March 28, 1979


79-19      MEMORANDUM OPINION FOR THE
           ASSOCIATE ATTORNEY GENERAL

           Trading with the Enemy Act (50 U.S.C. App. § 1 et
           seq.)—Attorney General—Title Claim of the
           Commissioner of Customs—Decision of the
           Director, Office o f Alien Property, Allowing the
           Claim Reversed


    In October 1978, at the request o f the Attorney General’s Office, we
reviewed the decision o f the Director o f the Office o f Alien Property o f the
Department o f Justice disposing o f five claims remaining under the
Trading with the Enemy Act, 50 U .S.C . App. § 1 et seq.
   We had no problem with the decisions concerning four o f the claims; the
Director’s decision on them was allowed to take effect. However, we be­
lieved that one claim—Title Claim No. 63801 filed by the Commissioner of
Customs—raised substantial legal questions. Because o f these questions,
and because a reversal o f the Director’s decision on this claim would result
in the disputed funds (less 5 percent) being paid to private parties rather
than to the Treasury, see 50 U.S.C. App. §§ 39, 2012, we recommended
that, pursuant to the regulations o f the Office o f Alien Property, 8 CFR
§ 502.23, the Attorney General order a review of the Director’s decision
upholding that claim. By virtue o f the Attorney General’s order to this ef­
fect, a final decision on this one claim is now required. Pursuant to 28
U.S.C. § 510, the Attorney General has delegated that function to you. Id.
   For the reasons given in the attached proposed decision and summarized
herein,* we do not believe that the Commissioner o f Customs is entitled to
file a claim under the Act. We therefore recommend that you reverse the
decision o f the Director and deny the claim filed by the Commissioner o f
Customs.
   Title Claim No. 63801 originated from Custom s’ seizure o f imported



  • The decision was signed by the Associate A ttorney General on May 8, 1979.

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semiprecious and synthetic stones and diamonds in the early 1940s. They
were seized for violation o f the customs laws and were turned over to the
Alien Property Custodian, pursuant to a vesting order issued in 1945, on
the ground that they were enemy property; the Custodian later sold them
for approximately $1,291,000. Customs later filed a claim for this money,
contending that it had proprietary rights in the goods prior to vesting.
   The Chief Hearing Examiner o f the Office o f Alien Property, an entity
in this Department and the successor o f the Alien Property Custodian, re­
jected Custom s’ claim, primarily because, in his opinion, Customs lost its
interest in the property when it surrendered the goods to the Alien P rop­
erty Custodian. The Director o f the Office o f Alien Property (now the
Assistant Attorney General in charge o f the Civil Division, 28 CFR § 0.47)
reversed this decision, and allowed Custom s’ claim, on the basis that
Customs had an interest in the property cognizable under the Act, an in­
terest not defeated by either the transfer to the Alien Property Custodian
or the subsequent sale o f the goods.
   We believe that another issue not discussed in the Director’s initial deci­
sion (although briefed in the proceedings and referred to in the Chief
Hearing Examiner’s decision) is determinative here. The remedies pro­
vided in the Act are exclusive, and the pertinent provision o f the Act
allows only a “ person” to file a claim for return o f property. The Com­
missioner o f Customs contends that he satisfies this requirement, for the
reason that the Act defines “ person” to include a “ body politic” and that
the United States meets this latter definition. We believe, as detailed in the
proposed decision, that the structure o f the Act, its underlying purposes,
the legislative history o f the term “ person,” and judicial authority lead to
the conclusion that the United States is not a “ person” within the Act and
thus may not file a claim for return o f property.

