Yanish v. Barber

• Decision Date: 02 April 1956
• Docket Number: No. 14518.,14518.
• Citation: 232 F.2d 939
• Parties: Nat YANISH, Appellant, v. Bruce G. BARBER, District Director of Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

232 F.2d 939 (1956)

Nat YANISH, Appellant, v. Bruce G. BARBER, District Director of Immigration and Naturalization Service, Appellee.

No. 14518.

United States Court of Appeals Ninth Circuit.

April 2, 1956.

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Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, Dreyfus & McTernan, Francis J. McTernan, Jr., San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HEALY and FEE, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This case concerns a further chapter growing out of the deportation proceedings against Yanish. The question presented is whether the district court, having found appellee Barber, in "technical" contempt of the order of that court, erred in refusing to impose any sanction upon appellee or to award any reparation to appellant Yanish.

The factual background of the case is set forth at length in Yanish v. Barber, 9 Cir., 1954, 211 F.2d 467, a previous appeal in this same case.

Yanish, an alien, was arrested in 1946 on a warrant charging him with being in the United States in violation of the Act of October 16, 1918, as amended, 8 U.S.C.A. § 137,^* in that since entry he was a member of an organization that advises, advocates, or teaches the overthrow, by force or violence, of the government of the United States. He was released on bond in the sum of $500.00 under the then effective statute, 8 U.S.C., § 156.

In 1949 he was advised by the Immigration and Naturalization Service that he would be required to post a bond in the sum of $5,000, containing provisions requiring frequent reports at stated intervals to an officer of the Service. Yanish then brought the action from which this case arises, seeking an injunction restraining the Acting Director of the Immigration and Naturalization Service from increasing the bond, and from revising or amending it by insertion of the requirement concerning periodic reporting. On July 28, 1950, the district court (Judge Lemmon) entered a judgment denying Yanish relief concerning the increase in the bond, but providing in part, "that respondents are permanently enjoined and restrained from requiring the petitioner to revise or amend the said bail bond by requiring periodic visitation by him to the Immigration Service." Yanish posted the bond in the increased sum of $5,000, and was released.

On March 6th and on March 9th, 1953, Yanish was notified by Barber, the appellee herein, then District Director of the Immigration and Naturalization Service, to appear at the office of the Service on March 16th, following, for the purpose of executing a new bond that imposed conditions concerning notifying the Service of changes in residence or employment, of seeking permission to change residence, of reporting in person at fixed times, of terminating membership, if any, in the Communist Party of the United States, of refraining from certain associations and of refraining from violating the Smith Act, 18 U.S.C. A. § 2385, all of which proposed conditions are fully set forth in note (2) in the prior decision in this case, Yanish v. Barber, supra. Yanish was further advised that he would be arrested and imprisoned unless the demanded bond was posted by 4:30 P.M. on March 16, 1953.

On March 16, 1953, Yanish filed in this action a petition, setting forth the foregoing facts and asking that Barber be adjudged in contempt of Judge Lemmon's order. The court (Judge Murphy) declined to issue a Show Cause Order, and denied all relief asked.

This court, in the prior decision in this case, reversed and remanded with directions to the court below "to issue an order requiring appellee to show cause, if any he has, why he should not be held in contempt, and to take such further steps, not inconsistent with this opinion, as may be thought appropriate." Yanish v. Barber, supra, at page 470.

Meanwhile, following Judge Murphy's declination on March 16, 1953, to issue the Order to Show Cause, Yanish was arrested on March 17, 1953, in the deportation proceedings. The deportation order had become final on March 11, 1953, and Yanish had been notified thereof on March 16, 1953.

We turn first to the petition for contempt in this case, filed in the lower court. Yanish has not seen fit to include that petition in the record on appeal, but we think it pertinent. It was part of the record of the prior appeal, and in any event we may take judicial notice of the petition on file in the district court. Any alleged contempt of Barber must be based upon the allegations of that petition. No supplemental pleading was ever filed. As stated above, it was filed on March 16, 1953, and spoke of events up to that time.

