186 F.2d 766 (9th Cir. 1951), 12251, McGrath v. Tadayasu Abo

Docket Nº:12251, 12252.
Citation:186 F.2d 766
Party Name:McGRATH, Atty. Gen. et al. v. TADAYASU ABO et al. McGRATH, Atty. Gen. et al. v. KANAME FURUYA et al.
Case Date:January 17, 1951
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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186 F.2d 766 (9th Cir. 1951)

McGRATH, Atty. Gen. et al.



McGRATH, Atty. Gen. et al.



Nos. 12251, 12252.

United States Court of Appeals, Ninth Circuit.

January 17, 1951

Rehearing Denied Feb. 27, 1951.

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[Copyrighted Material Omitted]

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H. G. Morison, Asst. Atty. Gen., Frank J. Hennessy, U.S. Atty, Robert B. McMillan, Asst. U.S. Atty, San Francisco, Cal., Enoch E. Ellison, Sp. Asst. to Atty. Gen., Paul J. Grumbly, Atty., Dept. of Justice, Washington, D.C., for appellants.

Wayne M. Collins, San Francisco, Cal., for appellees.

A. L. Wirin, Fred Okrand, Los Angeles, Cal., for appellee Kawakami.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

DENMAN, Chief Judge.

These are appeals 1 from two decrees based on findings that each of some 4315 plaintiffs below, Japanese descended native born United States citizens, were coerced by the conditions at the Tule Lake concentration camp in California, such conditions being caused by the United States officials having the plaintiffs in their charge, into a mental condition causing each against his or her free will to execute a document, procured in a proceeding before the Attorney General under Sec. 401(i) of the Nationality

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Act of 1940, as amended, 2 renouncing the plaintiff's American citizenship. It was found further that the Attorney General had determined that each plaintiff is a dangerous enemy alien, subject to deportation to Japan, and that at the time the complaints were filed each was held for deportation, purportedly pursuant to the Alien Enemy Act of 1798, 3 Presidential Proclamations 2525 4 and 2655 5 and the Regulations issued by the Attorney General thereunder. 6

The decrees held each of the 4315 renunciation documents to be null and void ab initio, and order each cancelled and set aside and declared each appellee to be and to have been from birth a citizen of the United States and enjoined the defendants from restraining any plaintiff of his liberty or deporting any to Japan or otherwise interfering with his rights as a citizen.

The two complaints filed by some 975 named plaintiffs claim a several right to the rescission of his or her renunciation and a declaration that the enforced renunciation had not disturbed each plaintiff's continuous American citizenship and the several right of each not to be incarcerated and deported to Japan. Each plaintiff sought identical relief: the court's declaration that each have his renunciation set aside and be declared to be and to have been continuously a United States citizen, and an injunction restraining the defendants from their continued incarceration and any interference with their rights as citizens. The complaints further stated a case or controversy against defendants as required by Article III, section 2, clause 1, of the Constitution in the allegation that the defendants were restraining them for deportation to Japan. The answers to the amended complaints containing allegations of the same causes of action admitted the finding as to each that he is a dangerous alien enemy under the Presidential Proclamations and regulations supra and his restraint for deportation, and joined issue on the allegations that each had been coerced into his or her renunciation.

While the complaints did not expressly state that they sought relief for all other persons having the same rights and remedies, on motions for inclusion of additional named plaintiffs before the final decision on the merits the court treated them as if they had been so drawn, and we so regard them. Rule 15(b) Federal Rules of Civil Procedure, 28 U.S.C.A.

We think these are class suits within Rule 23(a)(3) of the Federal Rules of Civil Procedure providing:

'Rule 23, Class Actions

'(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

'(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.'