                                       L eon U lm an
                            D eputy Assistant A ttorney General
                                                  Office o f Legal Counsel




                                     122
            UNITED STATES DEPA RTM EN T OF JU STIC E

        OFFICE O F T H E ASSOCIATE ATTORNEY GENERAL

                       W A SHINGTON , D .C. 20530


         In the Matter of the Commissioner of Customs
                     Title Claim No. 63801

           Decision of the Associate Attorney General


    Pursuant to the authority vested in the Attorney General by 8 CFR
§ 502.23, he directed a review o f the initial decision o f the Director, Office
o f Alien Property, with respect to Title Claim No. 63801 filed by the Com ­
missioner o f Customs under the Trading with the Enemy A ct, as amended,
50 U.S.C. App. § 1 et seq. The Attorney General pursuant to 28 U.S.C.
§ 510 has delegated to me the function o f rendering a decision on the
claim. Upon due consideration o f the initial decision o f the Director o f the
Office o f Alien Property and the submission o f the Commissioner of
Customs, I have concluded that the Commissioner o f Customs is not en­
titled to file a claim under section 9(a) o f the Trading with the Enemy Act.
Accordingly, the decision o f the Director o f the Office o f Alien Property is
overruled and Title Claim No. 63801 is hereby denied.
   The factual circumstances underlying the claim are set out in detail in
the initial decision o f the Director o f the Office o f Alien Property and
need not be repeated at any length here. Briefly, the claim relates to the
seizure by Customs, for violation o f the customs laws, o f imported semi­
precious and synthetic stones and diamonds in the early 1940s. These com ­
modities were turned over to the Alien Property Custodian pursuant to a
vesting order issued in 1945 on the ground that they were enemy property;
the Custodian later sold them for a total sum o f about $1,291,000.
Customs subsequently filed a claim for the proceeds, contending that its
seizure gave it proprietary rights in the commodities prior to vesting.
Customs also relies on the decision in von Clemm v. Smith, 255 F. Supp.
353 (S.D .N.Y. 1965), aff'd, 363 F. (2d) 19 (2d Cir. 1966), as establishing
that the customs laws were, in fact, violated.
   The Chief Hearing Examiner o f the Office o f Alien Property rejected
Customs’ claim, primarily on the basis that Customs lost its interest in the
property due to its surrender o f the commodities to the Alien Property
Custodian and his subsequent sale o f the goods. The Director o f the Office
of Alien Property disapproved this decision, and allowed Custom s’ claim,
on the basis that Customs had an interest in the property which was
cognizable under the Act and which was not defeated by either the transfer

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to the Alien Property Custodian or the subsequent sale o f the goods.
   Section 7(c) o f the Act provides that all property conveyed to or seized
by the Alien Property Custodian “ shall be held, administered and dis­
posed o f as elsewhere provided in this A c t.” 50 U .S.C . A pp. § 7(c).1 In
this proceeding the Commissioner o f Customs has founded his claim
under section 9(a) o f the A ct,2 which provides in pertinent part:
      Any person not an enemy or ally o f enemy claiming any interest,
      right, or title in any money or other property which may have been
      conveyed, transferred, assigned, delivered, or paid to the Alien
      Property Custodian or seized by him hereunder and held by him
      or by the Treasurer o f the United States, or to whom any debt
      may be owing from an enemy or ally o f enemy whose property or
      any part thereof shall have been conveyed, transferred, assigned,
      delivered, or paid to the Alien Property Custodian or seized by
      him hereunder and held by him or by the Treasurer o f the United
      States may file with the said custodian a notice o f his claim under
      oath and in such form and containing such particulars as the said
      custodian shall require; and the President, if application is made
      therefor by the claimant, may order the payment, conveyance,
      transfer, assignment, or delivery to said claimant o f the money or
      other property so held by the Alien Property Custodian or by the
      Treasurer o f the United States, or o f the interest therein to which
      the President shall determine said claimant is entitled.
As is evident from this provision, only a “ person” is entitled to file a claim
for a return o f property. The Commissioner o f Customs contends that he
satisfies this requirement, on the ground that section 2(c) o f the Act
defines “ person” to include a “ body politic,” 50 U.S.C. App. § 2(c), and
that the United States meets this latter definition. I believe that the struc­
ture o f the Act, its underlying purposes, the legislative history o f the
definition o f “ person,” and judicial decisions interpreting that term all
refute this interpretation o f the A c t.3 I thus conclude that the Commis­
sioner o f Customs is not entitled to file a claim under the Act.



