William Heikkila v. Bruce G. Barber, Individually and as District Director of Immigration and Naturalization Service

216 F.2d 407 William HEIKKILA, Appellant, v. Bruce G. BARBER, Individually and as District Director of Immigration and Naturalization Service, Appellee. No. 13988. United States Court of Appeals Ninth Circuit. Oct. 13, 1954. Gladstein, Andersen & Leonard, Norman Leonard, Lloyd E. McMurray, San Francisco, Cal., for appellant. Lloyd H. Burke, U.S. Atty., George A. Blackstone, Asst. U.S. Atty., San Francisco, Cal., for appellee. Before HEALY, ORR, and POPE, Circuit Judges. PER CURIAM. 1 On January 11, 1952 a final order for the deportation of appellant was made on the ground that he, an alien, had been a member of the Communist Party from 1929 to 1939, a period subsequent to his entry into this country. 1 He thereupon brought an action against the District Director of the Immigration Service by a complaint seeking 'review of agency action,' plus injunctive and declaratory relief. On dismissal of the suit by a three-judge court he appealed to the Supreme Court, which, on March 16, 1953 affirmed the dismissal, holding that habeas corpus provided the sole judicial remedy. Heikkila v. Barber, 345 U.S. 229 , 73 S.Ct. 603 , 97 L.Ed. 972 . 2 Subsequently appellant brought in the court…

On January 11, 1952 a final order for the deportation of appellant was made on the ground that he, an alien, had been a member of the Communist Party from 1929 to 1939, a period subsequent to his entry into this country. 1 He thereupon brought an action against the District Director of the Immigration Service by a complaint seeking “review of agency action,” plus injunctive and declaratory relief. On dismissal of the suit by a three-judge court he appealed to the Supreme Court, which, on March 16, 1953 affirmed the dismissal, holding that habeas corpus provided the sole judicial remedy. Heikkila v. Barber, 345 U.S. 229 , 73 S.Ct. 603 , 97 L.Ed. 972 .

Subsequently appellant brought in the court below a second action against the District Director leveled against the same deportation order and seeking the same relief as before. His complaint was dismissed on motion of the government and the matter is before us on appeal. Confronted with the Supreme Court's holding above cited he contends that the Immigration and Nationality Act of 1952, 66 Stat. 163 , 8 U.S.C.A. § 1101 et seq., affords him a remedy, other than by habeas corpus, to inquire into the validity of the deportation order.…

(concurring).

I concur in the affirmance of the judgment. I arrive at the same result by a somewhat different route.

The complaint considered in Heikkila v. Barber, 345 U.S. 229 , 73 S.Ct. 603 , 97 L.Ed. 972 , was filed before the 1952 Act was passed, and the authority of the trial court to entertain it would normally be judged by the law in effect when the complaint was filed. The Supreme Court was not called upon to observe, either in passing, or otherwise, that a new action, instituted after the effective date of the 1952 Act, might or might not have a better standing. 1 Because the complaint there in question was filed prior to the 1952 Act, the issue as to the operation of the new Act was not only not litigated but it was not an issue that might have been litigated. The decision, I think, was not res judicata.

To my mind, therefore, the controlling question is whether the 1952 Act did, as appellant asserts, have the retroactive effect of permitting a new action, such as this one, for the purpose of reviewing deportation orders made prior to the 1952 Act. As the opinion of the majority observes, Rubinstein v. Brownell, 92 U.S. App.D.C. 328, 206 F.2d 449 , is no help on that…