We interpret the phrase 'common relief' as covering cases where all the plaintiffs seek the same type of relief, such as damages or an injunction, as distinguished

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from cases where some plaintiffs seek an injunction while others seek damages. In this we follow the ruling of the Second Circuit in which it is held that Rule 23(a)(3) covers cases where each plaintiff has a right to recover damages for a wrong done all, even though the amount of damages recoverable differs for the different plaintiffs. Oppenheimer v. F. J. Young & Co., 2 Cir., 144 F.2d 387, 390. The same principle was stated by the Seventh Circuit in Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84, 88. We agree with the Second Circuit that the relief attained in class suits under Rule 23(a)(3) extends only to the named plaintiffs actually becoming parties before judgment. York v. Guaranty Trust Co. of New York, 2 Cir., 143 F.2d 503, 529; cf. Schatte v. International Alliance, 9 Cir., 183 F.2d 685.

We thus have suits initiated by some 975 imprisoned plaintiffs, constituting members of a class, suits over which the district court clearly had jurisdiction because of such imprisonment for deportation by the Attorney General. Nationality Act of 1940, Sec. 503, 8 U.S.C.A. § 903. Having such jurisdiction to establish the wrong done, equity may enjoin the threatened continuance of the wrong.

Some 3300 named plaintiffs were later added to the 975 of the original complaints before the cases were decided. It is not questioned that all these added plaintiffs fully met the necessary jurisdictional requirements at the time the complaints were filed. However, many of these several thousand were released from detainment for deportation by the Attorney General when added as plaintiffs and the question is whether in such a class suit they lost their right of intervention by such release. In this connection, this circuit has held that legislation for class suits should be liberally construed. Culver v. Bell & Loffland, 9 Cir., 146 F.2d 29, 31, so also the Eighth Circuit in Montgomery Ward Co. v. Langer, 168 F.2d 182, 187.

Applying this liberal rule of interpretation, we think the court had jurisdiction as to the later added plaintiffs who were confined for deportation when the complaint was filed. We also think the court properly retained its jurisdiction as to those plaintiffs who were under detention at the time they became parties but thereafter were released.

In this we need not go so far as does Professor Moore, who was chief research assistant to the reporter on the Supreme Court's Advisory Committee on the Federal Rules of Civil Procedure. He states that in suits under Rule 23(a)(3), where all the original plaintiffs meet the jurisdictional requirements, others may later intervene though they never have had such requirements. 7 The examples he gives are stated at page 3443 as follows: 'Assume that a railroad negligently sets fire to property, and widespread damage to many property owners ensues. Here there is a question of law or fact common to many persons. A, B, and C bring an action on behalf of themselves, and all others similarly situated, against the railroad. If federal diversity jurisdiction is sought, A, B, and C, as original parties of record, must each have a claim in excess of $3, 000 and there must be diversity between them as plaintiffs on the one hand and the railroad on the other. Other persons who had been injured could intervene regardless of the amount of their claim, or their citizenship. The judgment would bind A, B, C, and privies, the railroad, and all who had intervened, but would not bind others beyond the principle of stare decisis, which operates as to all judgments. While the spurious class suit is primarily used by plaintiffs, the converse situation is also possible. For example, A, who has been depositing foreign matter in a stream and has been sued or threatened with suit by a great many riparian owners, brings a bill of peace against X, Y, and Z individually and as representatives of other riparian owners. The latter owners could stay out of the action, but the utility of the class action is that they could intervene if they desired, regardless of the amount claimed by them or their citizenship. The

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judgment would bind all who were originally parties, who intervened, and who were in privity.'

This extreme right of intervention was upheld in Shipley v. Pittsburg, & L. E. Ry. Co., D.C.W.D. Pa., 70 F.Sup. 870. There a class action was brought by 24 plaintiffs against a railway company claiming compensation for coupling air hose. In the original complaint each of the named plaintiffs possessed the requisite diversity of citizenship and a claim in the proper jurisdictional amount to give the federal court jurisdiction of the action. Thereafter, 58 additional plaintiffs, no one of whom had the jurisdictional requirement of both diversity of citizenship and a claim in excess of $3, 000 exclusive of interest and costs, filed a motion to intervene. Still later, 29 additional trainmen moved to intervene, only four of whom had the requisite diversity and amount in controversy. The court allowed joinder of all the additional plaintiffs, even though most lacked the jurisdictional requirements of diversity of citizenship and a claim in excess of $3, 000.

Since these class suits are on behalf of those detained by the Attorney General for deportation to Japan, and since there is no evidence showing...

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