Kondo v. Katzenbach

TAMM, Circuit Judge:

I

Presented to us in these cases, consolidated for hearing, is a precise question: Did the District Court correctly dismiss the appellants’ complaints on the ground that the court lacked jurisdiction of the subject matter of the actions because the complaints were not filed within the 60-day limitation period prescribed by section 34(f) of the Trading with the Enemy Act (60 Stat. 925, 50 U.S.C. App. § 34(f)) ? (See Appendix A at 359-360.)

The three actions under review were filed in the District Court in May and July of 1964 and seek to set aside the dismissal by the Attorney General of appellants’ debt claims based upon their deposits of yen in the American branches of the Yokohama Specie Bank, Ltd. Except for the claimant internees or parolees in No. 19,283, appellants are several thousand Americans of Japanese ancestry who, residing in the United States, had, prior to December 7, 1941, made deposits in the American branches of the Yokohama Specie Bank, Ltd. The property in the United States of this Japanese bank was vested as Japanese Enemy Property under the Trading with the Enemy Act, 50 U.S.C. App. § 1 et seq. After liquidation by state superintendents of banks, there remained approxi*353mately $17 million, which was turned over to the Office of Alien Property.

Congress, on August 8, 1946, enacted section 34 of the Trading with the Enemy Act, which authorized the Alien Property Custodian1 to pay from the proceeds of vested property the debts of former owners of the vested' property that were due and owing on the vesting date. Congress excluded from the benefits of this statute, among others, individuals and their successors who had been interned or paroled as potentially dangerous alien enemies under the Alien Enemy Act, 50 U.S.C. § 21.

Acting under section 34(b) of the Trading with the Enemy Act, the Alien Property Custodian fixed November 18, 1949, as the final date for filing debt claims with the Custodian against the funds of the Yokohama Specie Bank, Ltd. Approximately ten thousand debt claims were timely filed, of which some seven thousand, five hundred were based on yen deposits. Appellants in the present cases all filed claims in the amount of their deposits during this period. The aggregate of the claims exceeded the seized assets of the bank, necessitating a processing of the claims under section 34 (f) of the Act relating to insolvent debtors’ estates. Claims of persons who had been interned or paroled under the Alien Enemy Act (50 U.S.C. § 21) were dismissed because of the express provision of section 34(a) of the Trading with the Enemy Act (see Appendix A at 359), which excluded such persons from the status of eligible debt claimants. This action constituted the final disposition under the Act of the claims of the appellants in case number 19,283.

Extensive hearings before an Examiner were conducted, and ultimately, in 1957, the Alien Property Custodian ruled that the claims were allowable at the post-war rate of exchange of 361.55 yen to the dollar under the “Judgment Day” rule of Die Deutsche Bank v. Humphrey, 272 U.S. 517, 47 S.Ct. 166, 71 L.Ed. 383 (1926), since the deposits were payable in yen in Japan. Thereafter, identical registered letters were sent to all eligible claimants,2 numbering some seven thous- and, five hundred, stating that their claim could be allowed at the 361.55 rate and requesting that the claimants’ original yen certificates be submitted to the Office of the Alien Property Custodian. This letter was received by all appellants represented in cases number 19,282 and 19,284. The claims of appellants in case number 19,283 had been rejected initially, as heretofore indicated, and they were not recipients of the letter. A copy of the registered letter appears in Appendix B of this opinion.

Some further summation of the contents of the letter received by the claimants is essential to a consideration of the contentions of appellants in the Honda (No. 19,284) and Kondo (No. 19,282) cases. The letter, in addition to the provisions set forth above, informed these appellants that they might, if they wished, file a statement of their objections to the application of the 361.55, or post-war, rate of exchange. The letter informed claimants that if their original certificates were not submitted within the designated period, or if an explanation of why the certificates could not be submitted was not timely submitted, the claim would be dismissed as having been abandoned. The letter also set forth that a schedule of claimants would be drawn up from the names of persons submitting their original deposit certificates or explanations. Included in the letter was the statement that “[wjithin sixty days after the issue of the schedule any aggrieved claimant may file in the District Court of the United States for the Dis*354trict of Columbia a complaint for review of such schedule, naming the Attorney General as defendant. If no complaint for review is filed, payments will be made in accordance with the schedule.”

