Estevez v. Nabers

• Decision Date: 11 February 1955
• Docket Number: No. 15200.,15200.
• Citation: 219 F.2d 321
• Parties: Jose ESTEVEZ v. Horace A. NABERS, Acting Officer in Charge, New Orleans Office Immigration & Naturalization Service.
• Court: U.S. Court of Appeals — Fifth Circuit

219 F.2d 321 (1955)

Jose ESTEVEZ v. Horace A. NABERS, Acting Officer in Charge, New Orleans Office Immigration & Naturalization Service.

No. 15200.

United States Court of Appeals, Fifth Circuit.

February 11, 1955.

Max Zelden and Sam Monk Zelden, New Orleans, La., for appellant.

Prim B. Smith, Jr., Asst. U. S. Atty., George R. Blue, U. S. Atty., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

The court below having dismissed this action as res judicata, the sole issue on this appeal is whether that principle was correctly applied. The complaint in this action alleged that upon his most recent arrival in the United States on May 14, 1953, plaintiff, a Honduran citizen, was ordered excluded under the provisions of 8 U.S.C.A. § 1182(a) (22);¹ that further proceedings resulted in an order of the Board of Immigration Appeals, Department of Justice, admitting him for sixty days under 8 U.S.C.A. § 1182(d) (3); that he commenced an action against Edward P. Ahrens, District Director, Immigration and Naturalization Service, in the District Court for the Eastern District of Louisiana, seeking a declaratory judgment to obtain a review of the exclusion order, said suit being dismissed on the ground that there was no justiciable controversy; that after plaintiff had overstayed the sixty-day period he was arrested and later released on bond, and ordered deported by reason of his overstaying; and that a controversy now exists by reason of the arrest and deportation order.

The record in the first action was appended to the record herein as an exhibit. The first sixteen paragraphs of the two complaints are identical. The complaint in the present action alleges as additional facts only the bringing and dismissal of the first action, plaintiff's arrest, and the deportation order. The allegation that a real controversy exists may of course be disregarded as a legal conclusion. The additional allegations and the change of the person named as defendant from Ahrens to Nabers are the only differences between the two complaints.²

The fact that the defendant is a different person in the present action does not affect the availability of the plea of res judicata, since the government, its officers, and its agencies are regarded as being in privity for such purposes. Di Silvestro v. Gray, 90 U.S.App.D.C. 184, 194 F.2d 355, certiorari denied 343 U.S. 930, 72 S.Ct. 765, 96 L.Ed. 1340; Safeway Stores, Inc. v. Porter, Em.App., 154 F.2d 656, certiorari denied, 328 U.S. 863, 66 S.Ct. 1367, 90 L.Ed. 1633. The plaintiff does not rely upon this difference to avoid the estoppel or bar of the earlier judgment, nor on the proposition that a different legal question is involved, but upon the contention that the facts in this action are different.

Different in a sense they are; but there is not such a difference in the facts alleged as to avoid the effect of the earlier judgment as res judicata. Although some courts seem to have held that the mere existence of facts in the second action not present in the first makes the principle of res judicata inapplicable, e. g., Pippin v. United States, 74 App.D.C. 131, 121 F.2d 98, we believe this criterion is clearly incorrect. See Hatchitt v. United States, 9 Cir., 158 F. 2d 754; Buchanan v. General Motors Corp., 2 Cir., 158 F.2d 728; The B. & B. No. 10, 2 Cir., 121 F.2d 704; "Developments in the Law — Res Judicata," 65 Harv.L.Rev. 818, 826. We recognize, on the other hand, that in some situations a second action is not barred by a former judgment when the complaints are identical save for the inclusion of certain additional facts in the second complaint. For example, if the complaint in the later action contains further allegations, the omission of which made the complaint in the first action demurrable, the judgment in the first action is not a bar to the second action, even though the plaintiff has failed to avail himself of permission to amend. Gould v. Evansville & C. R. Co., 91 U.S. 526, 23 L.Ed. 416; United States v. Glidden Co., 6 Cir., 119 F.2d 235; State v. California Packing Corp., 105 Utah 191, 145 P.2d 784, and authorities cited; Restatement, Judgments Sec. 50, Comment c. Likewise, where a judgment was rendered for the defendant on the ground of the non-existence of some fact essential to the plaintiff's cause of action, a second action is not barred after such fact has subsequently come into existence. West v. American T. & T. Co., 6 Cir., 121 F.2d 142, certiorari denied 314 U.S. 672, 62 S.Ct. 138, 86 L.Ed. 537; Radick v. Underwriters at Lloyd's, London, 7 Cir., 137 F.2d 21; Restatement, Judgments, Sec. 54. See also Safeway Stores,...