Wacker v. Bisson

• Decision Date: 22 October 1965
• Docket Number: No. 21629.,21629.
• Citation: 348 F.2d 602
• Parties: J. Samuel WACKER, Appellant, v. J. G. BISSON, Consul General, Dominion of Canada, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 602 (1965)

J. Samuel WACKER, Appellant, v. J. G. BISSON, Consul General, Dominion of Canada, Appellee.

No. 21629.

United States Court of Appeals Fifth Circuit.

June 23, 1965.

Rehearing Denied October 22, 1965.

COPYRIGHT MATERIAL OMITTED

Dean A. Andrews, Jr., New Orleans, La., for appellant.

M. Hepburn Many, New Orleans, La., for appellee.

Before RIVES and WISDOM, Circuit Judges, and MORGAN, District Judge.

WISDOM, Circuit Judge.

The appellant, J. Samuel Wacker, awaiting extradition to Canada, brings this off-beat declaratory judgment action attacking the validity of an unappealable extradition order. Since Wacker is in custody, he might just as well have cast the action in the form of an application for habeas corpus. Wacker, however, has twice tried that approach without success. In the complaint and on appeal, the plaintiff advances on all fronts, attacking the constitutionality of numerous international treaties and conventions, challenging the extradition statute (as written and as applied), and making other contentions based on all possible, and some impossible, reasons for the invalidity of the extradition. Wacker names as defendant the Consul General of Canada, the demanding state. The district court dismissed the complaint for lack of jurisdiction over the subject matter and over the person of the defendant. We reverse and remand, taking the view that the district court has jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201 ff., to review collaterally the validity of the extradition proceeding.

I.

In April 1963 the Canadian Vice-Consul in New Orleans filed a complaint before the United States Commissioner for the Eastern District of Louisiana, for the extradition of J. Samuel Wacker for violations of the Canadian securities laws.¹ Wacker was arrested in New Orleans and committed to the custody of the United States Marshal without bail, pending preliminary examination. Shortly after his arrest, Wacker sought a writ of habeas corpus on the ground that the Vice-Consul was without authority to execute the complaint. The district court denied the writ, but granted bail which Wacker met. April 25, 1963, Wacker appealed from the denial of his application for a writ. This appeal was dismissed for lack of prosecution.

January 13, 1964, the United States Commissioner held a week-long hearing on the validity of the detention and the sufficiency of the evidence to justify Wacker's extradition. 18 U.S.C. § 3184. The Canadian Government intervened in the extradition hearing. The Commissioner found against Wacker, certified to the Secretary of State that the evidence was sufficient to sustain the specified charges, and committed the extraditee to the marshal's custody.

On the same day that he was committed, January 20, 1964, Wacker sought a second writ of habeas corpus on the ground that the Commissioner committed him to custody before the record was completed. He brought the second habeas corpus suit against the Dominion of Canada, although Wacker was in the custody of the United States marshal. Canada did not plead sovereign immunity. February 26, 1964, on motion of the Dominion of Canada, after a full hearing, the district court dismissed the petition for failure to state a cause of action. Wacker did not appeal.

March 9, 1964, Wacker brought the declaratory judgment suit now before the Court, naming as defendant J. G. Bisson, Consul General, Dominion of Canada. The Canadian Consul General moved to dismiss, urging lack of jurisdiction over the subject matter and pleading the immunity of a foreign sovereign or consular officer acting within the scope of his duties. The district court dismissed the petition.²

II.

The threshold question is whether this proceeding meets the constitutional requirement of a "case or controversy"³ or is simply an advisory opinion.⁴ A declaratory judgment is not an advisory opinion⁵ and falls within the scope of the judiciary article, if the case presents "a difference or dispute * * that is `appropriate for judicial determination,' not hypothetical or abstract * * * academic or moot * * * but definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character. * * *"⁶

