Brief for the Respondents in Opposition — Seiden v. Larson

BESTE PEE SEP OY ET AU GE PEER mt

RII Pty gene, Soret nc te Ac aaa See ee are

I iirc se 0 Gok oS nieve Setanta oe a eoccaeeares

MEMIIERTLWAIRU ORE tee et ares Blanton eae Uy aru ed Moin an

ABS eR Ae ne reg ee Wine Sarr atari) apa are em a at Wines Se 2

NIE eS ar yaa cde. Wh tas der oes bia teers See NS Ste

SEEN obese oss att acta kes Wile. t ink oldie tte «peel

CITATIONS

Cases:

Arenas v. United States, 322 U. S. 419................

AOE Nc PWG sy eee Cie 050 DE 5s os) os cc die s jaeheves

Larson v. Domestic ¢& Foreign Corp., 337 U.S. 682......

Mine Safety Co. v. Forrestal, 326 U. S. 371............

Minnesota v. Hitchcock, 185 U. S. 373.................

meortssow Vs Work; 200 U, 3. 468. co ek ek Svcs

Payne v. Central Pac. Ry. Co., 255 U. S. 228............

Riverside Oil Co. v. Hitchcock, 190 U. S. 316....

Santa Fe Pac. R. R. Co. v. Fall, 259 U. 8. 197

Securities and Exchange Commission v. Chenery Corp.,

ALES S At al alee eh Reon i SPM th Ne 7 Ua een

United States v. Idaho, 298 U. S. 105.............

Wilbur v. United States, 281 U. S. 206.. pees

OMe Va TEWUOR At OD. BOO. 5. ocak che aw eeeacan

Statutes:

Federal Property and Administrative Services Act of

June 30, 1949, 63 Stat. 399...............

Surplus Property Act of October 3, 1944, 58 Stat. 765,

as amended by the Act of August 7, 1946, 60 Stat. 886:

=

ocovovvuveoco

Section 23 (50 U.S.C. App. 1632)............ 3, 4,10, 11

Section 34(b) (50 U.S.C. App. 1643)..........

Administrative Procedure Act of June 11, 1946, 60 Stat.

Bot, OW BOON. ogee wae

4,11

10

SOOT ais 2 a 24 onowrerta RE ALP HE SANS BERT ID ARDC DIMER LOK ST ANIME RE,

Gnthe Supreme Court of the United States

OcToBER TERM, 1950

’

No. 698

FRANK SEIDEN, MILTon SEIDEN AND LEON SEIDEN

’

PETITIONERS

’

v.

Jess Larson anp Pau L. MATHER

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DIS-

TRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The district court did not write an opinion. The

opinion of the Court of Appeals (R. 75-82) is not

yet reported.

JURISDICTION

The judgment of the Court of Appeals was

entered March 15, 1951 (R. 83). The petition for

a writ of certiorari was filed April 25, 1951. The

jurisdiction of this Court is invoked under 28

U.S.C. 1254 (1).

(1)

Set oe eet TNS sis

CE SRE ERT yy aT aT ee oe ee ae ee ii at SC at te a a ik ae a ote

EASIER gi Me alee ohag oi 9 atl TES LS EE A EE et at oie : :

2

QUESTIONS PRESENTED

Fee title to property owned by petitioners was

acquired by the United States during World War

If for naval purposes. Part of the property was

sold to petitioners pursuant to the Surplus Prop-

erty Act of 1944 asamended. This suit relates to

the remaining portion of the property which was

a golf course at the time of acquisition, upon which

some $4,000,000 had been expended by the United

States in construction of roads, streets, barrack

buildings, service buildings, ete., and which is now

used for veterans housing. The questions pre-

sented are :

1. Whether institution of a suit seeking, in effect,

to compel conveyance of this property to peti-

tioners constitutes an attempt to sue the United

States without its consent.

_ 2. Whether the administrative determination

that this property was not subject to the preferen-

tial repurchase right given to former owners by the

Surplus Property Act was plainly erroneous.

