Acheson v. Fujiko Furusho
| Decision Date | 01 April 1954 |
| Docket Number | 13712,No. 13093,13774,14051.,13093 |
| Citation | 212 F.2d 284 |
| Parties | ACHESON, Secretary of State, v. FUJIKO FURUSHO. NG KWOCK GEE et al. v. ACHESON, Secretary of State. WONG SHO GING v. McGRANERY, Atty. Gen. ACHESON, Secretary of State, v. LEE WING BEW. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED No. 13093:
A. William Barlow, U. S. Atty., Winston C. Ingman, Asst. U. S. Atty., Honolulu, Hawaii, Lloyd H. Burke, U. S. Atty., C. Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellant.
A. L. Wirin, Los Angeles, Cal., for appellee.
Benjamin W. Henderson, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Clyde C. Downing, Arline Martin, Leila F. Bulgrin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Benjamin W. Henderson, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Sherman F. Furey, Jr., U. S. Atty., Marion J. Callister, Asst. U. S. Atty., Salmon, Idaho, for appellant.
J. P. Sanderson, Seattle, Wash., Peter J. Boyd, Caldwell, Idaho, for appellee.
Before DENMAN, Chief Judge, and STEPHENS, HEALY, BONE, ORR and POPE, Circuit Judges.
Each of the above entitled cases was brought under section 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171, Title 8 U.S.C.A. § 903, as it existed prior to repeal and reenactment in changed form as Title 8 U.S.C.A. § 1503.
The Act provides that a person who claims to be a national of the United States and who claims that he (or she) has been denied a right or privilege of a national of the United States by a department or agency or executive thereof upon the ground that such person is not a national of the United States may institute an action against the head of the governmental activity in charge of the matter to which the denial is related "* * * for a judgment declaring him to be a national of the United States."
In the appealed case entitled Dean Acheson v. Fujiko Furusho, No. 13093, Fujiko Furusho obtained a judgment, while Dean Acheson was Secretary of State, declaring her to be a "citizen" (citizenship is inclusive of nationality) of the United States and notice of appeal was filed while Acheson remained in office. Subsequent to the appeal and before decision thereon Acheson was succeeded in office by John Foster Dulles. No substitution of Acheson by Dulles has been made. The United States Attorney in the name of Acheson has presented a motion to vacate the judgment and remand the cause with directions to dismiss it as abated upon the ground that substitution of Dulles for Acheson had not been made within six months after Acheson had left office and Dulles had succeeded him in office. The motion is based upon the provisions of Rule 19(4) of the Supreme Court, 28 U.S.C.A. and section 11 of the Judiciary Act of February 13, 1925, 28 U.S.C.A. former § 780. This motion is before us for decision.
In the appealed cases Ng Kwock Gee and Ng Kwock Jom v. Dean Acheson, No. 13712, a single document was made and entered in the district court adjudging that each plaintiff was not a national of the United States and separate notices of appeal were filed while Acheson was still Secretary of State. The appeals were docketed under the above number. Subsequent to the filing of the notices of appeal Dulles succeeded Acheson as Secretary of State, and no substitution of Dulles for Acheson had been made within six months after Acheson had left office and Dulles had succeeded him. The United States Attorney in the name of Acheson has presented a motion to dismiss the appeal on the ground that the action has abated against Acheson, (note the motion is confined to the cause against Acheson) because no substitution was made within six months after the vacancy in office had occurred, as per Rule 25(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and on the additional grounds that there is no substantial need for continuing and obtaining an adjudication of the questions involved and that the evidence sustains the decision that appellants were not citizens, and that there is no substantial question on appeal. The appellants have presented a motion to substitute Dulles for Acheson as the named defendant in the causes. Both of these motions are before us for decision.
In the appealed case entitled Wong Sho Ging v. James P. McGranery, No. 13774, a judgment was made and entered adjudging that the plaintiff was not a national of the United States. The defendant originally named in the cause was J. Howard McGrath as Attorney General, and before judgment McGrath was succeeded in office by James P. McGranery who was substituted as defendant in the action. Herbert Brownell, Jr. succeeded McGranery in office, but Brownell has not been substituted as defendant in the action although after Brownell had become Attorney General an appeal was filed by Wong Sho Ging with McGranery as the named appellee. The United States Attorney has presented a motion to dismiss the appeal against McGranery on the grounds stated in cause number 13712, supra. The plaintiff-appellant has presented a motion to substitute Brownell for McGranery. Both motions are before us for decision.
