Shung v. Brownell, No. 12117.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDGERTON, WILBUR K. MILLER, and FAHY, Circuit
Citation227 F.2d 40
PartiesTom We SHUNG, Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.
Docket NumberNo. 12117.
Decision Date13 October 1955

227 F.2d 40 (1955)

Tom We SHUNG, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, Appellee.

No. 12117.

United States Court of Appeals District of Columbia Circuit.

Argued April 14, 1955.

Decided October 13, 1955.


Mr. Jack Wasserman, Washington, D. C., with whom Mr. Andrew Reiner, was on the brief, for appellant.

Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., George E. Hamilton, III, Asst. U. S. Atty., and Albert E. Reitzel, Asst. Gen. Counsel, Immigration and Naturalization Service, were on the brief, for appellee.

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

EDGERTON, Circuit Judge.

Before the 1952 Immigration and Nationality Act1 was passed, the Attorney General ordered Tom We Shung excluded from the United States and Tom We Shung sought review under the Administrative Procedure Act 5 U.S.C.A. § 1001 et seq. and a declaratory judgment. We decided against him on the merits. 93 U.S.App.D.C. 32, 207 F.2d 132. The Supreme Court, citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, vacated our judgment and remanded the case to the District Court with directions to dismiss the complaint. Tom We Shung v. Brownell, 346 U.S. 906, 74 S.Ct. 237, 98 L.Ed. 405. The Supreme Court thereby held that an exclusion order, like a deportation order, could not be reviewed, otherwise than in habeas corpus, on a complaint filed before the 1952 Act took effect.

Obviously our judgment settled nothing, since it was vacated. After the 1952 Act took effect Tom We Shung filed the present complaint, based on the same exclusion order and seeking the same relief. The District Court ruled that it was "without jurisdiction to review an order of exclusion in proceedings other than habeas corpus."

We think the court had jurisdiction to review the order of exclusion.

Estevez v. Brownell, 97 U.S.App.D.C. ___, 227 F.2d 38. Since the complaint was filed after the 1952 Act took effect, we think it immaterial, so far as the right to judicial review is concerned, that the exclusion order was issued before the Act took effect. Muscardin v. Brownell, 97 U.S.App.D.C. ___, 227 F.2d 31

The present question, whether review may be had on a complaint filed after the 1952 Act took effect, is not res judicata, since it neither was nor could have been decided in the previous suit, filed before the Act took effect.2

Reversed.

--------

Notes:

1 66 Stat. 163, 8 U.S.C.A. § 1101 et...

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6 practice notes
  • Matter of Lincoln Plaza Towers Associates, Bankruptcy No. 80 B 10085.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • October 24, 1980
    ...the 1898 Act. See § 403(a) of the Bankruptcy Reform Act of 1978; In re Parr, 3 B.R. 691, 692 (D.C.E.D.N.Y.1979). 30 Shung v. Brownell, 227 F.2d 40, 41 (D.C.Cir. 1955), aff'd on other grounds, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Magruder v. Safe Deposit & Trust Co., 159 F.2d 91......
  • Georgia Ass'n of Retarded Citizens v. McDaniel, No. 87-8586
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 1988
    ...facts brought after the enactment of a statute creating a right to declaratory relief." Id. p 0.415 at 510-11 (citing Shung v. Brownell, 227 F.2d 40 (D.C.Cir.1955), aff'd 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 5 For the complete history behind the cases, see C. Swisher, 5 History of Supr......
  • United States v. Murff
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 29, 1959
    ...that an alien ordered deported under the 1952 act might test the legality of the order in a declaratory judgment action. 8 1955, D.C.Cir., 227 F.2d 40, 97 U.S.App. D.C. 9 Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. 10 The motion was granted upon condition, bas......
  • Bong Youn Choy v. Barber, No. 16159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 7, 1960
    ...Nonetheless, the means of review available must be determined in accord with present law, see Shung v. Brownell, 1955, 97 U.S.App.D.C. 25, 227 F.2d 40, affirmed, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed. 2d 225; Muscardin v. Brownell, 1955, 97 U.S.App.D.C. 16, 227 F.2d 2 The significant por......
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6 cases
  • Matter of Lincoln Plaza Towers Associates, Bankruptcy No. 80 B 10085.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • October 24, 1980
    ...the 1898 Act. See § 403(a) of the Bankruptcy Reform Act of 1978; In re Parr, 3 B.R. 691, 692 (D.C.E.D.N.Y.1979). 30 Shung v. Brownell, 227 F.2d 40, 41 (D.C.Cir. 1955), aff'd on other grounds, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Magruder v. Safe Deposit & Trust Co., 159 F.2d 91......
  • Georgia Ass'n of Retarded Citizens v. McDaniel, No. 87-8586
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 1988
    ...facts brought after the enactment of a statute creating a right to declaratory relief." Id. p 0.415 at 510-11 (citing Shung v. Brownell, 227 F.2d 40 (D.C.Cir.1955), aff'd 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 5 For the complete history behind the cases, see C. Swisher, 5 History of Supr......
  • United States v. Murff
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 29, 1959
    ...that an alien ordered deported under the 1952 act might test the legality of the order in a declaratory judgment action. 8 1955, D.C.Cir., 227 F.2d 40, 97 U.S.App. D.C. 9 Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. 10 The motion was granted upon condition, bas......
  • Bong Youn Choy v. Barber, No. 16159.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 7, 1960
    ...Nonetheless, the means of review available must be determined in accord with present law, see Shung v. Brownell, 1955, 97 U.S.App.D.C. 25, 227 F.2d 40, affirmed, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed. 2d 225; Muscardin v. Brownell, 1955, 97 U.S.App.D.C. 16, 227 F.2d 2 The significant por......
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