3. Whether the fact that petitioners had as-

serted such repurchase right prior to December

31, 1949, empowers the courts now to direct recog-

nition of such right despite repeal of the Surplus

Property Act by the Federal Property and Ad-

ministrative Services Act of 1949 with the proviso

that ‘‘all priorities and preferences * * * shall

continue in effect * * * until December 31, 1949,”’

3

STATUTES INVOLVED

The Surplus Property Act of October 3, 1944,

58 Stat. 765, as amended by the Act of August 7,

1946, 60 Stat. 886, provided:

Section 23 (a) (1), 50 U.S.C. App. 1632 (a)

~

(1) The term ‘‘real property”’’ means prop-

erty consisting of land, together with any fix-

tures and improvements thereon (including

hotels, apartment houses, hospitals, office

buildings, stores, and other commercial

structures) located outside the District of

Columbia, but does not include (A) commer- °

cial structures constructed by, at the direction

of, or on behalf of any Government agency,

(B) commercial structures which the Admin-

istrator determines have been made an integral

part of a functional or economie unit which

should be disposed of as a whole, and ( C) war

housing, industrial plants, factories, airports,

airport facilities, or similar structures and

facilities, or the sites thereof, or land which the

Administrator determines essential to the use

of any of the foregoing; * * * [ Italics

supplied ]

* * x * *

Section 23 (¢), 50 U.S.C. App. 1632 (e)—

Immediately after the reporting of surplus

real property to the Board under section 11,

the Board shall classify such property as agri-

cultural, grazing, forest, mineral, or otherwise.

as it may deem advisable. The classification

4

may be revised from time to time. The classifi-

cation of property by the Administrator (in-

cluding the determination of whether property

is ‘‘real property’’ as defined in this section)

shall be based on the highest and best use of

the property at the time it is reported as

surplus property regardless of its former

character or use.

* * * * *

Section 23 (d) (1) (A), 50 U.S.C. App. 1632

(d) (1) (A)—

(d) (1) (A) In the case of any surplus real

property which was acquired by any Govern-

ment agency after December 31, 1939, the per-

son from whom such property was acquired

shall be given notice, in such manner (which

may include publication) as the Board by

regulation may prescribe, that the property is

to be disposed of by the United States and

shall be entitled to purchase such property, in

substantially the identical tract as when ac-

quired from such person, at private sale at any

time during the period of ninety days follow-

ing such notice: Provided, That such period

shall be extended in any case when it appears

that such extension is necessary or appropri-

ate to facilitate the sale of any surplus real

property under this subsection.

* * * * *

Section 34 (b), 50 U.S.C. App. 1643 (b)—

Nothing in this Act shall impair or affect the

provisions of * * * Public Law 849, Seventy-

5

sixth Congress, as amended, respecting war

housing and facilities; * * *

* * ‘ * * * *

Section 502(a) of the Federal Property and Ad-

ministrative Services Act of June 30, 1949, 63 Stat.

399, provides:

There are hereby repealed—

(1) the Surplus Property Act of 1944, as

amended (except sections 13 (d), 13 (g), 13

(h), 28, and 32 (b) (2), and sections 501 and

502 of Reorganization Plan Numbered 1 of

1947) : Provided, That, with respect to the dis-

posal under this Act of any surplus real estate,

all priorities and preferences provided for in

said Act, as amended, shall continue in effect

until 12 o’clock noon (eastern standard time),

December 31, 1949;

STATEMENT

This suit was instituted by complaint filed De-

cember 29, 1949, for injunctive relief against offi-

cials charged with the disposal of surplus prop-

erty. The case was dismissed upon motion for sum-

mary judgment. The facts, as they appear from

the complaint and affidavits submitted in connec-

tion with the motion, may be summarized as fol-

lows:

In 1942 petitioners owned a 169-acre tract on

Long Island, New York, upon which they operated

a resort hotel, golf course, swimming pools and the

like (R. 3). Lido Road, in substance, bisected the

6

property, some 5414 acres south of the road con-

taining the hotel and some 115 acres north of the

road being primarily used for the golf course —

(See chart opposite R. 28). Condemnation pro-

ceedings were instituted on behalf of the Navy De-

partment which culminated in a final judgment in

1945, resulting in acquisition of fee title to the

land and improvements and also in the acquisition

of furnishing and equipment, $1,300,000 being paid

petitioners for the fee title and $232,500 for its

use between 1942 and 1945 (R. 40, 57). During

occupancy by the Navy some improvements were

made to the hotel but most of the changes, amount-

ing to more than $4,000,000, represented the con-

struction of barracks, administrative buildings,

streets, highways and similar installations on the

former golf course area (R. 41, 58).