   1 The decisions construing this provisions have held that the remedies provided in the Act
are exclusive. Becker Steel Company v. Cummings, 296 U .S. 74, 79 (1935); La Due & Com­
pany v. Rogers, 259 F. (2d) 905, 908 (7th Cir. 1958).
   : Portions o f the record might suggest that the Commissioner o f C ustom s’ claim is also
founded on section 32 o f the Act, 5 U .S.C . A pp. § 32, which provides for administrative
relief to certain classes ineligible under section 9(a). I doubt that the C ustom s’ claim is in fact
founded on section 32, in light o f its explicit statem ent in the record that “ Title Claim No.
63801 is filed in accordance with section 9(a) o f the T rading with the Enemy A ct.”
Preliminary Trial Brief o f the Com missioner o f Custom s at 9. In any event, the text in section
32 makes clear that only a “ person” is entitled to file claims under that provision, and thus
the conclusion and rationale set forth in the text would apply to claims under section 32 as
well as under section 9(a).
   1 Although this issue was discussed in the proceedings before the Chief Hearing Examiner,
he only briefly mentioned it in his decision, and the Director did not discuss it at all in her
decision.

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                                             A.
     In my view, an examination o f the structure o f the Act and the under­
lying purposes o f section 9(a) strongly suggests that Congress did not in­
tend for the United States to be a claimant thereunder. It allows claimants
to apply to the Alien Property Custodian for a return o f vested property;
if a claimant does not obtain administrative relief, he is authorized to
bring suit to obtain a return. This provision was deemed by the Congress
as “ necessary to preserve and protect innocent claim ants.” S. Rept. No.
 I l l , 65th Cong., 1st sess. 8 (1917); S. Rept. No. 113, 65th Cong., 1st sess.
8 (1917). See also H. Rept. No. 85, 65th Cong., 1st sess. 4 (1917). The
courts have indicated that, in the absence o f such a remedy, the Act would
be o f doubtful constitutionality. Becker Steel Company v. Cummings,
supra, at 79.
     This structure o f section 9(a) hardly seems designed to afford the United
States a remedy; rather, these factors suggest that the United States was
not to have a remedy under that provision. It seems unreasonable to at­
tribute an intent on the part o f Congress to allow the United States, in ef­
fect, to file claims against itself and then to bring suit against itself in
court.4 Not only does this seem to be wasteful o f governmental resources
which could be devoted to other efforts, but the possibility o f one agency
suing the Alien Property Custodian would raise constitutional questions
relating to a proper case or controversy. See, e.g., United States v. Ease­
ment and Right o f Way, Etc., 204 F.Supp. 837 (E.D. Tenn. 1962); The
Pietro Campanella, 47 F.Supp. 374 (D. Md. 1942) (involving a contro­
versy arising under the Trading with the Enemy Act); but c f , United
States v. Nixon, 418 U.S. 683 , 692-97 (1974).
     To allow this result would seem particularly unjustified in light o f the
congressional intent underlying section 9(a). As noted above, Congress
provided for a remedy in section 9(a) because such was necessary to pro­
tect innocent claimants. Since an agent o f the United States could already
be holding the property, it would hardly seem that the interests o f the
United States require the protection afforded by that provision. Con-
cededly, Congress provided that the Alien Property Custodian was to
make payments to the United States in certain instances—e.g., the pay­
ment o f taxes, § 24(b), 50 U.S.C. App. § 24(b), and the return o f money
paid by the United States under license, assignment, or sale o f patents,
§ 27, 50 U.S.C. App. § 27. While such provisions might suggest that C on­
gress believed that the interests o f the United States were not fully pro­
tected by custody o f the property in the hands o f the Alien Property
Custodian, they also suggest that, where Congress wished to provide for
payments by the Alien Property Custodian to the United States, it so



  4 The courts have made clear that a suit against the Alien Property Custodian is, in effect,
a suit against the United States. See, e.g., Cummings v. Deutsche Bank, 300 U .S. 115, 118
(1937); Becker Steel Company v. Cummings, supra, at 78.