A. In a habeas corpus proceeding the case or controversy is between the person held in custody and his custodian. Wacker's custodian is the United States marshal. In this declaratory judgment action to review the extradition hearing Wacker has designated as defendant only the consul general of the demanding government. This is not enough in itself to draw the proceeding beyond the boundaries of "case or controversy". The question arises in similar form in habeas corpus review of an extradition hearing when the demanding government intervenes or is joined as a defendant. In Ornelas v. Ruiz, 1896, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 687, only the demanding government's consul appealed a habeas corpus decision in favor of the extraditee. The Supreme Court said: "As the government he represented was the real party interested in resisting the discharge, the appeal was properly prosecuted by him on its behalf." (Emphasis added.) 161 U.S. at 507, 16 S.Ct. at 690, 40 L.Ed. at 789. In an identical situation the Ninth Circuit held: "The British government being the real party in interest, its consul, acting for it, was a proper party to prosecute the extradition proceeding and to defend the habeas corpus proceeding, and is a proper party to prosecute this appeal." Cleugh v. Strakosch, 9 Cir. 1940, 109 F.2d 330, 332. The principle established in these habeas cases should apply to this declaratory judgment action against the demanding government, the real party in interest whether the form of action is habeas corpus or declaratory judgment. If anything, the extraditee sharpens the case or controversy by choosing an action for a declaratory judgment, for he eliminates the nominal party. The constitutional problems of case or controversy usually arise when one of the parties is not the real party in interest. Compare Coffman v. Breeze Corporation, 1945, 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264; Muskrat v. United States, 1911, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.

B. Wacker's complaint raises a multitude of sweeping and highly dubious issues, but the scope of review of an extradition hearing should be the same whether the extraditee chooses habeas corpus or declaratory judgment.⁷ The scope of review by habeas corpus is extremely limited.⁸ Under existing law, such review includes only (1) whether the magistrate had jurisdiction, (2) whether the evidence showed a reasonable ground to believe the accused guilty, and (3) whether the offense was a treaty offense. Within these narrow limits, there is a case or controversy in the constitutional sense between the extraditee and the demanding government. Indeed many issues which are not within our narrow scope of review might still present a constitutional case or controversy. We do not decide whether all the issues Wacker raises fall within the limits of case or controversy. We hold only that all the issues which fall within the narrow habeas corpus scope of review meet the constitutional requirement.

C. From the early days of the Republic, constitutional lawyers have argued that the executive has the exclusive power to make the final decision to extradite.⁹ In modern times the executive branch has assumed discretion to deny extradition in appropriate cases, a discretion seldom exercised in favor of the extraditee.¹⁰ In this case we hold that the scope of review by declaratory judgment is the same as the scope of review by habeas corpus. Within these limits a declaratory judgment review of extradition does not conflict with the authority of the executive branch any more than habeas corpus review of extradition conflicts with the traditional authority of the executive branch.¹¹ Review by habeas corpus or declaratory judgment tests only the legality of the extradition proceedings; the question of the wisdom of extradition remains for the executive branch to decide.

III.

We turn to the problems arising from the Federal Declaratory Judgment Act itself.

In Jiminez v. Aristeguieta, 5 Cir. 1961, 290 F.2d 106, this Court held that it had no jurisdiction of an appeal from the order of a magistrate in an extradition proceeding.¹² We do not question the reasoning or the results of that decision;¹³ Jiminez v. Aristeguieta does not control the instant case. This proceeding is not an appeal from an extradition order, but a proceeding for collateral review of the legality of the extradition.

Professor Borchard writes, "There are two general types of action in which declaratory relief is invoked: (1) where the plaintiff seeks a declaration that he is privileged to act, or is immune from a liability asserted by, the defendant * * * actions in which no coercive decree is sought or even possible; and (2) where the plaintiff, though capable of suing for an executory or coercive decree, contents himself with the milder declaration of rights as adequate to his needs and purpose." Borchard, Declaratory Judgments (2d ed. 1941) at 315. Extradition proceedings may fall into either category. In some extradition cases no coercive decree is available. For example, if the extraditee is not held in custody, he cannot use habeas corpus; a declaratory judgment may be his only remedy. See McLeod v. Peterson, 3 Cir. 1960, 283 F.2d 180.

This case falls into the second category of declaratory judgment cases. Wacker cannot be denied relief on the ground that his attorney asked for a declaratory judgment instead of habeas relief; the plaintiff may ask for a declaratory judgment even if he may also seek a coercive decree.¹⁴ The "declaratory judgment is an alternative and entirely optional remedy * * * There is no justification...