After hostilities ceased, the Department of the

Navy issued a permit to the Federal Public Hous-

ing Authority covering some of the property north

of Lido Road and the Authority in turn contracted

with the New York State Division of Housing for

use of the property for veterans emergency hous-

ing (R. 42). That organization converted the

barracks, buildings, ete., into structures suitable

for family use and the housing project is still in

operation (R. 42, 70-72).

The entire property was declared surplus by

the Department of the Navy in May 1947 and

turned over to the War Assets Administrator, sub-

ject to the housing permit mentioned above (R. 41,

7

56-61). The portion of the property south of Lido

Road containing the hotel and beach was classified

as ‘‘Commercial Section 23”, meaning property

to which the preference right to repurchase given

by the Surplus Property Act applied, and this

property was sold to petitioners (R. 43-44). The

property north of Lido Road was classified ‘‘Non-

Section 23—Real Property (War Housing)”

meaning that the former-owner priority did not

apply because that priority does not apply to ‘“‘war

housing * * * or similar structures and facilities,

or the sites thereof, or land which the Adminis-

trator determines essential to the use of any of the

foregoing ;’’ (supra, p. 3) (R. 438, 63). In 1949

some 39 acres of the Jand north of Lido Road was

conveyed to a local school district pursuant to-the

provision of section 13 of the Surplus Property

Act relative to disposal of property for educational

uses (R. 45).

In July 1949 petitioners asserted a ‘‘former-

owner”’ priority to purchase the land north of Lido

Road, and correspondence was exchanged, a hear-

ing was had before the General Board, War Assets,

General Services Administration, resulting in re-

affirmation of the conclusion that the land was

‘“Non-Section 23’’ real property (R. 21-27, 44).

On December 21, 1949, an advertisement was made

soliciting bids until January 10, 1950, subject to

the existing occupancy for veterans housing (R.

9-10).

8

This suit was instituted December 29, 1949, seek-

ing an injunction against the receipt of bids or the

taking of any other action directed to transferring

title to anyone except petitioners; against permit-

ting anyone to occupy the premises in a manner

which would deprive petitioners of their alleged

right of immediate possession; and against classi-

fying the property as free of the alleged priority

under Section 23 of the Surplus Property Act (R.

5-7). The trial court dismissed the complaint (R.

55). The Court of Appeals affirmed on the grounds

that this proceeding constituted an attempt to sue

the United States without its consent (R. 77-79)

and, alternatively, that the administrative conclu-

sion was not a capricious exercise of power (R. 79-

82). It found it unnecessary to decide whether as

a result of the termination of priorities on Decem-

ber 31, 1949, petitioners lost whatever standing they

had to prosecute this suit (R. 77, fn. 8).

ARGUMENT

1. Recognizing that the purposes to be served -

by the system of priorities and preferences relat- |

ing to surplus property resulting from World War

II had been accomplished, Congress terminated

those priorities on December 31, 1949. It is thus

plain that the issue whether such priority was er-

roneously denied in the instant case does not pre-

sent an important question warranting review by

this Court. Moreover, the decision below is clearly

correct.

—_7_

9

2. Title to the property here involved is

admittedly in the United States. And, as the

court below stated (R. 79), the ultimate relief

sought by petitioners, while expressed in nega-

tive terms, is conveyance of the property to

them. It is settled that such a proceeding con-

stitutes a suit against the United States. Min-

nesota v. Hitchcock, 185 U. S. 373, 388; Mine

Safety Co. v. Forrestal, 326 U. 8. 371; Morrison v.

Work, 266 U. S. 481. The language of Larson v.

Domestic d& Foreign Corp., 337 U. 8. 682, concern-

ing ‘‘common law wrongs”’ (Pet. 7), does not aid

petitioners since the court was there discussing

cases where the plaintiff claimed title and hence,

absent justification of governmental authority, the

defendant officers would be committing a trespass.