Thereafter, one thousand, eight hundred seventeen deposit claims against the Yokohama Specie Bank, for which either original certificates of deposit or satisfactory evidence of loss had been submitted, were allowed at the rate of 361.55 yen to the dollar. Carrying out the provision of section 34(f) of the Act (see Appendix A at 359-360, the Alien Property Custodian prepared and served by registered mail on all claimants (id est, allowed and dismissed claims and including claimants in cases 19,282, 19,283 and 19,284) a Final Schedule of all debt claims allowed and the proposed payment to each claimant. Claimants whose claims had been dismissed, including appellants in the Okamoto case (No. 19,283) were not listed on the Final Schedule. Included with the notice transmitting the Final Schedule to each claimant was the statement:

“Pursuant to Section 34(f) of the Trading with the Enemy Act, as amended, any claimant considering himself aggrieved by this Final Schedule may, within sixty (60) days from the date of the mailing of the Schedule, file in the United States District Court for the District of Columbia a complaint for review of this Schedule, naming the Attorney General as defendant. A copy of such complaint must be served on the Attorney General and on each claimant named in the Schedule. If no such complaint for review is filed within the sixty-day period, payments to claimants will be made by this Office as specified in the Final Schedule.”

A timely complaint for review of the award was brought in the United States District Court for the District of Columbia in 1961 asserting that the claims should have been allowed by the Custodian at the pre-war dollar rate of exchange for yen. This action (Abe v. Kennedy, C.A. 2529-61) was pursued in behalf of all Yokohama Specie Bank yen deposit claimants whose claims had been allowed on the Final Schedule. Proceedings in the Abe case were postponed, however, pending the outcome of a companion case, Aratani v. Kennedy, C.A. 3164-58, which had been filed in 1958 and which related to the yen deposit claims which had been asserted against vested funds of the Sumitomo Bank, Ltd. The chronology and disposition of this case are set forth in the court’s opinion published in 115 U.S.App.D.C. at page 97 and in 317 F.2d at page 161. The opinion affirming summary judgment in favor of the Government certainly invited certiorari, and on October 21, 1963, the Supreme Court granted certiorari, 375 U.S. 877, 84 S.Ct. 147, 11 L.Ed.2d 110. Before disposition by the Supreme Court, however, the Attorney General settled the Sumitomo Bank, Ltd. case on an exchange rate much more favorable to the claimants and simultaneously, or virtually so, settled the yen deposit claims on the Final Schedule of the Yokohama Bank case at a rate approximating a net return to the claimants of 49 per cent of the amount claimed. The settlements were approved in the United States District Court for the District of Columbia on May 18, 1964,3 228 F.Supp. 706. After payment of the settlement sums, about $10 million remains in the Yokohama Specie Bank, Ltd. account in the Office of Alien Property.

Against this background, the identity of the appellants in our present cases comes into sharper focus. In the Kondo (No. 19,282) and Honda (No. 19,284) cases, we have before us several thousand depositors in the Yokohama Specie Bank who, although recipients of the notices heretofore described as issuing from the Alien Property Custodian, declined or failed to file their original deposit certificates with the Custodian. Whatever reasons may have prompted or caused *355this action, these depositors were not listed on the Final Schedule for payment, were not represented in the court action entitled Abe v. Kennedy, supra, and were not included in the settlement effectuated by the District Court approval of May 18, 1964. By actions filed in the District Court in the Honda case on May 19, 1964, and in the Kondo case on July 9,1964, these appellants sought to compel the Attorney General to pay to them on their deposits in the Yokohama Specie Bank a pro rata amount from the funds remaining in the Bank’s vested account upon the same basis as was paid to the claimants in the Abe case. Similarly, in the Okamoto case, No. 19,283, in a complaint filed in the District Court on July 6, 1964, appellants, as depositors in the Yokohama Specie Bank whose claims were disallowed on the ground that they had been interned and paroled as alien enemies, seek a like portion of the remaining vested funds.

The District Court, on March 31,1965, dismissed all three actions on the ground that the court lacked jurisdiction over the subject matter of the actions because they were not commenced within the time set forth in section 34(f) of the Trading with the Enemy Act (50 U.S.C. App. § 34(f)).

II

Appellants in the Kondo and Honda cases contend that the District Court should have invoked equitable estoppel against the 60-day limitation period; that estoppel is applicable to suits arising under the Trading with the Enemy Act; that the sovereign immunity doctrine contains nothing warranting an implied exemption for the Government from the estoppel principle of Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); and exemption from the Glus estoppel doctrine creates a constitutional issue under the just compensation provisions of the Fifth Amendment. We treat first the presentation of these appellants.

