Herbert Brownell, Jr., Attorney General, and as Successor to the Alien Property Custodian v. Anni H. J. E. Oehmichen

243 F.2d 637

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 29, 1957
• Docket: 13424_1
• Status: Published

Opinions

PRETTYMAN, Circuit Judge.

Appellee Anni H. J. E. Oehmichen, widow of Erhard M. Oehmichen, brought a civil action against the Attorney General under the Trading with the Enemy Act¹ to establish her right in certain property vested by the Alien Property Custodian in 1947, 1950 and 1951. The property consisted of checking accounts in Chicago and Newark banks, shares of stock in a corporation formerly controlled by Mr. Oehmichen, and a claim against that corporation. After trial the District Court made findings of fact and conclusions of law and entered a judgment directing the Attorney General to transfer to Mrs. Oehmichen all of the property. The Attorney General appeals.

Mr. and Mrs. Oehmichen were German citizens. They entered the United States separately in 1933, were married in London in 1934, and returned to the United States that same year. They entered for permanent residence. They engaged in the importing business, principally from Germany. Shortly after the declaration of war with Germany they were arrested as enemy aliens. After a hearing before an Alien Enemy Control Board Mr. Oeh-michen was ordered interned for the duration of the war. Subsequently, in December, 1942, he was interned at the •Crystal City, Texas, Alien Internment •Camp. Mrs. Oehmichen voluntarily joined him in internment. Beginning in May, 1942, the Oehmichens from time to time filed requests for repatriation to •Germany. They were finally repatriated and sailed on the Gripsholm early in •January, 1945. On January 29, 1945, they arrived in German-held territory at Bregenz, Austria. They lived there until October, 1945, when they moved, first to Bavaria, then to Hamburg, and then to Wiesbaden. Mr. Oehmichen died in Wiesbaden in May, 1948. Later that year Mrs. Oehmichen went to Switzerland, obtained a visa from an American consul, and came to the United States as .an immigrant. She has since become a citizen of the United States and reestablished the import business.

Section 9 of the Trading with the Enemy Act permits any person not an ■enemy to institute a civil action for the recovery of property seized by the Alien Property Custodian. Section 2 of that Act defines “enemy” to include “Any in■dividual * * * of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war”. The Attorney ■General argues that on the face of the statute and on the face of the facts Mrs. •Oehmichen was resident within enemy territory and therefore an enemy not entitled to bring an action for recovery ■of seized property.

The District Court held that the Oeh-michens were not resident within enemy territory, because they went there as a matter of choice in preference to internment, that choice being dictated by the rigors of internment and their difficulties with other internees. The District Court found that the Oehmichens were well treated by the authorities but that pro-Nazi groups, which were in the majority at the internment camp, “continually stirred the emotions, fears and anxieties of plaintiff and her husband.” It found that Mr. Oehmichen was once physically attacked, once a stone was thrown at him, once they were shouted at, and they were ostracized by the pro-Nazi groups. The court found: “The requests for repatriation to Germany by plaintiff and her husband were made solely to escape internment and the emotional problems created thereby.”

The Oehmichens were citizens of Germany and were actually living on German territory during the war. If they had had their way they would have been in Germany for the duration of the war. In May, 1942, Mr. Oehmichen executed and filed a petition for repatriation “In the event of my internment” and further petitioned that his wife be permitted to accompany him “to my native land”. Thereafter letters and petitions were filed July 8, 1942, July 26, 1942, September 2, 1942, and September 4, 1942. All these requests for repatriation were made while Mr. Oehmichen was at Ellis Island and before he was sent to the internment camp in Texas. They were made before he experienced internment.

The record shows that at the internment camp the authorities provided a wide range of recreational, activities, including movies twice a week, a huge swimming pool, baseball, tennis, and badminton. There was a thirty-bed hospital. Mrs. Oehmichen testified that the food supply was very good and very adequate —“Yes, very, definitely.” Mrs. Oeh-michen cooked for her husband. They were supplied certain items of furniture, and if they wanted anything else they could buy it. They had a radio and also had their dog sent down from New York. Mrs. Oehmichen testified, in respect to the living conditions: “However, we would have put up with that, if we wouldn’t have had the Nazi pressure in the camp.”

In May, 1943, and January and February, 1944, they renewed their appeals for repatriation. On June 27, 1944, Mr. Oehmichen filed a letter, addressed to the Officer in Charge of the camp, advising him, “Should a review of my case result in a decision qualifying me for a parole, you are advised that I would not accept same.” Thus he refused freedom in America. Surely that choice was not induced by difficulties in internment.

It is argued that under the rule of the Guessefeldt case² the Oehmichens were not possessed of the requisite intention to make them “resident within” Germany. We think that case does not apply here. Guessefeldt was visiting in Germany and was physically restrained from leaving it. The Court held that, being under such restraint and seeking at all times to return to the United States, he was not resident within Germany.

The Oehmichens were in Germany by their own free choice. The explanation that because of difficulties with pro-Nazis they were compelled to return to Nazi Germany is singularly unimpressive. As a legal matter we are of opinion that mere discontent with conditions in a well-run internment camp is not the compulsion which would translate otherwise voluntary repatriation into departure under duress. Internment is the established international treatment of resident enemy aliens by all civilized countries. ³ The Oehmichens chose to return to an enemy country rather than to undergo that established treatment.

If the argument of Mrs. Oehmichen were valid, all German citizens in the United States at the outbreak of the war could have returned promptly to Germany, exercising a wish not to be interned here, lived there until the war’s end, and returned here to claim they had never been resident in Germany. Under her argument no German national residing in the United States prior to the war, and moving by choice to Germany during the war, would have become resident in-Germany, as every such person was faced with the possibility of internment here. We think the statute reflects no-intention to achieve such a result.

We do not have in this case anything resembling the facts depicted in such cases as Guessefeldt, supra, Acheson v. Murakami,⁴ Kaku Nagano v. McGrath,⁵ or Yaichiro Akata v. Brownell.⁶ The Oehmichens were willing residents of Germany.

The judgment of the District Court must be reversed and the case remanded for entry of a judgment dismissing for lack of jurisdiction.

Reversed and remanded.

1 . Sec. 9, Act of Oct. 6, 1917, 49 Stat. 419, as amended, 50 U.S.C.A.Appendix, § 0(a).

2 . Guessefeldt v. McGrath, 1952, 342 U.S. 308, 72 S.Ct. 338, 96 L.Ed. 342.

3 . See full discussion in Johnson v. Eisen-trager, 1950. 339 U.S. 763, 772 et seq., 70 S.Ct. 936, 94 L.Ed. 1255.

4 . 9 Cir., 1949, 176 F.2d 953.

5 . 7 Cir., 1951, 187 F.2d 759.

6 . D.C.D.Hawaii, 1954, 125 F.Supp. 6.