173 Opinion of the Court By designated from time to time by the President Executive Order No. 9095 dated March 11, 1942 (7 F.R. 1971), the President created the Office of Alien Property Custodian, and provided that the property of a foreign national should "vest in the Alien Property Custodian whenever the Alien Property Custodian shall so direct." 1 On October 14, 1946, by Executive Order No. 9788 (11 F.R. 11981), the President terminated the Office of Alien Property Custodian and transferred all the authority and functions of the Custodian to the Attorney General. The order made no change in the vesting power. On December 31, 1946, the President proclaimed the cessation of hostilities in World War II but stated that "a state of war still exists." (Proclamation No. 2714, 12 F.R. 1.) That Proclamation did not affect the vesting power. On March 4, 1947, an important press release was issued by the Secretaries of the Treasury, State and War, and the Attorney General. It announced new rules with regard to trade with enemy countries and treatment of the property of alien enemies. It was a document of several pages, and contained the following statement: In this connection, the Attorney General also announced that henceforth, in general, the Office of Alien Property, Department of Justice, will not vest German or Japanese interests acquired after December 31, 1946. The Attorney General's statement went on to say that fiduciaries who had previously been required to report the existence of enemy property so acquired need no longer report it, and were free to transfer it. The statement said that these changes were accomplished by amendments of the rules of the office of alien property. We are not advised as to the text of these amendments of the rules. The Attorney General's statement also contained this paragraph: It was pointed out, however, that in cases where a property interest was acquired before December 31, 1946, by Germans or Japanese who have been within Germany, 1 Executive Order 9193, dated July 6, 1942 (7 F.R. 5205), Executive Order No. 9567 (10 F.R. 6917) dated June 8, 1945, and Executive Order 9760 (11 F.R. 7999) dated July 23, 1946, all related to the vesting of alien property, but contained nothing of direct significance to the present proceeding. Opinion of the Court 145 C. Cls. Italy, Hungary, Bulgaria or Rumania on or since January 1, 1945, the restrictions of General Ruling No. 11A are still applicable, and such an interest would be subject to vesting by the Department of Justice. This would also be true of income on property blocked on December 31, 1946. The press release was an invitation and assurance to aliens that they might bring property into or acquire property in this country without danger of confiscation. The abandonment of the requirement that such property be reported to the Office of Alien Property was a statement that that office was no longer interested in such property. The statement in the paragraph last quoted that "such an interest" that is, an interest in property acquired before December 31, 1946, "would be subject to vesting" amounted to a statement that an interest acquired after that date would not be subject to vesting. The Government urges that the words "in general” in the Attorney General's statement negative all the inferences that might otherwise be drawn from it. If they do, the invitation was a trap. We have no idea that it was used, in fact, not to promote commercial intercourse but to enrich the treasury. Whether any such property, other than that of the plaintiffs, was vested, we are not advised. What the Attorney General meant when he wrote the words "in general" we are not advised. The Government has submitted affidavits of persons who would have been in a position to know of any other directives or official statements relating to the question at hand. They say they know of none. On July 9, 1951, the President wrote identical letters to the Vice President, as President of the Senate, and to the Speaker of the House of Representatives, asking them to place before their respective legislative bodies the President's proposal for congressional action terminating the state of war between the United States and Germany, but preserving the right of the United States to vest the property of Germans which was acquired by them before January 1, 1947. The President's letters each contained the following paragraph: Furthermore, it is not intended that the termination of the state of war shall in any way change or alter the pro 173 Opinion of the Court gram, which Congress has authorized, of seizing under the Trading With the Enemy Act, German property in this country on or before December 31, 1946, and using the proceeds to pay just and legitimate claims arising from the war in accordance with the War Claims Act of 1948. The vesting of German property under this program does not extend to property acquired since the resumption of trade with Germany on January 1, 1947, following the cessation of hostilities. It is limited to German property and rights located here before or during the period of hostilities. It is not conceivable that this important communication from the President to Congress, relating to our legal relations with Germany and particularly to our treatment of the property of Germans, would have been written without consultation with the Attorney General, who was also the Custodian of Alien Property. The statement was a representation to Congress by the President, who had been entrusted by Congress with complete authority over the subject