Ill

Basing their first argument on a chronological treatment of the events transpiring between December 7, 1941 and March 31, 1965, these appellants argue that the 1958 letter of the Custodian to each claimant was a “discouragement” and “insult” to the claimants, who had waited 17 years for the money seized by the vesting procedure. Concluding that the text of this letter was confusing, insulting and arbitrary, appellants argue that they were not told why their original certificates surrender was being demanded and why only two per cent of their deposits were being refunded, with a resulting inference that a surrender of the original certificate would constitute acquiescence in the two per cent formula and a waiver of further rights of the claimants. Appellants argue that their original certificates constituted their sole tangible remaining evidence of a claim, and because of illiteracy, language difficulties and other similar reasons they were reluctant to take any step which might either result in a loss of their claim or require them to accept a two per cent award. Accordingly, say this group, they awaited the outcome of the Abe v. Kennedy case “reasonably anticipa [ting] that if the two per cent formula which had long been in administrative litigation in Abe were reversed in the court all Yokohama Bank depositors who had filed timely claims under the act which the Government had recognized as valid would be similarly compensated.” Appellants conclude that their refusal to file their original deposit certificates and that their failure to sue or join in a suit while Abe was in litigation was “excusable delay” in view of their reasonable reliance upon the Government to treat them equally with claimants in the Abe case, especially since no prejudice accrued to the Government between 1961 and 1964 as a result of these appellants’ inactivity.

In answer, the appellee points out that these actions arising under the Trading with the Enemy Act are suits against the *356Government. All conditions of the sovereign’s consent to be sued must be complied with, and the failure to satisfy any such condition is fatal to the court’s jurisdiction. Since the provision of section 34(f) of the Act creates a 60-day limitation upon the period in which a depositor may establish his status as a claimant or take other action, failure to meet this condition constitutes a fatal failure to meet a prescribed condition precedent to the maintenance of the action.

There is no doubt that this action is a suit against the United States. Banco Mexicano v. Deutsche Bank, 263 U.S. 591, 602-603, 44 S.Ct. 209, 68 L.Ed. 465 (1924); Codray v. Brownell, 93 U.S.App.D.C. 112, 207 F.2d 610 (1953), cert. denied 347 U.S. 903, 74 S.Ct. 428, 98 L.Ed. 1063 (1954). It is equally as well established that failure to satisfy the conditions of the United States’ sovereign consent to be sued is fatal to the court’s jurisdiction. Brownell v. Morizo Nakashima, 243 F.2d 787 (9th Cir.), cert. denied 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957); Cisatlantic Corp. v. Brownell, 131 F.Supp. 406 (S.D.N.Y.1953), aff’d 222 F.2d 957 (2d Cir. 1955); Von Clemm v. Smith, 204 F.Supp. 110 (S.D.N.Y. 1962).

The 1958 letter attacked by appellants is set forth in the appendix of this opinion. (See Appendix B.) The appellee explains the necessity for requiring that the depositors submit their original certificates of deposit by pointing out that the certificates were redeemable to the holder by the banks in Japan, and in numerous cases had been so redeemed, and existence of the original certificates in the claimants’ hands was essential to the establishment of an unsatisfied debtor status and in order to avoid double payment. The letter followed in meticulous detail and with painstaking care the requirements of the statute in notifying each of the thousands of depositors, not only of the Custodian’s proposal but of the depositors’ rights to file objections to the proposal and to initiate court action if they so desired. As heretofore set forth, the 60-day statutory limitation was set forth specifically and accurately. We question that the Custodian could more completely have outlined the significance of the proposal, creation and status of the forthcoming Final Schedule of Allowed Claims and the rights of the appellants under the statute. To characterize this letter as insulting requires an emotional approach unwarranted by the letter. That it was discouraging to its recipients is obvious. Those recipients were told, however, of the action which they could take if they desired. In some instances, their attorneys were also informed. Their failure to act cannot, we feel, be attributed to any misrepresentation, either affirmatively or negatively, by the appellee. Whatever may have prompted the appellant’s action, or lack of action, we conclude it was not any misleading act or inaction on the part of the Government.