In the appealed case entitled Dean Acheson v. Lee Wing Bew, No.14051, a judgment was made and entered adjudging plaintiff to be a national of the United States. The named defendant was Acheson, Secretary of State, but the judgment was not made and entered until five months after Acheson had left office. The appeal was filed in this court in the name of Acheson more than six months after Dulles had succeeded Acheson. Thereafter the United States Attorney filed a motion to dismiss the entire action on the same grounds stated in cause number 13712, supra. The latter motion is before us for decision.
It will be seen from the records that the attorney claiming abatement in each separate case is the United States Attorney for the district from which the case is appealed. In the case coming from the District of Hawaii, both the United States Attorney of the Territorial district and of the Northern District of California are on the motion. It will also be seen that the nominal moving person claiming abatement is the resigned Secretary of State or the resigned Attorney General. It will also be noticed that although the titles of the motions as to abatement do not all indicate it, request is made in all of them that we hold the causes themselves abated, as well as the causes against the resigned officials. We see no impropriety in what we have pointed out, but we do see that if it is not the United States which is making the motions, and we do not hold that it is, it is the several United States Attorneys under the direction of the Department of Justice who are actually making the motions, else the resigned officials would hardly be requesting more than that the cases should be declared abated as to them.
It is not claimed by or for the former Secretary of State or the former Attorney General that any harm has come or will come to the government of the United States or any department thereof by reason of the delay in petitioning for the substitution of the successor of the resigned officials. And the record in each case shows conclusively that these cases have continued to be live cases in the Department of Justice and in the Department of State, and that they were current items of business in those departments through the changes in the heads thereof. There is no equitable consideration involved which would result in injustice if the cases are held to survive, but since the judgments have been entered after trial declaring the proved status of the five persons-plaintiff in the instant actions, abatement of the actions would constitute a heavy injustice to them and also to the government.
The record in each case shows clearly that when the motions in relation to abatement were made, a full six months had elapsed since the separation from office of the Attorney General and of the Secretary of State without substitution of the successors to these officers. There is no issue of fact before us.
At the oral argument the United States Attorney for the Northern District of California injected the point that the district courts were without jurisdiction to entertain the cases. However, the point has not been raised in any of the motions and it was evident that the several attorneys present were not prepared to discuss it. It is too plain for argument that the subject matter is within the jurisdiction of the district court and that our jurisdiction is clear. We, therefore, proceed directly to the subject of abatement and to the motions to substitute as presented in the several motions.
In the consideration of the main issue in these cases it is of some importance to keep in mind that abatement of a case usually follows, as of course, when there is no one to respond to a judgment which might be or has been entered in a case. When a case reaches that posture the futility of its continuing is evident, and it abates. No statute upon the subject is needed to authorize a court or judge to make an order to the effect that the case is no longer alive.
Our immediate consideration of the subject is limited to actions in which governmental officers are parties defendant, and, unless it appears otherwise, what we have to say is meant to apply specifically to instances within that limitation.
From the beginning of our judicial history and up to 1899, abatement of cases was acted upon by the federal courts as a procedural matter without the aid of any Congressional enactment or court rule. Congress treated the subject in the Act of February 8, 1899, and in § 11 of the Judiciary Act of 1925, as codified in Title 28 U.S.C.A. former § 780. The latter provision was repealed in 19481 with the revision of Title 28 of the United States Code,...
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Reyes v. Neelly, 17435.
...2 Cir., 1949, 176 F.2d 249, 250. Cf., United States ex rel. Lapides v. Watkins, 2 Cir., 1948, 165 F.2d 1017. 5 Acheson v. Fujiko Furusho, 9 Cir., 1954, 212 F.2d 284, 296; Lew Thun v. McGrath, D.C.S.D.N.Y., 16 F.R.D. 352, 354; Gan Seow Tung v. Clark, D.C.S.D.Cal. 1949, 83 F.Supp. 482, 484-48......
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Rosasco v. Brownell
...question as to whether the plaintiffs could at this time amend their complaints to name Mr. Rogers as defendant. See Acheson v. Fujiko Furusho, 9 Cir., 1954, 212 F.2d 284; Poindexter v. Folsom, 3 Cir., 1957, 242 F.2d 516; Lew Thun v. McGrath, D.C.S.D.N.Y.1954, 16 F.R.D. 352; contra Rossello......
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28 APPENDIX U.S.C. § 25 Substitution of Parties
...256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in m......
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28 APPENDIX U.S.C. § 25 Substitution of Parties
...256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in m......
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28 APPENDIX U.S.C. § 25 Substitution of Parties
...256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in m......