Birns v. Commissioner of Immigration and Naturalization, Civ. No. 28108
| Court | United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio |
| Citation | 103 F. Supp. 180 |
| Docket Number | Civ. No. 28108,26084. |
| Parties | BIRNS v. COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al. RICHARDS v. COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al. |
| Decision Date | 13 February 1952 |
103 F. Supp. 180
BIRNS
v.
COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al.
RICHARDS
v.
COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al.
Civ. Nos. 28108, 26084.
United States District Court N. D. Ohio, E. D.
February 13, 1952.
Henry C. Lavine, Cleveland. Ohio, for plaintiffs.
Don C. Miller. Dist. Atty., Cleveland, Ohio, for defendants.
JONES, Chief Judge.
In the above entitled actions for review of deportation orders, defendants
In Civil Action No. 26084, above, it was stipulated by the parties that the decision in Prince v. Commissioner of Immigration and Naturalization, D.C., 87 F.Supp. 53, "would be applicable and determinative as to the applicability of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.,". In the Prince case, Judge Wilkin of this court held that the petitioner was not entitled to judicial review under the Act. On appeal, the Court of Appeals reversed, 6 Cir., 185 F.2d 578, holding that judicial review would lie.
The decision by the Court of Appeals in the Prince case governs and controls decision by this court upon defendants' third ground for dismissal of the present actions. The other grounds upon which the motions are based remain to be determined, however. Although the defense of lack of indispensable parties was also raised in the Prince case, it was not decided there. The defense was not a part of the appeal. Upon remand of that action to this court by the Court of Appeals, it was dismissed by stipulation of the parties.
In the instant actions, service upon the Commissioner of Immigration and Naturalization was attempted by mailing to him a certified copy of the summons and complaint. This was not sufficient under the Rules to confer jurisdiction over his person upon the court. Rule 4(d), Fed. Rules Civ.Proc., 28 U.S.C.A., requires personal service upon an officer of the United States in the district where he resides. The court may take judicial notice of the fact that the official residence of the Commissioner is in the District of Columbia. Connor v. Miller, 2 Cir., 178 F.2d 755; Podovinnikoff v. Miller, 3 Cir., 179 F.2d 937.
Accordingly, the actions must be dismissed as to the Commissioner of Immigration and Naturalization. If it be further determined that the Commissioner is an "indispensable party" to the litigation, the actions must be dismissed in their entirety.
The question of whether a superior government officer is an "indispensable party" to a lawsuit involving his...
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De Pinho Vaz v. Shaughnessy
...Podovinnikoff v. Miller, 3 Cir., 179 F.2d 937; Medalha v. Shaughnessy, D.C.S.D.N.Y., 102 F.Supp. 950; Birns v. Commissioner of Immigration and Naturalization, D.C.N.D.Ohio, 103 F.Supp. 180. See Connor v. Miller, 2 Cir., 178 F.2d On the other hand it has been held that the Attorney General i......
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Estrada v. Ahrens
...Paolo v. Garfinkel, 3 Cir., 1952, 200 F.2d 280; Corona v. Landon, S.D. Cal., 1953, 111 F.Supp. 191; Birns v. Commissioner of Immigration and Naturalization, N.D.Ohio, 1952, 103 F.Supp. 180. 6 The court relied on a distinction it had drawn in Pedreiro between the facts of that case and the f......
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Corona v. Landon, 15014.
...would not be bound by the decree and could enforce the deportation orders in another district." Birns v. Commissioner of Immigration and Naturalization, D.C.Ohio 1952, 103 F.Supp. 180, 182. (Emphasis The Commissioner is, therefore, an indispensable party, for the decree granting the relief ......
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Aguilera-Flores v. Landon, 16587.
...3 Corona v. Landon, supra, followed the Third Circuit case of Paolo v. Garfinkel, 200 F.2d 280, and Birns v. Commissioner of Immigration, D.C.N.D.Ohio, E.D.1952, 103 F.Supp. 180. ...