IV

Appellants’ contention that estoppel is applicable to suits arising under the Trading with the Enemy Act faces immediately our holding that “estoppel cannot be used against the Federal Government” in Legerlotz v. Rogers, 105 U.S.App.D.C. 256, 266 F.2d 457, 459 n. 5 (1959), cert. dismissed 362 U.S. 938, 80 S.Ct. 803, 4 L.Ed.2d 768 (1960). That case also involved a suit for the return of vested property under the Act involved in the present case. Similar holdings may be found in Anderegg v. United States, 171 F.2d 127 (4th Cir. 1948), cert. denied 336 U.S. 967, 69 S.Ct. 937, 93 L.Ed. 1118 (1949); Wallace v. United, States, 142 F.2d 240 (2d Cir.), cert. denied 323 U.S. 712, 65 S.Ct. 37, 89 L.Ed. 573 (1944).

V

Next, these appellants reason that Glus v. Brooklyn Eastern District Terminal, supra, contains nothing warranting the conclusion that the appellee is excepted from the estoppel principle enunciated therein. We observe, first, that the Government was not a party in the Glus case. Secondly, the Glus opin*357ion is based upon an affirmative claim that the respondent had made a misrepresentation to the petitioner, thereby misleading him into a course of non-action. Utilizing the basic concept that no man may take advantage of his own wrong, the Supreme Court reversed in order to permit the petitioner to show whether he could, in fact, make out a case calling for the application of the doctrine of estoppel. The Glus case, however, does not pretend to announce any new or extended doctrine. Mr. Justice Black quotes in Glus, with approval, a statement of basic principle from Insurance Company v. Wilkinson, 80 U.S. (13 Wall.) 222, 233, 20 L.Ed. 617 (1871) wherein Mr. Justice Miller said:

“The principle is that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage. And although the cases to which this principle is to be applied are not as well defined as could be wished, the general doctrine is well understood and is applied by courts of law as well as equity where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim.”

We do not believe that the factual record before us permits a conclusion that the appellee “by his representations or his conduct induced” the appellants to give appellee any advantage. This being so, the question of whether the doctrine of estoppel restated in Glus is operative against the Government, or more specifically against this appellee, does not enter this case.

Insofar as appellants attempt to relate the estoppel principle of the Glus case, we refer back to the discussion of this factor in section III of this opinion and conclude that the record does not support appellants’ contention on this point.

VI

Approaching their difficulties from the constitutional viewpoint, these appellants argue that the Fifth Amendment, in providing for due process, precludes the Government from any arbitrary or unreasonable intrusion upon private rights and requires that the Government be held to the highest standards of fairness and reasonableness, and they cite Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956); Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), in support of this principle. Continuing, appellants charge that appellee’s action with reference to their deposits in the Yokohama Bank constitutes a Government seizure of private property without judicial process. Citing Central Union Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S.Ct. 214, 65 L.Ed. 403 (1921), the argument continues that the qualification of the alien property seizure therein is valid only “if adequate provision is made for a return in case of mistake” establishes a standard of “adequate provision,” which because of the application of the 60-day limitation clause has not been met in this case.

The appellee denies in rather general terms the existence of a constitutional issue in these cases.

The record supports the appellee’s argument that the property taken and vested by the Custodian was the property of the Yokohama Specie Bank and not the property of the appellants. That deposits in banks become property of the bank and create a debtor-creditor relationship between bank and depositor is universally recognized. See e. g., Anderson National Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692 (1944); Killoren v. First National Bank, 127 F.2d 537, 541 (C.C.A.8th Cir. 1942); Cicero State Bank v. Crowley, 115 F.2d 1022 (C.C.A.7th Cir. 1940). It follows that the property of the appellants — that is, the debt to them of the Yokohama Specie Bank- — still belongs to appellants *358and has never been seized by the Custodian. The existence of this property in the control and possession of the appellants is further emphasized by the fact, heretofore pointed out, that each appellant may recover in Japan from the Yokohama Specie Bank on the basis of his original deposit certificate, albeit at a rate of exchange not pleasing or acceptable to him.

