Herbert Brownell, Jr., Attorney General of the United States v. Einar Rasmussen

221 F.2d 541, 95 U.S. App. D.C. 260, 1955 U.S. App. LEXIS 3535

Opinion

PER CURIAM.

This is an action for a declaratory judgment, seeking review of an order of deportation. The Government appeals from a judgment for the plaintiff, who is an alien not claiming American citizenship. The deportation order in this case was made under the provisions of the Immigration Act of 1917, 39 Stat. 874, and neither party suggests that the 1952 Act, 66 Stat. 163, has any application.

The District Court is without jurisdiction to review the order com plained of other than in a habeas corpus proceeding. Heikkila v. Barber, 1953, 345 U.S. 229, 235, 73 S.Ct. 603, 97 L.Ed. 972. This court’s order of February 6, 1951, granting a Government motion to remand tie case to the District Court for trial, was based on the theory that the decision in McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, would support jurisdiction in the present case. We think the later decision in Heikkila shows this to have been a mistake, and that our previous order has not become the law of the case which we are required to perpetuate. See White v. Higgins, 1 Cir., 1940, 116 F.2d 312. The case must be remanded-to the District Court with directions to vacate the judgment and dismiss the action. Zank v. Landon, 9 Cir., 1953, 205 F.2d 615.

So ordered.