                                             125
provided explicitly.5 I thus do not believe that section 9(a) was intended by
Congress to afford a remedy to the United States.
   The fact that the m ajor portion o f the excess funds held by the Alien
Property Custodian are to be paid into the W ar Claims Fund, see 50
U.S.C. A pp. §§ 39(d), 2012(a), does not alter this conclusion. Since such
funds will not be retained by the United States, but rather will be paid to
private parties for war losses, an argument might be made that the inter­
ests o f the United States would be better served if it would take action
under section 9(a) so as to retain the funds. However, I would question,
first, whether those interests are any less served by payment to these
private parties than by transfer to the Treasury to serve other purposes.
Congress has obviously decided that the payments to these private parties
is in the interest o f the United States, and it is not for the Attorney General
to question that judgm ent. While it might be argued that Congress could
only intend to transm it to those private parties such funds that did not
belong to the United States or any other proper claimant, this argument
appears to me to asssume its own conclusion. If Congress had intended
such a result, it presumably would have explicitly so provided in the same
way it did in other provisions o f the Act where the United States’ interests
were explicitly preserved.

                                                B.
  The legislative history o f the term “ body politic” also supports this
result. Initially this term was not included in the definition o f “ person”
under the bill. That omission was the occasion o f the following colloquy
on the House floor:
         Mr. LENROOT. Upon this subject o f lienors the bill provides
      that any person not an enemy having a lien may have a remedy.
      The word “ person” is defined in the bill, but what I want to ask
      the gentleman is this question: In the case o f securities subject to
      taxation by the State or municipality and upon which they have a
      lien for tax, under the provisions o f this bill the State or
      municipality will lose all such taxes, will they not?
         Mr. M ONTAGUE. Why does the gentleman think so?
         Mr. LENROOT. Because section 14 provides that there shall


  1 This view is supported by the Supreme C o u rt’s decision in Davis v. Pringle, 268 U.S. 315
(1925), where the C ourt held that the U nited States was not a “ person” for purposes o f a
provision in the Bankruptcy Act giving priority to debts “ owing to any person who by the
laws o f the States o f the United States is entitled to priority.” The C o u rt’s reasoning could
well apply to this case:
     It is incredible that after the conspicuous m ention o f the United States in the first place
     at the beginning o f the section and the grant o f a limited priority, Congress should have
     intended to smuggle in a general preference by m uffled words at the end * * *.
     Elsewhere in cases o f possible doubt when the Act means the United States it says the
     United States. We are o f opinion that to extend the definition o f ‘person’ here to the
     U nited States would be ‘inconsistent with the context.’