When, pursuant to the mandate resulting from the prior decision, an Order to Show Cause was presented, it was acted on by another district court judge (Judge Harris). It was prepared by attorneys for Yanish, then signed by the court as prepared by them. The Order to Show Cause follows:

"It is hereby ordered that the respondent Bruce Barber be and appear before this Court on the 9th day of June, 1954, then and there to show cause if any he have why this Court should not:

"(1) Hold said respondent in contempt of court for violation of that certain permanent injunction heretofore granted on July 28, 1950, in the within cause, by requiring and demanding of petitioner Nat Yanish a bond conditioned in terms other than those under which petitioner was at liberty pursuant to the said prior permanent injunction of this Court and by imprisoning the petitioner for failure to comply with the said demands and requirements;

"(2) Hold said respondent in contempt for violation of the said permanent injunction by threatening to imprison and by imprisoning the petitioner Nat Yanish;

"(3) Impose upon said respondent such a fine as will reasonably compensate petitioner for his damages suffered as a consequence of the respondent\'s said acts, including reasonable costs and attorney\'s fees incurred by petitioner as a consequence thereof." Emphasis added.

The language concerning imprisoning Yanish for failure to meet the demands of Barber, emphasized above, concerned events occurring after the filing of the petition on which the order to show cause was based.

Thereafter a hearing was held before another district judge (Judge Hamlin) and evidence was taken. Only July 12, 1954, Judge Hamlin made the following order:

"Order

"The matter of the return to the order to show cause in the above matter having come on for hearing, and evidence having been introduced and argument heard, and the court being fully advised in the premises finds that respondent was on March 9, 1953, in technical contempt of the order of Judge Lemmon dated July 20, 1950, enjoining respondent from imposing conditions in a delivery bond, when he notified petitioner `that conditions would be imposed: that respondent was acting in good faith under what he thought was the applicable provisions of the McCarran Act (Immigration and Nationality Act of 1952, Public Law 414, effective December 24, 1952, 8 U.S.C. 1101 et seq.) and by written direction of his superior officer, the Commissioner of Immigration and Naturalization in Washington; that at the time petitioner was taken into the custody of respondent on March 17, 1953, his status under the provisions of Public Law 414\' had changed in that on March 11, 1953, the order for deportation of petitioner became final and that he was so notified on March 16, 1953; that on March 16, 1953, a judge of this court declined to entertain petitioner\'s petition herein and to issue an order to show cause, and that the Court of Appeals for the Ninth Circuit reversed the said order of the District Judge and directed that the order to show cause issue; upon the foregoing:

"It is ordered, adjudged, and decreed that no sanctions be imposed upon respondent, nor reparation be awarded to the petitioner."

It will thus be seen that Judge Hamlin found as a fact that Barber was, on March 9, 1953, in contempt of the order of Judge Lemmon dated July 20, 1950, when he notified Yanish that further conditions would be imposed. Judge Hamlin further found that the status of Yanish, under Public Law 414 had changed, in that on March 11, 1953, the Order for deportation had become final and that Yanish had been so notified on March 16, 1953. Judge Hamlin also found, inferentially, that Yanish was taken into custody on March 17, 1953.

From this Order Yanish has appealed, "insofar as said Order ordered, adjudged and decreed that no sanction be imposed upon respondent, Bruce G. Barber, and insofar as said Order ordered, adjudged and decreed that no reparation be awarded to petitioner, Nat Yanish."

Two questions have been presented, (A) concerning the alleged contempt of March 9, 1953, (B) the alleged contempt for the happenings concerning the arrest of Yanish March 17, 1953, and events thereafter.

Although the trial court in his order refused to impose sanctions on Barber or grant reparations to Yanish, this case has been treated from the inception as a proceeding for a civil contempt. In a civil contempt proceeding the type, character and extent of the relief granted rest upon the trial court's discretion as measured by the showing made. E. Ingraham Co. v. Germanow, 2 Cir., 1925, 4 F.2d 1002, 1003. A fine imposed "must not exceed the actual loss to the complainant caused by * * * violation of the decree * * *." Parker v. United States, 1 Cir., 1946, 153 F.2d 66, 71, 163 A.L.R. 379; Boylan v. Detrio, 5 Cir., 1951, 187 F.2d 375, 379; Christensen Engineering Co. v. Westinghouse Air Brake Co., 2 Cir., 1905, 135 F. 774, 782, and "the imposition of a fine which bore no relation to the injury suffered * * * was unauthorized", Eustace v. Lynch, 9 Cir., 1935, 80 F.2d 652, 656, "Such fine must of course be based upon evidence of complainant's actual...