Petitioners rely (Pet. 8-10) upon cases such as

Santa Fe Pac. R. R. Co. v. Fall, 259 U.S. 197, and

Payne Vv. Central Pac. Ry Co., 255 U.S. 228, where

relief was available by means of mandamus because

the Government officer was under a ministerial

duty to dispose of government property in a par-

ticular manner. As will more fully appear from

our discussion of the merits, infra, this case pre-

sents a situation where the administrative officer

is vested with discretion and his determination is

not plainly wrong. In such cases mandamus does

not lie. Walbur v. United States, 281 U. S. 206,

218-219; Work v. Rives, 267 U.S. 175, 177-178; Hall

Vv. Payne, 254 U.S. 343, 347-348; Riverside Oil Co.

10

v. Hitchcock, 190 U. S. 316, 324-325. Petitioners

approach this case as if Congress had granted ju-

dicial review of the administrative determination.

Thus, they rely on Securities and Exchange Com-

mission V. Chenery Corp., 318 U.S. 80 (Pet. p. 24)

and United States v. Idaho, 298 U.S. 105, where the

statutes specifically provided for judicial review.’

The limited nature of review of determinations re-

lating to the disposal of surplus property is em-

phasized by the fact that such determinations were

excluded from the operation of the judicial review

provisions of the Administrative Procedure Act

of June 11, 1946, 60 Stat. 237, 5 U.S.C. 1001(a).

3. The exclusion of this property from the ‘‘for-

mer owner”’ priority was clearly proper. The Sur-

plus Property Act (sec. 23(c)) vested in the Ad-

ministrator the duty of classifying surplus prop-

erty ‘‘including the determination of whether prop-

erty is ‘real property’ as defined in this section”’.

The administrative discretion was further empha-

sized by the provisions that the classification ‘‘shall

be based on the highest and best use of the property

at the time it is reported as surplus property

regardless of its former character or use’’ and

that the classification ‘‘may be revised from time

to time’’.. This property, though originally a

golf course, had been improved through the ex-

1 Arenas v. United States, 322 U. S. 419 (Pet. p. 24) was a

suit brought under a special act vesting the courts with juris-

diction over the subject matter.

11

penditure of some $4,000,000 by housing struc-

tures. At the time it was declared surplus in

1947 and when the classification was reviewed

in 1949, it was occupied for housing veterans

and their families. As the court below concluded

(R. 82), the conclusion that the term ‘‘war

housing * * * or similar structures and facilities”’

included this property ‘‘would seem to be well

founded’’. -.

Petitioners’ attack upon the administrative con-

clusion is based almost entirely on a very narrow

reading of the term ‘‘war housing’’ as housing

constructed under the Lanham Act (Pet. 20-23).

Such a view would simply read the phrase “war

housing”’ out of section 23 of the Surplus Property

Act since section 34(b) of the Act excluded Lanham

Act housing from all the provisions of the Act.

And, as the court below noted (R. 81, fn. 14), a

substantial amount of housing for defense and war

purposes was constructed under statutes other than

the Lanham Act. With the many facets of the sur-

plus property program in mind (cf. R. 80), the ex-

clusion of the property north of Lido Road from

the former-owner priority was clearly correct.’

* Petitioners now say that they do not seek to curtail the

occupancy for veterans housing (Pet. 4). However, in their

complaint (R. 4-5) they alleged that such occupancy was

contrary to the Surplus Property Act and that they were

entitled to immediate possession and such is the logical result

of acceptance of their argument. And although not directly

involved in this case, their argument would, it seems, as alleged

in the complaint (R. 4), likewise invalidate the conveyance to

the local school district.

ARP hel a canite iy shakes SRA Manele asa Res yaa lam aaa,

12

4, While this issue was not found necessary to

the decision below, it is clear that petitioners now

have no priority rights to purchase this govern-

ment property. In an unambiguous provision,

Congress terminated ‘‘all priorities and prefer-

ences’? on December 31, 1949. No exception was

made for cases where an alleged right had been as-

serted either in administrative proceedings or in

the courts. Former owners are now in the same

position as any other prospective purchaser of the

property.

CONCLUSION

The petition for a writ of certiorari should he

denied.

Respectfully submitted,

Puiuir B. PERLMAN,

Solicitor General.

A. Devitt VANECH,

Assistant Attorney General.

Roger P. MArQuIs,

Attorney.

May, 1951.