The constitutional question may be viewed from another viewpoint. Appellants are creditors of a wartime enemy commercial enterprise. The American-based assets were legally vested by valid Act of Congress. Thereafter, as a matter of grace, Congress, by enacting section 34 of the Act, conferred upon certain creditors of enemy enterprises a means of attempting to recover upon their claims from those assets of the debtor which were held by the Custodian. The action did not, however, create a constitutional right in the creditors to recover. The practical effect of section 34 is to provide a means of pro rata distribution of vested funds among those claimant-creditors who are able under the statute to establish their right to this recovery. Certainly, the creditors have not acquired by section 34 of the Act a property right in vested funds.

We conclude that the appellants have not been deprived of any constitutional right by the appellee in these proceedings.

YII

Turning now to the Okamoto case, we recall that this group of appellants are the depositors in the Yokohama Specie Bank whose claims were rejected by the appellee because these people had been interned and paroled and were, consequently, barred by the statute from recovery of their deposits. It is argued on behalf of these appellants that the Government, to their detriment, is taking an inconsistent and consequently illegal position by first claiming the Trading with the Enemy Act created no rights for appellants and “does not apply to them,” in permitting the processing of their deposit claims, but later claiming that the Act’s 60-day limitation clause does apply to appellants when they seek through the courts to press their suit. On this basis, these appellants, relying on Interstate Commerce Comm. v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474, 32 S.Ct. 556, 56 L.Ed. 849 (1912), argue that the courts have authority in this case by mandamus to compel the Custodian to accept the claims of appellants and to proceed to the merits of their claim. In advancing this argument, the appellants emphasize the distinction between the exercise of an agency’s discretionary power and a denial of power from a misunderstanding of the law.

Our review of the Humboldt Steamship Co. case establishes a vital distinction from the situation that confronts us here. In Humboldt, the Interstate Commerce Commission “refused to proceed at all, though the law required it to do so,” 224 U.S. at 485, 32 S.Ct. at 559. Here, the Custodian exercised jurisdiction initially over these appellants’ claims. The claims were reviewed and dismissed on the ground of ineligibility of the claimants under the provisions of the Act. Jurisdiction was exercised, and it was adverse to appellants. Under these circumstances, proceedings in the nature of mandamus will not lie. But, say these appellants, mandamus will lie where “ * * * the erroneous decision cannot be reviewed on appeal or writ of error,” citing United States ex rel. Louisville Cement Co. v. Interstate Commerce Comm., 246 U.S. 638, 643, 38 S.Ct. 408, 409, 62 L.Ed. 914 (1918). Unfortunately for this approach, we have in the present case statutory provision for review of the Custodian’s action in rejecting the claims of these appellants. Section 34(f) of the Act provides a remedy which is an exclusive one and one which the claimants failed to utilize, although complaint for review was brought by a similary situated depositor in another vested Japanese bank case. See Sasaki v. Rogers, 185 F.Supp. 191 (D.D.C. 1960).

*359A further contention of this group of claimants is that the Fifth Amendment prevents dismissal of their claims. Again, the short — and we think obvious — answer to this argument is that if the appellants desired to contest the constitutionality of the eligibility provisions of section 34(a) of the Act, they could, and should, have filed a timely complaint for judicial review.

VIII

We conclude upon the entire record in all three eases that the District Court acted correctly in dismissing these cases on March 31, 1965.

IX

The unique and unfortunate circumstances which have deprived these appellants of their deposits in the Yokohama Specie Bank command sympathetic consideration of their problem. Arguments made to the court were broadly spiced with a strong emotional appeal. Appellants’ sincere counsel valiantly attempted under the label of “equitable considerations” to lead the court to abandon established legal principles and upon purely humane grounds return to the appellants the funds which represented their savings on December 7, 1941. Benevolence is a noble virtue, but it cannot be a foundation for legal opinions, regardless of the need of the litigant or the strictly emotional appeal of his plight. It is not for the courts to turn their backs upon legal principles, precepts and established law in order to accomplish an end which is suggested by a desire to accomplish a humane objective. To do so would immediately constitute the creation of a program of judicial legislation in complete disregard of our constitutional limitations and separation of powers. Obviously, Congress, enacting into law the will of the people, must write our country’s laws. The dangers of wartime, the military and economic problems of the early 1940’s, are far behind us. Perhaps now the necessities that required the enactment of the Trading with the Enemy Act have so far passed into history that Congress may wish to reconsider the status of these appellants and another disposition of their claims. It is not for the court to suggest to Congress what it should or should not do. We suggest only that the relief sought by these appellants lies solely in legislative hands.

Affirmed.