of alien property, as to how that authority had been exercised. The representation was made for the purpose of inducing legislation, and it did induce the desired legislation. The Joint Resolution, Public Law 181, 65 Stat. 451, approved October 19, 1951, shows that Congress took the President's statement for what it plainly said, i.e., that property acquired by Germans after December 31, 1946, was not subject to vesting, and that the requested new legislation should continue that situation. The petition alleges that on July 26, 1951, the Assistant Attorney General who was the Director of the Office of Alien Property, issued the vesting order here in question. It alleges that the property was acquired by the German plaintiffs after December 31, 1946. Since the President was the official entrusted by Congress to determine what property was subject to vesting, and since the President had formally stated to Congress on July 9, 1951, that property such as that here in question was not subject to vesting, the property was not subject to vesting. Any misunderstanding by the President's subordinates, and any action later taken by them in contradiction of the President's expressed determination, could not affect the Pres 574580-61- 13 Syllabus 145 C. Cls. ident's power to make the determination, nor the consequences of its having been made. The defendant's motion for summary judgment is denied. It is so ordered. LARAMORE, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. JOSEPHINE B. LARSEN, MAYBELLE RITA MALONEY, FEDERICK J. CUTTING AND MARTIN WAGNER v. THE UNITED STATES. [No. 9-58. Decided March 4, 1959] ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Civilian pay; dismissal; estoppel by judgment.—In an action by four veteran preference eligible employees of the Veterans Administration for back pay on the ground that defendant had violated their reduction-in-force preferential retention rights under section 12 of the Veterans' Preference Act of 1944, as amended, 5 U.S.C. § 861, it is held that the judgment of the District Court, affirmed by the Court of Appeals on identical issues in suits by plaintiffs seeking reinstatement, operates as an estoppel as to the same issues in the Court of Claims. Edgar v. United States, ante, p. 9. Judgment 715(2) Civilian pay; dismissal; estoppel by judgment.-A judgment of the District Court in a suit for reinstatement of a civilian Government employee operates as an estoppel with respect to any issues therein decided which are also issues in a suit for pay in the Court of Claims by the same plaintiff with respect to the same dismissal action, despite the fact that the relief sought in the two courts may be different. Edgar v. United States, ante, p. 9. Judgment 715(2) Civilian pay; dismissal; estoppel by judgment; parties—privity with the United States.-A suit against the head of an executive department is not a suit against that person as an individual but as official head of that department and it is therefore, in effect, a suit against the department; and an executive department of the Federal Government is in privity with the United States in such a manner that a judgment in a suit to which it is a party in the District Court operates as an estoppel in a suit in the Court of Claims against the United States as to issues therein decided in the District Court. Judgment 702 178 Opinion of the Court Mr. Murray A. Gordon for the plaintiffs. Mr. Irving Feder was on the brief. Mr. Earl L. Huntington, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. LARAMORE, Judge, delivered the opinion of the court: This is a suit by four veterans' preference eligible employees of the Veterans Administration seeking back pay on the allegation that the defendant violated their reduction-inforce preferential retention rights under section 12 of the Veterans' Preference Act, as amended, 5 U.S.C. § 861. Defendant has not filed an answer to the petition, but has moved the court under Rule 51 for a summary judgment on the grounds that (1) section 12 of the Act, supra, does not apply to these plaintiffs and (2) that plaintiffs have already litigated this issue in a court of competent jurisdiction and under the doctrine of collateral estoppel are bound by that decision. Defendant in its motion has attached copies of two opinions of the United States Court of Appeals for the District of Columbia Circuit (235 F. 2d 515 and 235 F. 2d 518) affirming the action of the United States District Court for the District of Columbia in granting summary judgments against these plaintiffs in their actions for reinstatement. There is also attached to the motion a letter written by the Chairman of the Civil Service Board of Appeals and Review denying to plaintiffs further administrative review of their claims after the above decisions of the Court of Appeals. In defendant's reply to plaintiffs' response and objections to defendant's motion for summary judgment there are attached certified copies of the pleadings in the District Court in order to show to this court that the decisions of the Court of Appeals were based upon the very facts and issues which the plaintiffs attempt to raise by the present action. Other than the affidavits above mentioned there is nothing in the record presented by defendant which counters the facts alleged by plaintiffs' petition. A close reading of the complaints filed in the District Court and the petition filed in this court does reveal that both actions are premised upon the same facts and issue; i.e., whether there has been a violation of the Veterans' |