Pan American World Airways, Inc. v. United States

WHITAKER, Judge

(dissenting).

I agree that we have jurisdiction in this case because under the Judicial Code, approved March 3, 1911, and under the 1948 revision thereof, 28 U.S.C. § 1491 , this court has jurisdiction of a claim founded upon an Act of Congress. The 1911 Act gave this court jurisdiction of “all claims (except for pensions) founded upon the Constitution of the United States or any law of Congress * * The 1948 revision gave it jurisdiction of “any claim against the United States * * * (2) Founded upon any Act of Congress”. There is, of course, no substantial difference in the two Acts.

I do not think there can be any douor that this case is founded upon an Act of Congress. It involves an interpretation of the Immigration Act of February 5, 1917, 39 Stat. 811 . The Commissioner of Immigration thought that under that Act he had the right to assess carriers with detention expenses of immigrants who turned out to be citizens, and he issued regulations accordingly. The plaintiff says the Act did not authorize the assessment of detention expenses in the case of people who turned out to be citizens.

The regulation of the Commissioner of Immigration is valid only if it is authorized by an Act of Congress. Consequently, the question before the court is the proper interpretation of that Act. Does the Act authorize the assessment against the carriers of these expenses in the case of citizens, or does it not? Since the controversy is over the proper interpretation of an Act of Congress, plaintiff’s claim is certainly “founded upon an Act of Congress.”

We went into this matter in detail in the case of Clapp v. United States, 117 F.Supp. 576 , 127 Ct.Cl. 505 in which decision I then concurred, and in which I now concur.

I do not agree that plaintiff is not entitled to recover, for the reason that there is no authority of law for the assessment against carriers of the expense of detention of persons arriving in this country who claim to be citizens and who turn out to be citizens.

The Act of February 5, 1917, 39 Stat. 881 , authorizes the assessment against the carrier of such expenses only in the case of aliens. It does not authorize such assessment in the case of citizens who are detained until their citizenship can be determined, or who are detained for any other reason.

The regulation of the Immigration and Naturalization Bureau providing for the assessment of detention expenses in such cases is an extension of the Act of February 5, 1917. It goes beyond the terms of that Act. It was not authorized by that Act and is, therefore invalid. No Bureau or Department can make laws. Congress did not see fit to authorize the assessment of expenses against the carriers in such cases, and it is beyond the power of any Bureau or Department to do so.

Notwithstanding the long continuance of assessments in such cases, when Congress finally came to reconsider the law applicable to the immigration and' naturalization of aliens, it expressly prohibited the assessment of detention expenses in the case of citizens. See the Immigration and Nationality Act of June 27, 1952, 66 Stat. 163 , effective December 24, 1952.

The majority opinion says that the acquiescence of the carriers in the assessment against them of these charges “is strong evidence of the reasonableness of the Government’s interpretation of the 1917 Act.”

I do not think the record justifies the statement that the carriers acquiesced in the assessment of these charges. In fact, it is silent as to whether or not other carriers made protest against it and sought to avoid it. However the record leaves no doubt that this plaintiff from the very beginning of its operations as an overseas carrier protest *688 ed against the assessment of these charges. See affidavits of Jack P. Peak and John A. Paine.

I do not question the “reasonableness” of the charges; in fact, I think it was just as reasonable for the Government to assess such charges against the carrier in the case of a person of doubtful citizenship claiming admission to this country as it was in the case of an alien claiming admission; but that is beside the point. The point is: Did Congress authorize the assessment of such charges. If it did not, they cannot be assessed, however reasonable the assessment might be. It seems obvious to me that Congress did not authorize it.

I dissent because this is a government of laws, to be enacted by Congress, and not a government of bureaucratic decrees.

Defendant also says that this plaintiff acquiesced in these charges; in other words, it says that the payments were voluntary. This position cannot be justified under the authorities. See in particular Swift Co. v. United States, 111 U.S. 22 , 4 S.Ct. 244 , 28 L.Ed. 341 ; and United States v. Wilson, 168 U.S. 273 , 18 S.Ct. 85 , 42 L.Ed. 464 . These cases are specifically in point. The same principle upon which the Swift and Wilson cases were decided also governs the decision in Baldwin v. Scott County Milling Co., 307 U.S. 478 , 59 S.Ct. 943 , 83 L.Ed. 1409 . That principle is that where the Government insists upon payment as one authorized by law, and where severe penalties, either economic or legal, are incurred for nonpayment, the payment cannot be considered voluntary.

This case is submitted to us on the question of liability. In my opinion, our judgment should be that plaintiff is entitled to recover such amounts as it paid for detention expenses of immigrants who were later determined to be citizens, reserving judgment until the amount thereof can be determined.

For these reasons I respectfully dissent.