APPENDIX A

Section 34 of the Trading with the Enemy Act, 60 Stat. 925 (1946), 50 U.S.C. App. § 34 (1951).

Sec. 34(a). Any property or interest vested in or transferred to the Alien Property Custodian (other than any property or interest acquired by the United States prior to December 18, 1941), or the net proceeds thereof, shall be equitably applied by the Custodian in accordance with the provisions of this section to the payment of debts owed by the person who owned such property or interest immediately prior to its vesting in or transfer to the Alien Property Custodian. * * Debt claims allowable hereunder shall include only those of citizens of the United States or of the Philippine Islands; those of corporations organized under the laws of the United States or any State, Territory, or possession thereof, or the District of Columbia or the Philippine Islands; those of other natural persons who are and have been since the beginning of the war residents of the United States and who have not during the war been interned or paroled pursuant to the Alien Enemy Act; * * *.
Sec. 34(b). The Custodian shall fix a date or dates after which the filing of debt claims in respect of any or all debtors shall be barred, and may extend the time so fixed, and shall give at least sixty days’ notice thereof by publication in the Federal Register. * •» *
Section 34(f). If the aggregate of debt claims filed as prescribed exceeds the money from which, in accordance with subsection (d) hereof, payment may be made, the Custodian shall prepare and serve by registered mail on *360all claimants a schedule of all debt claims allowed and the proposed payment to each claimant. In preparing such schedule, the Custodian shall assign priorities in accordance with the provisions of subsection (g) hereof. Within sixty days after the date of mailing of such schedule, any claimant considering himself aggrieved may file in the District Court of the United States for the District of Columbia a complaint for review of such schedule, naming the Custodian as defendant. A copy of such complaint shall be served upon the Custodian and on each claimant named in the schedule. The Custodian, within forty-five days after service on him, shall certify and file in said court a transcript of the record of proceedings in the Office of Alien Property Custodian with respect to such schedule. Upon good cause shown such time may be extended by the court. Such record shall include the claims in question as filed, such evidence with respect thereto as may have been presented to the Custodian or introduced into the record by him, any findings or other determinations made by the Custodian with respect thereto, and the schedule prepared by the Custodian. The court may, in its discretion, take additional evidence, upon a showing that such evidence was offered to and excluded by the Custodian or could not reasonably have been adduced before him or was not available to him. Any interested debt claimant who has filed a claim with the Custodian pursuant to this section, upon timely application to the court, shall be permitted to intervene in such review proceedings. The court shall enter judgment affirming or modifying the schedule as prepared by the Custodian and directing payment, if any be found due, pursuant to the schedule as affirmed or modified and to the extent of the money from which, in accordance with subsection (d) hereof, payment may be made. Pending the decision of the court on such complaint for review, and pending final determination of any appeal from such decision, payment may be made only to an extent, if any, consistent with the contentions of all claimants for review.

APPENDIX B

(J.A. 6)

Exhibit A

Registered Mail

Return Receipt Requested

Ayako Honda

1576 Valota Road

Redwood City, California

Dear Sir:

Reference is made to the above-numbered debt claim which has been filed with this Office with respect to the insolvent account of the Yokohama Specie Bank Ltd. The claim is based upon yen certificates of deposit.

The Director of this Office decided on November 13, 1957, In the Matter of Kunio Abe'et al., Claim No. 55507, Docket No. 55 D 72, which decision the Attorney General has declined to review, that yen certificates of deposit issued by the Yokohama Specie Bank, Ltd., and the Sumitomo Bank, Ltd. are obligations payable in yen in Japan, and that claims based on such certificates of deposit are to be allowed and paid in United States currency at the post war rate of exchange in accordance with the “Judgment Day” rule set forth in Die Deutsche Bank v. Humphrey, 272 U.S. 517 [47 S.Ct. 166, 71 L.Ed. 383] (1926). Thus, the current rate of exchange of 361.55 yen to one dollar must be used in converting the yen into a dollar amount. Interest is allowable from the date of deposit to the date of payment.

Therefore, if you submit your original certificates of deposit to this Office, I can recommend your claim for allowance in the sum of $9.09 plus interest. If you have lost your certificates, you should prepare a statement setting out that the deposits were made as alleged in the Notice of Claim form, giving the numbers of the certificates, the dates of the deposits, and the branch of the Bank at which the certificates were purchased. You should also state that you have not *361received payment from the Bank or accepted renewed certificates of deposit. This statement should be signed and sworn to by you before a Notary Public and forwarded to this Office in support of your claim.

