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

216 F.2d 407, 1954 U.S. App. LEXIS 2982

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 1954
• Docket: 13988_1
• Status: Published

Opinions

PER CURIAM.

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. He necessarily concedes that the Act now relied on was in effect at the time of the Supreme Court’s adverse holding, supra — a circumstance of which the Court was aware and of which passing notice was taken in a footnote to its opinion. The new issue introduced in this second suit was one which appellant could have raised and litigated before the Court on the first appeal.² There is nothing in the Court’s opinion to indicate that a problem as to the Act’s possible bearing on the question of remedy was to remain open for further litigation. The very language of the opinion shows that the Court thought it was finally deciding the point of appellant’s judicial remedy as respects the deportation order of January 11, 1952. For example, 345 U.S. at page 235, 73 S.Ct. at page 606, of the opinion it said: “Now, as before, he [appellant] may attack a deportation order only by habeas corpus.” [Emphasis ours.] In these circumstances it is for the Supreme Court, not for us, to say that despite its ruling a second attack of the identical nature and directed toward the same order may properly be waged.

Appellant points to the decision of the Court of Appeals of the District of Columbia Circuit in Rubinstein v. Brownell, 1953, 92 U.S.App.D.C. 328, 206 F.2d 449, affirmed without opinion by an equally divided Court, 346 U.S. 929, 74 S.Ct. 319. That case gives us no aid in interpreting the Court’s decision in Heikkila. It determined only that a deportation order which became final after the 1952 Act went into effect could be judicially reviewed other than by habeas corpus.

Appellant’s present suit is in no real sense a new action. It is but a repetition or continuation of the litigation theretofore unsuccessfully waged. We have no alternative but to hold that the earlier decision of the Supreme Court is res judicata.

The dismissal is affirmed.

1 . The order was based on § 22 of the Internal Security Act of 1950, 64 Stat. 1006 [now Immigration and Nationality Act, § 241, 8 U.S.C.A. § 1251], making membership in the Communist Party per se a ground for deportation.

2 . That appeal was not argued until February 4, 1953, well over a month after the 1952 Act by its terms became effective, namely on December 24, 1952. It may be observed here that the Act had actually been passed and approved much earlier in the year.