                                               126
    be no lien upon any o f this property except as specifically pro­
    vided in the bill. That is in section 9, page 14. The word
    “ person” as defined in the bill does not include State govern­
    ments or municipalities.
       Mr. M ONTAGUE. The gentleman may be correct, and the
    definition o f “ person” may not embrace States or political subdi­
    visions. I incline to believe he is correct and perhaps an am end­
    ment should be offered to meet the difficulty. [55 CONG. R ec.
    4847(1917).]
The following day this same problem was also addressed:
       Mr. W ALSH. Mr. Chairman, I offer the following am end­
    ment:
       The Clerk read as follows:
       Page 25, line 23, after the word “ corporation,” insert “ or
    State or any political or municipal subdivision thereof.”
       Mr. W ALSH. Mr. Chairman, this amendment is offered
    because the word “ person” used in subsequent sections o f the act
    may not include a State, city, or town or any other political subdi­
    vision o f the State. It might be that an alien enemy would have
    property situated in some State or some political subdivision o f a
    State upon which property the State or the city or town or tow n­
    ship might expect to collect State or local taxes, and this am end­
    ment to the definition o f the word “ person” would permit the
    State or a municipal, local, or political subdivision o f a State to
    present its claim for the taxes assessed on the property to the cus­
    todian o f such property provided for in this bill and have that
    claim adjudicated or passed upon and approved and the money
    paid over. The State, city, county, township, or whatever subdivi­
    sion o f the State it might be might have a lien on that property for
    taxes or for betterments and the like, and under the provisions of
    the bill it is not clear in my opinion that the word “ person” as de­
    fined in this paragraph and especially used in the sections follow­
    ing would include a city, town, township, or a county or the State.
       I have in mind, for instance, where a person who under the
    provisions o f this bill would be classed as an alien enemy, owning
    a summer estate and that estate being assessed and liable for
    taxes. I doubt if under the provisions o f the bill the town in
    which that estate is situated would be able to file its claim for
    taxes with the alien property custodian and receive payment
    therefor.
       Mr. M ANN. Will the gentleman yield?
       Mr. W ALSH. Yes.
       Mr. MANN. Does not the word “ corporation” include it?
       Mr. W ALSH. It would not include a State, and it would not
    include some towns in Massachusetts, for instance, which are not
    strictly incorporated.

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   Mr. M ANN. They do not have to be incorporated.
   Mr. W ALSH. Well, there is a doubt about it applying to such
corporations.
   Mr. MANN. Municipal corporation.
   Mr. W ALSH. Municipal corporation is not included in the
division.
   Mr. MANN. It says corporation.
   Mr. W ALSH. But the word corporation as used in the bill, as I
have stated, especially in subsequent sections, would, 1 am in­
clined to believe be interpreted to mean that it applied only to
business or commercial corporations and not to municipal or
political corporations. This amendment would clear up the
doubt. Certainly after the property got into the custody o f the
Treasury o f the United States or into the custody o f this alien-
property custodian, if there was any doubt about whether it in­
cluded a political subdivision o f a State and it meant the payment
o f money, the doubt probably would be resolved against the per­
son: that is to say, the State, county, city, or town that was
claiming payment. Certainly it would seem these taxes should not
be lost to the State or localities levying them.
   Mr. ELSTON. The gentleman is trying to particularize and
cover all possible stages. Why can not you say corporation, body
politic, or municipal? That would cover everything. If you said
body politic it would cover it all.
   Mr. W ALSH. Well, Mr. Chairm an, I ask unanimous consent
to withdraw my amendm ent and substitute therefor, in line 23,
page 25, the words “ or body politic” after the word “ corpora­
tio n ,” in view o f the suggestion o f my learned friend, the gen­
tleman from California [Mr. E l s t o n ].
   The CHAIRM AN. The gentleman from Massachusetts asks
unanimous consent to modify his amendm ent to the extent
stated. Is there objection?
   There was no objection.
   Mr. M ILLER o f M innesota. Does the gentleman think that a
State is a body politic?
   Mr. W ALSH. I do not know what else it is if it is not a body
politic.
   The CHAIRM AN. The Clerk will report the amendm ent as
modified.
   The Clerk read as follows:
   Page 25, line 23, after the word “ corporation,” insert “ or
body politic.”
   The CHAIRM AN. The question is on the amendm ent.
   Mr. M ILLER o f M innesota. Mr. Chairm an, I desire to make
an inquiry about this term “ body politic” o f the gentleman from
Massachusetts [Mr. W a l s h ]. I have no doubt but that in a very