(J.A. 7)

Payment of your claim, however, will not be made immediately. Under the procedures set forth in section 34(f) of the Trading with the Enemy Act, as amended (50 U.S.C. App. 34(f)); it is necessary that all of the approximately 9000 claims filed against the Yokohama Specie Bank, Ltd. be reviewed and a schedule issued showing the proposed payments before any payments can be made. Within sixty days after the issuance of the schedule, any aggrieved claimant may file in the District Court of the United States for the District of Columbia a complaint for review of such schedule, naming the Attorney General as defendant. If no complaint for review is filed, payments will be made in accordance with the schedule.

Advice received by this Office is to the effect that yen certificate of deposit accounts are carried on the books of the Yokohama Specie Bank, Ltd. in Japan, and the funds may be withdrawn in that country or transferred to the Bank of Tokyo, Ltd. Under the circumstances, you may wish to utilize the funds in Japan rather than await settlement by this Office. If this is done, the Notice of Claim filed with this Office should be canceled by signing and mailing the enclosed Notice of Cancellation of Claim card.

If, however, you wish to maintain your claim with this Office you are requested to submit the original certificates of deposit or the notarized statement as to why they cannot be forwarded. In the event you object to the allowance of your claim in the amount stated above, you should submit the certificates to this Office within the next forty-five days and file a statement specifying your objections, together with the reasons in support thereof. Upon receipt of your objections, if I consider them to be without merit, I shall apply to the Director of this Office, pursuant to section 502.25(1) of the Rules of Procedure for Claims, a copy of which is enclosed, for the entry of an Order allowing your claim in the principal amount stated above, plus interest, and dismissing any portion over and above that amount on the ground that there is no debt due and owing to you by the Yokohama Specie Bank, Ltd. in excess of that amount. In acting upon my application, the Director will consider the statement of objections that you may have submitted.

(J.A. 8)

On the other hand, if within the next forty-five days you do not submit the original certificates of deposit or a statement explaining why they cannot be forwarded, I shall conclude that the claim has been abandoned in its entirety and, without further notice to you, shall apply to the Director for the entry of an Order dismissing the claim on the ground of abandonment, pursuant to section 502.-25(g) and (i) of the Rules of Procedure for Claims.

To recapitulate:

1. If you wish to maintain your claim with this Office, you should within forty-five days forward the original certificates of deposit and, if you wish to do so, file a statement of your objections to the allowance of the claim in the amount stated above.

2. If you wish to maintain your claim but do not have the original certificates of deposit, you should within forty-five days submit a statement, signed and sworn to before a Notary Public, giving the details of the deposits and stating that you have not received payment or renewed certificates. If you wish to do so, you may also file a statement of your objections to the allowance of the claim, in the amount stated.

3. I shall then apply to the Director for an Order allowing your claim in the principal amount stated above, plus interest, and dismissing any portion over and above that amount. Where objections have been filed, they will be sub*362mitted to the Director for his consideration in acting upon your claim.

4. If, within forty-five days, you do not submit the original certificates of deposit or an explanation as to why you cannot forward them, I shall conclude that the claim has been abandoned and shall apply to the Director for an Order dismissing the claim on that ground.

5. If you prefer to utilize the funds in Japan, you should sign and mail the enclosed Notice of Cancellation of Claim card in order to clear the records of this Office.

(J.A. 9)

Please note that the original certificates must be submitted; photostatic copies cannot be substituted.

Sincerely yours,

Arthur R. Schor,

Chief, Claims Section,

Office of Alien Property.

Enclosures

cc: Wirin, Rissman & Okrand,

257 South Spring Street,

Los Angeles 12, California.

. By Executive Order No. 9788 (October 14, 1946, 11 F.R. 11981), the Attorney General succeeded to the powers and duties of the Alien Property Custodian. The term “Custodian” or “Office of Alien Property” will be used to refer to the Alien Property Custodian, or the Attorney General as successor, as the context may require.

. The record also indicates that counsel of record for at least claimant Ayako Honda, No. 19,284, was sent a copy of this letter.

. The Supreme Court thereafter dismissed the writ of certiorari in the Aratani case on March 9, 1965, 380 U.S. 938, 85 S.Ct. 951, 13 L.Ed.2d 826.