¥ U. S. GOVERNMENT PRINTING OFFICE: 1951 945910 oz

oo

$=

t MAY 28

4 IN THE as

Supreme Court of the Huited| States

Ocroser Term—1950

No. 698

FRANK SEIDEN, MILTON SEIDEN and

LEON SEIDEN,

Petitioners,

against

JESS LARSON and PAUL L. MATHER,

Respondents.

On Petition For Writ oF CERTIORARI TO THE UNITED StaTES

Court oF AppEeALs For THE District or CoLUuMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

NorMan WINER,

ALFRED B. NaTHAN,

Of Counsel.

SS AL RTA EIT PST SES POE ES SEE TI ETS SI AT ETT DOT

JupictaL Printinc Co., Inc., 82 Beekman St., N. Y.—BEekman 3-9084-5-6 B= 182

INDEX

Petitioners’ Reply Brief...........................

SE Le Pe Fe AE OPED AIR A eRe

ee Pe Eee Per rrr y OPI eee ah Pera HL

MESS aU enw ENs sess. o's vce ee

the raa i roeses heey het eee eee

Lge NPR G ppt try Petr ita ALR ED E tech uly pe 3

io a EE Re ya Rng nr JY oan ie Oe 54 hd

ots peg ak ET Te eae Sane ee

CiTaTIons

Payne v. Central, ete. Co., 255 U. S. 228..............

Santa Fe, etc. Co. v. Fall, 259 U.S. 197..............

Statute

Administrative Procedure Act of June 11, 1946,

60 Stat. 237, 5 U. S. C. 1001(a)...................

MISCELLANEOUS

eg ee Ser ee ee ee

IN THE

Supreme Court of the United States

OctToser Term 1950

No. 698

Frank Semen, Mirton Sewen and Leon Szwen,

Petitioners,

against

Jess Larson and Paut L. MaTHeER,

Respondents.

On Petition For Writ oF CerTiIoraRI TO THE UNITED States

Court or Apprats For tue District oF Cotumsia Circuit

> ><a

PETITIONERS’ REPLY BRIEF

The most significant aspect of respondents’ brief in

opposition is its almost complete disregard of the ground

of decision in the Court of Appeals which is the basis upon

which certiorari is sought.

As to the major ground below, namely, that where title

to property is in the United States, relief sought with

respect to the property constitutes an action against the

United States, all respondents have to say (p. 9) is that

“It is settled that such a proceeding constitutes a suit

against the United States’. Of the eight cases cited at

Seite pice see

sient’

San RA

Bs SS eae

2

pages 8 and 9 of the petition specifically granting relief

despite the contention that the suit was against the sover-

eign, respondents do not mention six of them. As to the

other two, the Santa Fe and Payne cases, respondents say

that mandamus was available because the cases involved

‘‘a ministerial duty to dispose of government property in

a particular manner’’ (p. 9). Merely characterizing that

duty as ‘‘ministerial’’ does not distinguish those cases from

the principal case. The duty of the respondents to convey

the government property in the principal case in accord-

ance with the explicit statutory direction was certainly no

less ministerial than the duty to convey the government

property in the Santa Fe and Payne cases in accordance

with the statutes there involved.

In short, respondents fail to meet the issue or to dis-

tinguish the numerous cases in which specific relief has

been granted with respect to property title to which was

in the United States.

As to the alternative ground below, that an error of

law by respondents in construing their own statutory au-

thority makes the case one against the United States, re-

spondents say nothing. And this despite the fact that the

Court below stated specifically that however it might have

determined ‘‘the question in the first instance’’, the case

fell within the Larson doctrine (R. 82).

The object of the brief in opposition is to show that peti-

tioners cannot win on the merits even if they are given a

hearing on the merits. Thus, it is repeated that respond-

ents had the duty to classify surplus property (p. 10) and,

ae

on

3

therefore, had the right to classify this property as ‘‘war

housing.’’ We went into this matter at pages 15 to 23 of

the petition at such length as we believed appropriate in a

petition for certiorari. We pointed out there that what

respondents attempted to do here is not to classify the

property but to re-define a term used by Congress, a term

of common significance, with a legislative history which

does not admit of the distortion sought by respondents.

Therefore, we respectfully submit that if this case were

considered on the merits, the determination below could

not be sustained.

