness in time, we may be sure that the then Court of Claims saw no conflict between the quotation and its holding in Gray , and indeed there is none.
It appears to me that to satisfy the Gray court, plaintiff here would have had to show as a minimum (a) that the acts of the USSR in seizing United *1397 States owned plants in East Germany as “reparations” were contrary to international law, (b) that the USSR’s authorities would sooner or later have acknowledged the fact and paid compensation to the United States owners, and (c) that the United States representatives at Potsdam knowingly surrendered this possibility of compensation in return for concessions by the USSR in unrelated areas. Plaintiff has not even demonstrated proposition (a), still less the others.
I do not agree that the Gray decision is any kind of cloud or embarrassment on the decision we reach today, and therefore I see no need to consider if it was correctly decided. If it was, and should be regarded as a valid precedent, the decision we reach is not altered.