The opinion of the court was delivered by: JONES
Following a reversal and remand by the Supreme Court, 386 U.S. 484, 87 S. Ct. 1188, 18 L. Ed. 2d 244, a consent judgment and decree was entered herein on July 6, 1967. Its terms were made provisional and notice of those terms was given by the parties to all known claimants entitled to payment pursuant to the judgment by individual mailed notification to their last known addresses and by appropriate public notice. Those notices made known that the claimants had the right to be heard by motion or application, filed not later than December 1, 1967, opposing any provision of the judgment and decree prior to final promulgation. The Court has retained jurisdiction to modify, alter, or amend the terms of the judgment and decree pending promulgation of the final order herein.
Certain motions and other forms of opposition have been filed. Counsel for the plaintiffs and counsel for the defendant have filed written responses. One oral hearing has been held with respect to such opposition. The Court took under advisement the positions stated by the various parties.
Petitioners, Yojuro Fujisue and Setsu Fujisue, object to the provisional consent judgment and decree charging that it disregards Hawaii bank liquidation laws. They represent a number of Hawaii residents who hold yen certificates of deposit procured from the Hawaii branch of Yokohama Specie Bank, Ltd., but who concededly did not file timely claims with the Office of Alien Property. Petitioners seek to intervene pursuant to Rule 24, Fed.R.Civ.P., and to be paid out of any surplus remaining after the Honda claimants and their counsel have been paid. Petitioners contend that they are so entitled to intervene and be paid because the order which vested the assets of the Hawaii branch of Yokohama Specie Bank with the Custodian was of the "right, title and interest" variety and because Hawaii law is applicable to distribution. Counsel for petitioners, in oral argument, further stated that if petitioners were not permitted to intervene in this proceeding, they would be precluded from obtaining relief in any other forum hereafter.
Whether Vesting Order 1501, 8 Fed.Reg. 10032, was of the "right, title and interest" variety or of the "res" type and whether Hawaii law is or will be at any future time applicable to distribution of any surplus remaining after Honda claimants and their counsel have been paid, as contended by petitioners, are questions which need not be decided at this time. This litigation is concerned only with the funds which will be distributed to Honda claimants and their counsel, not with any surplus which might survive the distribution, and Federal law is unquestionably applicable to this aspect.
In this connection, § 34(b) of the Trading with the Enemy Act, 50 U.S.C.App. § 34(b), provides in pertinent part as follows:
The Custodian shall fix a date or dates after which the filing of debt claims in respect of any or all debtors shall be barred * * * and shall give at least sixty days' notice thereof by publication in the Federal Register * * *.
Acting under the above section, the Alien Property Custodian fixed November 18, 1949
as the final date for filing debt claims with that office against the funds of the Yokohama Specie Bank, Ltd. 14 Fed.Reg. 5732. The language of this statute and the order issued pursuant thereto make it clear that no yen certificate holder is entitled to receive payment in this action unless he initially filed a claim with the Custodian prior to the cutoff date. Since petitioners herein failed to comply with this preliminary requirement, their application to intervene is necessarily untimely.
Even if the application of petitioners was timely filed, the reliance of counsel in oral argument on the case of Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S. Ct. 932, 17 L. Ed. 2d 814 (1967), in support of petitioners' position is misplaced. In the case of Hobson v. Hansen, 44 F.R.D. 18 (D.C.D.C., 1968), Judge Wright had occasion to deal with the Cascade case. He said:
Cascade should not be read as a carte blanche for intervention by anyone at anytime.
[It] is concerned with protecting an interest which practically speaking can only be protected through intervention in the current proceeding.
[It] does place squarely on the petitioners the obligation to demonstrate and specify a substantial interest which they can only protect through ...