                               128
general sense a body politic consists o f any body or group of indi­
viduals grouped together for governmental political purposes.
That is old language that used to be current a hundred years ago
or more. It has practically disappeared from the textbooks and
from the decisions, and in a strictly technical sense I question
whether a State is a body politic, as States are organized now as
parts o f the Federal Government. Why not leave it as it was
originally?
   Mr. ELSTON. It is not intended to refer to States within the
United States at all?
   Mr. M ILLER o f Minnesota. Oh, I understand so. Why not
leave that “ or corporation, commercial or municipal” ?
   Mr. W ALSH. Does the gentleman desire an answer from me?
   Mr. M ILLER o f Minnesota. I am propounding my inquiry to
the distinguished gentleman from Massachusetts.
   Mr. W ALSH. Mr. Chairman, in answer to the inquiry pro­
pounded by the gentleman from Minnesota, I would say that I
think a State is a body o f citizens upon whom are conferred cer­
tain rights by the Congress o f the United States in pursuance of
the Constitution o f the United States. They are given certain
duties to perform and are subject to certain liabilities, and cer­
tainly that political division could be construed to be a body
politic just as much as a city which might be incorporated within a
State, by and under the constitution o f that State, the citizens of
which should be given certain rights and privileges and would be
subject to certain liabilities. The State would include the city and
the city would be a body politic, certainly; and I think the State
would be a body politic, perhaps raised to the “ nth ” power. Has
the gentleman from Illinois [Mr. M a n n ] completed the search he
desired to make?
   Mr. M ILLER o f Minnesota. Does not the gentleman think the
language would be improved if he were to strike out the word
“ o r,” before the word “ corporation,” and say “ corporation,
municipal corporation, or State” ? Then there would not be any
doubt about it.
   The CHAIRM AN. The time o f the gentleman from Minnesota
has expired.
   Mr. WALSH. Mr. Chairman, inasmuch as the modified
amendment has been seconded by a member o f the committee, I
will ask the gentleman from Virginia whether the chairman will ac­
cept the amendment?
   Mr. M ONTAGUE. Mr. Chairman, the amendment is agreeable
to me.
   The CHAIRM AN. The question is on the amendment offered
by the gentleman from Massachusetts.
   The amendment was agreed to. [55 C o n g . R e c . 4917-18
(1917).]

                                129
 In my view, the genesis and entire focus o f this debate was the question
whether the states or political subdivisions thereof would be able to pre­
sent claims to the Alien Property Custodian. In the end, the House
amended the term “ person” to include a “ body politic” so as to allow for
this result; and the term was included in the statute as enacted. As such, I
believe it would go beyond Congress’ intent to include the United
States—which was not mentioned at all in the debate—within the term
 “ body politic.”
    The Commissioner o f Customs has raised several objections to such a
conclusion. He argues, first, that the United States has been called a
 “ body politic” in the case law, see United States v. Maurice, 26 Fed. Case
No. 15,747 (D. Va. 1823), see also, United States v. Tingey, 30 U.S. 115,
 128 (1831), and the United States must thus be deemed to be such under
the Trading with the Enemy Act. He also refers to a definition in Black’s
Law Dictionary 222 (4th ed. 1968) defining body politic as “ a social com ­
pact by which the whole people convenants with each citizen, and each
citizen with the whole people, that all shall be governed by certain laws for
the com m on good,” and, alternatively, as a “ state or nation or public
associations.” Here, however, the determinative question is congressional
intent; while the existing case law or accepted definitions might afford
some basis for interpreting what Congress meant, the debate on the House
floor—which focussed on the states and municipalities and did not men­
tion the United States at all—is a much surer guide to what Congress in­
tended by the term “ body politic.”
   The Commissioner also points to the debate on the House floor as sup­
porting his contention that the United States is a body politic. He first
states that the phrase “ State or any political or municipal subdivision
th e re o f’ was originally suggested in the House, but was withdrawn in
favor o f the term “ body politic.” He also refers to the fact that Represent­
ative Elston said it would “ cover everything,” and that Representative
Miller stated that he had “ no doubt but that in a very general sense a body
politic consists o f any body or group o f individuals grouped together for
governmental political purposes.” While these aspects o f the debate,
taken alone, might suggest a broad interpretation o f the term body politic,
I believe any such interpretation would ignore the underlying genesis and
focus o f the debate—i.e., the claims o f the States and smaller political
entities.

