Sigurdson v. Del Guercio

• Decision Date: 12 November 1956
• Docket Number: No. 14786.,14786.
• Parties: Halldora Kristin SIGURDSON, Appellant, v. Albert DEL GUERCIO, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F.2d 480 (1956)

Halldora Kristin SIGURDSON, Appellant, v. Albert DEL GUERCIO, Appellee.

No. 14786.

United States Court of Appeals Ninth Circuit.

November 12, 1956.

John P. Tobin, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Andrew J. Weisz, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS and FEE, Circuit Judges, and FOLEY, District Judge.

JAMES ALGER FEE, Circuit Judge.

Halldora Sigurdson, who alleges herself to be an alien who entered the United States in 1946, brought a "Complaint for Declaratory Judgment and Injunction" against Albert Del Guercio, identified as officer in charge of the Immigration and Naturalization Service at Los Angeles, and John Doe and Richard Roe, said to be "acting officers in charge" of said office for said agency of the Government. It is alleged in the complaint that defendants "will take plaintiff into custody under color" of an Order of Deportation, issued March 30, 1953, on the ground that she was a member of the Communist Party of the United States before her re-entry in 1949, and also that she was a member of a club which was a cell of the Communist Party while she was a student in this country. Plaintiff claims this order is "illegal and void and without force and effect." It is prayed that "defendants" be restrained from deporting plaintiff. The grounds of illegality of the deportation order are that it was based upon an examination held on November 2, 1950, which was recorded by dictaphone and that the transcripts thereof were inaccurate and incomplete and not freely and voluntarily made. It is also said that the order was based upon the testimony of two "professional witnesses, both of whom are perjurers." It is set up that cross-examination of one of these was denied and that the Hearing Officer denied the right to have the dictaphone belts examined by experts, and refused to comply with "8 Code of Federal Regulations appertaining to conduct of deportation hearing." Plaintiff, however, makes the following allegation:

"That plaintiff filed a petition for writ of Habeas Corpus in this court on June 24, 1953, and said petition was denied on July 28, 1953. The United States Court of Appeals for the Ninth Circuit affirmed the judgment of the trial court on September 7, 1954 215 F.2d 791, and the United States Supreme Court denied writ of certiorari on January 10, 1955 348 U.S. 916, 75 S.Ct. 298, 99 L.Ed. 718."

The court issued an order to show cause as to all defendants and, pending hearing, it was ordered that "the defendants, and each of them, be and is restrained and enjoined from deporting said plaintiff." Del Guercio thereupon filed a motion to dismiss on the ground that the court lacked jurisdiction, that no grounds for relief were stated since the matter was settled by the decision in the case of "Sigurdson v. Landon, Civil No. 15648-C" and that the complaint failed to join indispensable parties.

The trial court found there was not jurisdiction over the subject matter, reciting that:

"* * * the complaint alleges jurisdiction of the action under the provisions of Section 2201, et seq., of Title 28 U.S.C., and it appearing to the Court that said section does not confer jurisdiction on the Court, and that the Court does not otherwise have jurisdiction to review the matters alleged to have been passed upon by the United States Court of Appeals for the Ninth Circuit;"

The ground of lack of jurisdiction over the subject matter cannot be maintained. It is true the Declaratory Judgment Act¹ does not confer any added jurisdiction upon the federal courts, but merely enlarges the "range of remedies available." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194. But the mere circumstance that plaintiff did not set out by name and number all of the statutes under which she proceeded avails not. An indispensable prerequisite to declaratory relief is the presence of an "actual controversy."² But facts sufficient to obtain judicial review under the Administrative Procedure Act³ are stated in this complaint.⁴

The next matter to be considered is the failure to join indispensable parties. There is no showing who the defendant considered were parties indispensable to this cause. Besides, as noted above, there were John Doe and Richard Roe named as defendants in the original complaint, who were described as officers of the United States Immigration and Naturalization Service. It is true, no one was served except Del Guercio, as far as the record discloses. These John Doe complaints are dangerous at any time. It is inviting disaster to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is still of record. Appropriate action has been taken by the trial court on its own motion in some such cases.⁵ Although the fact that the Rules of Civil Procedure, 28 U.S.C.A., contain no express prohibition upon the subject, there is no authority of which we are aware for the joining of fictitious defendants in an action under a federal statute. These defendants should have been eliminated by motion of Del Guercio, and, since they were not eliminated, the question of whether they were in fact the indispensable parties upon which his motion is based remains for consideration. But it cannot be solved in this Court.

However, the whole record will now be examined to determine whether there are other grounds upon which the judgment of the trial court dismissing the action may be sustained. The contention is made in the government brief that the dismissal may be supported on the ground that the judgment in the previous habeas corpus case⁶ is res adjudicata in this declaratory judgment proceeding.

While the District Court may have had the record of the habeas corpus proceeding before it, even so that record was not brought here. Counsel for the government improperly include in their brief⁷ purported findings in that previous case, but neither the record of the deportation hearing nor the trial of the habeas corpus case is properly before this Court. There is no means by which this Court can assume that the record of the deportation hearing upon which the order here attacked was based contained evidence sufficient to satisfy the requirements of § 242(b) of the Immigration and Nationality Act of 1952⁸ and that the District Court so decided. Subsection 4 of that section provides:

"No decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence."⁹

In Marcello v. Bonds, 349 U.S. 302, 311, 75 S.Ct. 757, 99 L.Ed. 1107, it was held that the procedure outlined in the 1952 Act for hearings in immigration proceedings was constitutional and afforded due process. But, to be a valid bar, there must at least have been a finding and judgment in the habeas corpus proceedings which satisfied the tests prescribed by this statute.

While it has been strongly indicated that a judgment based upon appropriate review of the immigration proceeding in a habeas corpus action may be res adjudicata in a subsequent declaratory judgment action on the...