Heikkila v. Barber

• Decision Date: 26 October 1962
• Docket Number: No. 16158.,16158.
• Citation: 308 F.2d 558
• Parties: William HEIKKILA, Appellant, v. Bruce G. BARBER, etc., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

308 F.2d 558 (1962)

William HEIKKILA, Appellant, v. Bruce G. BARBER, etc., Appellee.

No. 16158.

United States Court of Appeals Ninth Circuit.

August 29, 1962.

Rehearing Denied October 26, 1962.

McMurray, Walker & Tepper, and Lloyd E. McMurray, San Francisco, Cal., for appellant.

Lynn J. Gillard, U. S. Atty., and Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, POPE and KOELSCH, Circuit Judges.

POPE, Circuit Judge.

When this matter initially came to this court it was here pursuant to two appeals. One of such appeals was from a judgment dismissing Heikkila's action in the district court in which he sought injunction and other relief designed to review and set aside an order for his deportation. The other was from an order of the district court holding that the appellee Barber was not in contempt of court in deporting and transferring Heikkila to Finland at a time when, according to the appellant, the action to review the order of deportation was still pending in the district court.

Both notices of appeal were filed July 28, 1958. Thereafter the perfection of the record in this court proceeded in the customary manner. The printed transcript of the record was filed February 17, 1959; appellant's opening brief was filed April 14, 1959; appellee's brief was filed August 3, 1959; and appellant's reply brief was filed August 24, 1959. On May 7, 1960, the appellant Heikkila died. This operated to terminate the appeal so far as the issue of the propriety of the order of deportation was concerned as the cause in that respect became moot. However, on February 21, 1961, Phyllis Heikkila, widow of said decedent, as administratrix of his estate, filed herein her motion for an order substituting her as such administratrix as appellant herein in the place and stead of William Heikkila. Said motion was presented upon further briefs and oral argument and is now before us for consideration.

The facts of the case, insofar as the problems relating to the contempt are concerned, are as follows: On April 3, 1958, the district court entered a judgment denying the appellant, as plaintiff, all relief and dismissing his action. The judgment bore date April 4, 1958. On April 14, next, Heikkila filed in the district court a notice of motion and motion to modify findings of fact and conclusions of law pursuant to Civil Rule 52, 28 U.S.C. This motion was granted in part and denied in part on July 2, 1958. In the meantime, on April 18, 1958, Heikkila was taken into custody by Immigration and Naturalization Service agents, placed upon a plane and taken to Vancouver, B. C., and held in the Vancouver city jail from early Saturday morning, April 19, until Sunday morning, April 20. On April 19, counsel for Heikkila presented to the district judge, an affidavit reciting that the motion to modify findings had been set for argument on Friday, May 2; that Heikkila had been arrested and taken into custody by Barber or his agents, and that he might be forthwith deported; that if such deportation happened it would cause Heikkila irreparable harm and that such arrest and deportation would deprive the court of jurisdiction of the subject matter of the action and of the person of the appellant. Upon this affidavit the district judge issued a temporary order restraining the appellee from "holding in custody, deporting or attempting to deport the plaintiff William Heikkila."

On the same day this order was served upon the Immigration and Naturalization Service in San Francisco, and an immigration inspector there so served notified an assistant district director thereof. Appellee received notice of the restraining order before Heikkila left Vancouver. The claim is made that appellee made no attempt to release Heikkila or to halt further execution of the deportation then in progress although he notified the United States Attorney. Shortly after Heikkila reached Helsinki he was notified by the American consul there that he was to return to the United States. Heikkila was returned to the United States by airline, his transportation being supplied by representatives of the United States. He arrived in San Francisco, where he had been taken into custody, on Friday, April 25, and was allowed to leave the airport without restraint. On that same day, the court, on motion of appellant, issued an order to show cause directed to the appellee requiring him to appear on May 2, 1958, to show cause why he should not be held in contempt of court. The court heard argument on the motion to modify the findings but did not modify the findings and conclusion that appellant was deportable. On July 1, 1958, the court made its order to the effect that there was no contempt of court and the order to show cause was discharged. It is the appeal from that order with which we are here concerned.

Without any extended consideration of the matter, we assume that Heikkila had standing and a right to move the court for an order holding Barber in contempt. The order of the court last referred to stated that the court considered this a civil contempt proceeding. We also consider that the order denying Heikkila's motion for a contempt order was an appealable one, and that Heikkila had standing to file his appeal in respect thereto.

We do not question the right of Heikkila, had he...