John Marshall Harlan II

“ We find no design in the Rules evidenced by this pattern of words to establish the clear distinction petitioner detects between mere failure and willful refusal insofar as Rule 37 (b) is concerned. The word 'refusal,' by way of example, clearly refers in several instances in subsection (a) of the Rule to noncompliance for any reason. And Rule 41 (b) in turn, discussed above in text, refers simply to 'failure * * * to comply' but might as applied to a particular situation require a showing of willfulness to justify dismissal. ”

“ However, in view of statements by the Swiss Government, following petitioner's intercession, that certain records not deemed to violate the Swiss laws would be released, and in view of efforts by petitioner to secure waivers from those persons banking with the Sturzenegger firm who were protected by the Swiss secrecy laws, and hence whose waivers might lead the Swiss Government to permit production, the court suspended the effective date of its dismissal order for a limited period in order to permit petitioner to continue efforts to obtain waivers and Swiss consent for production. ”

“ But these problems go to the adequacy of petitioner's proof and should not on this record preclude petitioner from being able to contest on the merits.
On remand, the District Court possesses wide discretion to proceed in whatever manner it deems most effective. It may desire to afford the Government additional opportunity to challenge petitioner's good faith. It may wish to explore plans looking towards fuller compliance. Or it may decide to commence at once trial on the merits. We decide only that on this record dismissal of the complaint with prejudice was not justified. ”

“ The District Court here concluded that the Sturzenegger records might have a vital influence upon this litigation insofar as they shed light upon petitioner's confused background. Petitioner is in a most advantageous position to plead with its own sovereign for relaxation of penal laws or for adoption of plans which will at the least achieve a significant measure of compliance with the production order, and indeed to that end it has already made significant progress. ”

“ It asserts no immunity from them. It asserts only its inability to comply because of foreign law.
In view of the findings in this case, the position in which petitioner stands in this litigation, and the serious constitutional questions we have noted, we think that Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner. ”

“ Past decisions of this Court emphasize that this summary power to seize property which is believed to be enemy-owned is rescued from constitutional invalidity under the Due Process and Just Compensation Clauses of the Fifth Amendment only by those provisions of the Act which afford a non-enemy claimant a later judicial hearing as to the propriety of the seizure. ”

“ In 1948 petitioner, a Swiss holding company also known as I. G. Chemie or Interhandel, brought suit under § 9 (a) of the Trading with the Enemy Act, 40 Stat. 419, as amended, 50 U.S.C.Appendix, § 9 (a) , 50 U.S.C.A.Appendix, § 9 (a) , against the Attorney General, as successor to the Alien Property Custodian, and the Treasurer of the United States, to recover these assets. This section authorizes recovery of seized assets by ' (a) ny person not an enemy or ally of enemy' to the extent of such person's interest in the assets. ”