                                     C.
   The judicial decisions in this area further support my conclusion. In
United States v. Securities Corporation General, 4 F. (2d) 619, 622 (D.C.
Cir. 1925), a ff’d, 269 U.S. 283 (1925), the court responded to the conten­
tion that the United States was entitled to satisfy war claims against Ger­
many out o f the funds held by the Alien Property Custodian:
     It is nowhere provided in the act that enemy funds in the pos­
     session o f the defendants may be subjected to the payment o f

                                     130
      claims due the United States. N or do we think that the United
      States is a “person, ” as mentioned in section 9 o f the act, or such
      a party as can take advantage o f the provisions thereof. . . .
      The fund has been set aside by the act for the satisfaction o f such
      claims as may be legally brought against it by claimants other
      than the United States. The United States has relinquished any
      interest it may have had in the fund in favor o f creditors o f the
      enemy, in this instance the German government. [Emphasis
      added.]
In an unreported decision, Judge Faris o f the Eastern District o f Missouri
responded in the same way to a similar contention:
      By section 9 o f the act it was enacted, however, that the money
      accruing from such confiscations might be used in paying debts
      due by the Imperial German Government to loyal citizens o f the
      United States. It is then, obviously, only upon the theory that the
       United States is a person, within the meaning o f section 9 o f the
      act, that such a view can stand fo r a minute. I think this is so ob­
      viously erroneous, as I have already briefly attem pted to point
      out, that the m atter needs no further exposition* * *.
         Again, this fund was, absent section 9, the property o f the
      United States for any use to which the United States wished to
      devote it. The very fact that this section was enacted proves that
      the word “person” in the act does not include the United States.
      [Emphasis added.] [Mercantile Trust Co. v. White, printed in
      Record at 32-37, Hicks v. Mercantile Trust Company, 269 U.S.
      283 (1925).]
While these decisions dealt with a different issue than the one presented
here, the courts clearly believed that the United States was not a person en­
titled to assert claims under section 9(a).
   The Commissioner notes that the Supreme C ourt, in reviewing these
decisions, did not adopt the rationale that the United States was not a
“ person” within section 9(a). Rather, the C ourt said:
      Even assuming, notwithstanding Davis v. Pringle, 268 U.S. 315,
      318, that the United States is a “ person” given the right to sue by
      § 9, there is no reservation o f priority in the Act, or o f a right to
      intermeddle in the private suit o f another, or o f any advantage
      that it might have retained as captor o f the fund. W hether from
      magnanimity or forgetfulness, it has assumed the position o f a
      trustee for the benefit o f claimants and has renounced the power
      to assert a claim except on the same footing and in the same way
      as others, if at all. [White v. Mechanics Securities Corporation,
      269 U.S. 283, 301 (1925).]
The Supreme C ourt’s reference to Davis v. Pringle, a case in which the
Court held that the United States was not a “ person” within the meaning
o f the Bankruptcy Act, could suggest that the Court entertained these
same doubts under the Trading with the Enemy Act. In any event, the

                                    131
Court certainly said nothing to refute the lower courts’ opinions on this
subject, and the fact that it chose an alternate rationale cannot mean that
the lower courts’ decisions are deprived entirely o f their force or per­
suasive weight. I thus believe that these decisions may legitimately be
relied on in support o f my conclusion that the United States is not entitled
to file a claim under section 9(a).

