Jensen v. Woodson ( 1935 )

MEMORANDUM

BAILEY, J.

Section 9(a) of the Trading with the Enemy Act vested in the President the power to order the payment and delivery of property seized by the Alien Property Custodian to anyone whom he determined to be entitled to it. The counterclaim seeks the recovery of property paid out by order of the President. It is true that the order took the form of an approval of an opinion of the Attorney-General, but I think that the form is immaterial. It is not alleged that the former Alien Property Custodian or his subordinates undertook in conjunction with the plaintiff to defraud the United States, although the charge of fraud on the part of the plaintiff consists of facts apparently known to the Alien Property Custodian and the then Attorney-General. If it was the President who was deceived, it would not seem that any action which would have the effect of vacating an 'order of the President could be maintained by the successor to the Alien Property Custodian, but could be brought only in the name of the United States, to recover property of the United States.

There being no statutory authority for the counterclaim to be brought in the name of the Attorney-General for the use and benefit of the United States, the motion to strike the counter-claim will be sustained.

On the other hand the motion to strike certain portions of the answer (other than the counter-claim) will be overruled.