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April 30, 1993

HOANG NGOC CAN, NGUYEN HUU TO, VAN U DUC and Other Citizens of South Vietnam on April 30, 1975, Plaintiffs,


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge,

 On April 30, 1975, eighteen years ago to the day of the filing of this Opinion and Order, the terrible engines of injustice were visited upon the people of the Republic of South Vietnam. The communist regime of North Vietnam invaded its southern sister-state, which disintegrated and fell under the brutal onslaught of the attack. More than one million citizens of South Vietnam fled the country in the pursuit of freedom outside the territory of their homeland. Additionally, many citizens of South Vietnam were imprisoned by the communist government without cause or justification. It is indisputable that many former citizens suffered at the hands of the invading communist government, whether due to the conditions endured when the government of South Vietnam collapsed or due to the hardship experienced by those people who left their homes in the pursuit of freedom.

  This action is not about the adversity endured by the citizens of the Republic of South Vietnam before, during, and after the Spring of 1975. Rather, this action concerns plaintiffs' claims that they are entitled to recover for their own use any assets of the defunct Republic of South Vietnam that may be found in the United States. All such assets have been blocked since 1975 pursuant to the Trading With the Enemy Act ("TWEA" or "the Act") and the Foreign Assets Control Regulations (the "Regulations"). 50 U.S.C. App. §§ 1-44; 31 C.F.R. § 500.101-.901. Plaintiffs seek a preliminary injunction directing that (1) the United States freeze all assets of the former government of South Vietnam held by it or maintained under its control as custodian for plaintiffs, pending resolution of this action; (2) the United States designate plaintiff's counsel as the holder of all blocked accounts and properties; (3) the cost of managing the assets and attorneys fees and costs related to this action be paid from the frozen assets; (4) the communist regime of North Vietnam be declared an enemy of the United States; (5) the "Foreign Assets Control Office" disregard any instructions of the State Bank of Vietnam with regard to the blocked assets; and (6) plaintiffs be acknowledged as the sole and rightful owners of all assets belonging to the Republic of South Vietnam on April 30, 1975. Further, plaintiffs seek an accounting of the assets and the transfer of all title, control, and possession of the assets to plaintiffs.

 The United States opposes the motion for a preliminary injunction and additionally cross-moves for an Order dismissing the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The government argues that the United States has not waived its sovereign immunity with respect to the types of claims presented in this action and that the issues to be resolved are nonjusticiable because any resolution of plaintiffs' claims by this Court necessarily would impinge on the President's sole power to recognize foreign governments. For the following reasons, the cross-motion of the United States to dismiss the action for lack of subject matter jurisdiction hereby is granted. Further, the Court has determined that plaintiffs' claims present nonjusticiable political questions that properly may be resolved only by the executive branch. Accordingly the motion of the United States to dismiss this action hereby is granted and plaintiffs' motion for a preliminary injunction must be denied.


 A. Plaintiffs' Claims

 Plaintiffs' principal claim in this action is that they

are the legitimate successors-in-interest of the former Republic of South Vietnam and/or the former government of South Vietnam under its various official an/or unofficial names.

 Complaint, P 11. Plaintiffs thus assert that they are the rightful owners of all assets owned by the Republic of South Vietnam when it collapsed on April 30, 1975. Also on April 30, 1975, President Ford blocked the payment or other transfer of such assets or the assets of "designated nationals" in accordance with section 5 of TWEA. See 31 C.F.R. § 500.201.

 Subject matter jurisdiction over this action "is mainly founded on the existence of a Federal question." Complaint, P 3. The complaint suggests that subject matter jurisdiction exists over this action merely because the United States is a party, see Complaint, P 3, but also states that the action arises under TWEA and related regulations. Complaint, P 4. Although not pleaded in the complaint, plaintiffs also suggest that subject matter jurisdiction may properly lie pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 2671 et seq., or because this is a suit to quiet title in property in which the United States has an interest pursuant to 28 U.S.C. §§ 2409, 2409a, and 2410. See Plaintiff's Memorandum of Law supporting Plaintiffs' Order to Show Cause ("Plaintiff's Memo"), at 15-16.

 TWEA gives the President broad powers to seize or block the assets of foreign governments and their nationals and to prohibit all economic transactions with designated foreign countries or "designated nationals," as defined in the Act. See generally 50 U.S.C. App. § 1 et seq.; 31 C.F.R. § 500.101-.901. South Vietnam became subject to the blocking provisions of the Act at 12:00 p.m., eastern daylight time, on April 30, 1975. 31 C.F.R. § 500.201 (schedule of "designated foreign countries"). As defined in TWEA, a designated national is any designated foreign country, any person or entity who resided in a blocked nation after the effective date of the blocking, or any person using funds on behalf of the government of a blocked nation. 31 C.F.R. § 500.301-.308.

 TWEA provides for the seizure or blocking of the assets of enemies of the United States and their allies. When property is seized, all title to the property vests in the United States and the property is placed in the care of the Alien Property Custodian. 50 U.S.C. App. § 6. TWEA permits an action for the return of seized property to be brought against the United States pursuant to section 9(a) of the Act.

 Section 5(b) of TWEA permits the President to block or freeze the assets of designated countries or nationals rather than effecting a seizure. Section 5(b) provides, in pertinent part:

(b)(1) During the time of war [or during any other period of national emergency declared by the President], *fn1" the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise --
(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit between, by, through or to any banking institution . . ., and
(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to or transactions involving, any property in which any foreign country or any national thereof has an interest.
by any person, or with respect to any property, subject to the jurisdiction of the United States . . . .

 50 U.S.C. App. § 5(b). *fn2" When assets are blocked but are not seized, judicial review does not lie under section 9(a) of the Act because that section provides a means "through which eligible persons may seek recovery of property seized under the Act." Cornet Stores v. Morton, 632 F.2d 96, 98 (9th Cir. 1980) (emphasis supplied), cert. denied, 451 U.S. 937 (1981); 50 U.S.C. App. § 9(a). The assets at issue here have never been seized, although the blocking order has remained in effect for eighteen years. "The blocking of the assets," however, "does not affect the interest, right or title to them which [plaintiffs] may possess." Tran Qui Than v. Regan, 658 F.2d 1296, 1301 (9th Cir. 1981), cert. denied, 459 U.S. 1059 (1982). Although "blocking involves a deprivation of the employment of a property interest . . . ., that deprivation is temporary . . . and is not equivalent to vesting." Id., 658 F.2d at 1304 (finding that the blocking of assets does not constitute a taking).

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