IV

As further support for freedom of action by respond-

ents, it is said that the Administrative Procedure Act of

June 11, 1946, 60 Stat. 237, 5 USC 1001(a), does not pro-

vide for judicial review of the decision of this administrator

(p. 10). There may have been many reasons for this, but

it is evident that one good reason is that the Administrative

Procedure Ac: is designed to cover cases of regulatory

federal commissions and similar bodies which hold hear-

ings, weigh evidence and reach decisions governing the

conduct of citizens. By not providing for such agencies

as this, Congress did not manifest an intent that this

agency or any like it should escape review in the courts

and have arbitrary power whereas regulatory commissions,

which do have forms and procedures amounting to due

process, should be restricted.

Vv

Respondents say that the termination of priorities on

December 31, 1949 is relevant for two reasons: (1) such

rights as petitioners had have been lost, and (2) this is

4

a non-recurrent case which the court is not justified in

reviewing.

The answer to the first proposition is that the rights

of these petitioners were not lost. According to respond-

ents’ own Regulations:

‘“‘Offers from priority holders at their respective

established considerations shall be accepted in the

order of their priority. * * * Disposal agencies

may reject any offer which is below the fair value

of the property other than an offer from a priority

holder for the maximum consideration established

for a transfer to such a priority holder.’’ (Italics

ours.) (13 Fed. Reg. 4736, 4743.)

Thus, before the expiration of the statute, petitioners had

exercised their priority and their offer could not be re-

jected. Here as in the Santa Fe case and in the Payne

case, the rights of petitioners were fully vested before the

termination of the priorities. (This is wholly apart from

such bearing as the wilfullness on the part of respondents

in delaying the advertisement to a time when they thought

petitioners would not be able to exercise their priority,

may have.)

We are not in position to know how many similar cases

there are under this statute or how many there are or

may be under other statutes. But the question on which

certiorari is sought is not limited to the Surplus Property

Act or any other particular act. The ruling of the Court

of Appeals was that this was a suit against the United

States and therefore that the merits cannot be reached.

That, as we have demonstrated in our petition, is a recur-

rent question and one which is of wide general importance.

VI

Finally, respondents, at no fewer than three places

(pp. 2, 6 and 11), point out that the United States spent

some $4,000,000 on this property. The fact is that the

property was not improved by the expenditure any more

than the country was enriched by the millions of dollars

expended on exploded and unexploded shells during the

war. Respondents did not bring to the Court’s attention

the fact that the record shows, without dispute, that the

expenditures by the United States have resulted in a

decrease, rather than an increase, in the land value (R.

34, 38).

That this statement by petitioners’ expert was sound

was borne out when the bids were subsequently opened

and it was found that the highest legitimate bid, apart

from petitioners’ bid, was $91,500 for the land on which

the United States had expended these $4,000,000 (R. 48).

Of course, petitioners’ bid of $125,000 took into account

the special value of the land to petitioners,

Conclusion

It is respectfully submitted that the brief in opposition

has completely avoided the issue of whether this Court

should review the holding that this is a suit against the

United States. It is respectfully submitted that the de-

cision below is contrary to the decisions in numerous cases

decided by this Court, cases which respondents do not

even attempt to distinguish. Respondents’ arguments that

certiorari should not be granted because, in any event,

respondents would be sustained on the merits, cannot be

properly considered on this petition where the matter can-

not be fully explored; but we respectfully submit that there

'

is

g

PP en te a ‘

PSE DIE Seer ein ba ene

aR te

Bitte ec shee ayy SA I aa A Na Be

6

is no reason to believe that respondents are right on the

merits; on the contrary there is every reason to believe

that they are wrong. Respondents have wilfully brought

petitioners’ property into a statutory definition which can-

not possibly include that property. Under respondents’

own Regulations petitioners’ offer to repurchase in ac-

cordance with the statute was an offer which could not be

rejected and thus vested and survived the lapse of the

statute.

The question before the Court—presented by the adju-

dication below—is whether this is a suit against the United

States. That is the only question resolved by the Court

of Appeals. We respectfully submit that this question

should be determined here.

Respectfully submitted,

May 25, 1951.

Norman WINER,

AuFrrep B. NaTHan,

Counsel for Petitioners.