                                            D.
    One aspect o f the Act might suggest a conclusion different than that
 reached here. Section 24(a) o f the Act provides in part:
       T he Alien Property Custodian is authorized to pay all taxes (in­
       cluding special assessments), heretofore or hereafter lawfully
       assessed by any body politic against any money or other property
       held by him or by the Treasurer o f the United States under this
       Act * * *. [50 U .S.C . App. § 24(a).]
 Even though this provision refers only to taxes assessed by a “ body
 politic,” Congress intended that it would “ permit the Alien Property
 Custodian to pay all lawful taxes.” H. Rept. No. 1565, 67th Cong., 4th
 sess., 6 (1923). Indeed, the provision has been interpreted to impose a duty
 on the Alien Property C ustodian to pay Federal income taxes. 33 Op.
 A .G . 511 (1923). This provision could thus suggest that Congress deemed
 the United States to be a “ body politic” under the Act.
    I doubt, however, whether this is actually the case, at least with respect
 to situations involving claims o f the United States. As we have discussed
 above, the structure and underlying purposes o f the Act, its legislative
 history, and judicial decisions all indicate that the United States is not a
 person within section 9(a). I do not believe that Congress’ action on an en­
tirely different topic, and occurring at a separate tim e,6 is sufficient to
alter the thrust o f these authorities which directly bear on the question
presented here.
    Moreover, it is not entirely clear that Congress itself focused on this
issue in enacting section 24(a). This section appears to have been drawn
from a similar provision in the sundry civil appropriation act for fiscal
year 1919. Act o f July 1, 1918, ch. 113, 40 Stat. 646. The term “ body
politic” in this latter provision was obviously not affected by any o f the
factors discussed above, and as such may well have been meant to include
the United States. The same provision was then inserted, apparently with­
out much deliberation, into the Trading with the Enemy Act. Even though
Congress may thus have intended for this provision to encompass the
United States, Congress does not appear to have given much thought as
to how this provision would operate in the context o f this latter Act,



  ‘ While the T rading with the Enemy Act (including section 9) was originally enacted in
1917, the provisions relating to taxes were first inserted into the Act in 1923. See Act of
March 4, 1923, ch. 285, § 2, 42 Stat. 1516.

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 particularly in light o f that A ct’s definitions and Congress’ intent under­
 lying them.
    This point is supported by subsequent congressional action. In 1928
Congress added section 24(b), 50 U.S.C. App. § 24(b), to the Act, which
provides in part:
      In the case o f income, war-profits, excess-profits, or estate taxes
      imposed by any Act o f Congress, the am ount thereof shall,
      under regulations prescribed by the Commissioner o f Internal
      Revenue with the approval o f the Secretary o f the Treasury, be
      com puted in the same m anner (except as hereinafter in this sec­
      tion provided) as though the money or other property had not
      been seized by or paid to the Alien Property Custodian, and shall
      be paid as far as practicable, in accordance with subsection (a) of
      this section.
The amendment was first suggested in the House o f Representatives; its
sponsor stated that “ this amendment is simply to clear up a doubt and
protect the Government in the matter o f taxation.” 69 C o n g . R ec. 903
(1927) (remarks o f Representative Green). [Emphasis added.]’ While the
legislative history does not reveal the “ doubt” which occasioned this
amendment, it does not seem unreasonable to speculate that it may have
arisen due to the limited nature o f the term “ body politic” in the Act.
Since the provision in section 24(a) is otherwise quite broad, and since sec­
tion 24(b) provides for the payment o f taxes in accordance with section
24(a) “ as far as practicable,” it would seem that section 24(b) does little to
achieve its purpose o f protecting “ the Government in the m atter o f taxa­
tion” except by specifically including the United States’ taxes within the
Act. As such, the fact that Congress thought such action was necessary
would support my conclusion that the United States is not a body politic
under the Act.
   For the reasons discussed above, I do not believe that the Commissioner
o f Customs was entitled to file a claim under section 9(a) o f the Act. I
therefore overrule the decision o f the Director o f the Office o f Alien P rop­
erty and deny Title Claim 63801.

Dated: May 8, 1979.

                                              / s / M ic h a e l J . E g a n
                                           Associate A ttorney General




   ’ Provisions added in the Senate went beyond this statem ent o f intent, see S. Rept. 273,
70th Cong., 1st sess., 34 (1928), but nothing was said in the Senate to cast doubt on this
original purpose.

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