Sardo v. McGrath

• Decision Date: 31 January 1952
• Docket Number: No. 10363.,10363.
• Citation: 90 US App. DC 195,196 F.2d 20
• Parties: SARDO v. McGRATH, Attorney General of United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 195, 196 F.2d 20 (1952)

SARDO v. McGRATH, Attorney General of United States, et al.

No. 10363.

United States Court of Appeals District of Columbia Circuit.

Argued November 21, 1951.

Decided January 31, 1952.

Jack Wasserman, Washington, D. C., with whom Irving Jaffe, Washington, D. C., was on the brief, for appellant.

Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, Washington, D. C., was on the brief, for appellees. Charles M. Irelan, U. S. Atty. at the time of argument, and Joseph F. Goetten, Asst. U. S. Atty., Washington, D. C., also entered appearances on behalf of appellees.

Before EDGERTON, WILBUR K. MILLER, and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant, a native of Italy, entered this country in 1923. He was naturalized as a United States citizen in 1930, only to be denaturalized five years later. He was arrested in deportation proceedings in 1938. Shortly thereafter, an order of deportation was issued, the grounds being that (1) he had entered Canada in 1937 and returned to the United States within a few days without a visa; (2) he admitted he had committed perjury in procuring his naturalization prior to the 1937 re-entry. In 1946, the proceedings giving rise to the deportation order were reopened by the immigration authorities in an attempt to determine "whether there was a record" of the visa-less border crossing. Following a hearing, the 1938 order was reaffirmed. The validity of this latest decision is challenged by appellant in this suit for a declaratory judgment. He complains that the reaffirmed order "was based upon an unfair and illegal hearing and evidence improperly introduced" and that there was no substantial evidence that he had last entered the United States in 1937. Two other allegations,¹ which loomed large in the argument presented in the briefs, have been taken out of the area of controversy by subsequent developments.²

Pursuant to appellees' motion to dismiss, the District Court entered an order dismissing the complaint with prejudice. Since no opinion was filed, the reasons for this action can only be inferred from the arguments advanced at the trial by appellees. The first of these — that there is no jurisdiction to review deportation orders except upon petition for a writ of habeas corpus — has been disposed of by Kristensen v. McGrath, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, holding such orders reviewable by way of suit for declaratory judgment. The second — that the complaint fails to state a cause of action — requires more extended consideration. Appellees do not contend on appeal that the complaint, standing alone, does not state a claim upon which relief could be granted. Nor could they successfully advance such a contention. Although clarity is not one of the virtues of this complaint, all parties were aware that, when appellant alleged that "an ex parte investigation was made and an ex parte report of the said investigation was considered in determining the issue of plaintiff's last entry into the United States," he was complaining of the denial of his right to cross-examine the authors of the report. There is ample authority for the proposition that such a denial violates due process if it can be demonstrated to have been prejudicial.³ And this in turn, as appellees recognize, depends upon whether the "ex parte evidence is vital to the decision."⁴ This is a matter of proof which cannot be resolved on a motion to dismiss.

What appellees do argue, however, is that the District Court inadvertently phrased its order in terms of dismissal of the complaint. What was really intended, they continue, was entry of a summary judgment in their favor. If their view is correct, then the District Court determined that matters presented to it outside the complaint dispelled what, at first blush, appeared to be issues of fact and left no genuine issue of material fact to be tried.

The thread of appellees' argument begins with Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which authorizes the trial court, when confronted with a motion to dismiss for failure to state a claim, to treat it as a motion for summary judgment, if "matters outside the pleading are presented to and not excluded by the court". Appellees contend that certain statements of fact contained in their memorandum of points and authorities filed below were such "matters presented to * * * and not excluded" and hence resulted in what really was an order for summary judgment.

The statements referred to were a brief summary of exhibits filed in the deportation proceeding. Neither the record in that proceeding nor the exhibits in question were reproduced below. Yet the reliance placed upon them by appellees in the trial memorandum referred to indicates their critical importance in this case.

Whether or not a summary of this kind, drawn up by an attorney and included in his memorandum of points and authorities, can qualify as "matters presented" within 12(b) depends, in our view, upon whether it is the sort of material contemplated by Rule 56. The latter is the definitive rule concerning summary judgment; Rule 12(b) merely provides one means of arriving at that end. It does not enlarge the record on which a summary judgment may be granted under Rule 56. Rule 56(c) says that summary judgment shall be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, the extra-pleading matters presented must be either "depositions," "admissions" or "affidavits". All three possess certain characteristics which make them fitting instruments for cutting through a possible maze of false, illusory or collateral issues raised by loosely-drawn pleadings. As the sworn statements of those who have first-hand knowledge of that about which they speak, they partake not only of the ceremonial quality of testimony in open court, but also of some of the guarantees of trustworthiness which characterize such testimony.⁵

In marked contrast, memoranda of points and authorities are no more than trial briefs which must be filed with each motion presented to the District Court. They must state "the specific points of law and authorities to support the motion" and are expressly not made part of the record.⁶ Such memoranda are neither mentioned in Rule 56 nor, in our view, may they be classed inferentially among the documents in which extra-pleading matters may be presented for purposes of summary judgment. Neither the Federal Rules nor custom at the bar contemplate transformation of legal memoranda into a new vehicle of factual conflict. Certainly, attorneys do not ordinarily conceive that they proceed at their peril if they fail to controvert allegations of fact made by opposing attorneys in their briefs.⁷ To accept appellees' view would be to introduce a confusing system of collateral pleading which could only detract from the relative simplicity of present summary...