Tom We Shung v. McGrath, Civ. A. No. 276-50.

CourtUnited States District Courts. United States District Court (Columbia)
Citation103 F. Supp. 507
Docket NumberCiv. A. No. 276-50.
PartiesTOM WE SHUNG v. McGRATH, Atty. Gen., et al.
Decision Date27 February 1952

103 F. Supp. 507

TOM WE SHUNG
v.
McGRATH, Atty. Gen., et al.

Civ. A. No. 276-50.

United States District Court District of Columbia.

February 27, 1952.


103 F. Supp. 508

Jack Wasserman, Washington, D. C., Andrew Reiner, New York City, of counsel, for plaintiff.

Charles M. Irelan, U. S. Atty., Ross O'Donoghue, Asst. U. S. Atty., District of Columbia, Washington, D. C., for defendants.

KEECH, District Judge.

This is an action for a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, and for review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., in connection with the exclusion of a Chinese alien. The plaintiff in his complaint requests "an order declaring that the hearing accorded the plaintiff before the Board of Special Inquiry was unfair, null and void, and further declaring that the plaintiff Tom We Shung is the blood son of Tom Wing and is admissible to the United States under Public Law 271, 79th Congress (8 U.S.C. 232)."

The plaintiff contends that the hearing before the Board of Special Inquiry which heard his case was null and void for the reasons that the Board was improperly composed of two immigrant officials and a clerk-stenographer; that the Board was subject to the control of officials engaged in investigatory functions, in violation of Section 5(c) of the Administrative Procedure Act, 5 U.S.C.A. § 1004(c); and that the Board was not composed of hearing examiners appointed in conformity with Section 11 of the Act, 5 U.S.C.A. § 1010. Plaintiff further contends that the finding of the Board should be set aside under the provision of Section 10(e) (B) (5) of the Act, 5 U.S.C.A. § 1009(e) (B) (5), because it was not supported by substantial evidence or any evidence whatsoever.

103 F. Supp. 509

Even before enactment of Public Law 843, 81st Congress, 8 U.S.C.A. § 155a, which specifically exempted immigration proceedings from the hearing provisions of the Administrative Procedure Act, they had been held inapplicable to exclusion proceedings before a Board of Special Inquiry, since Section 7(a) of the Act, 5 U.S.C.A. § 1006(a), specifically exempts from these provisions proceedings before "boards or other officers specially provided for by or designated pursuant to statute."1

Since Section 10(e) (B) (5) is confined to hearings held pursuant to the Act, it would be inapplicable to the hearing here involved, even if Section 10 be held applicable to immigration proceedings.

Since the...

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4 practice notes
  • 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
    ...effective, December 28, 1945. 2 28 U.S.C.A. § 2201. 3 60 Stat. 243 (1946), 5 U.S.C.A. § 1009. 4 Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. 5 Tom We Shung v. Brownell, D.C.Cir., 1953, 207 F.2d 6 1953, 346 U.S. 906, 74 S.Ct. 237, 98 L. Ed. 405. The Court merely cited Heikkila v.......
  • United States v. Reid, H. C. No. 9-53.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 13, 1953
    ...result. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; but cf. Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. On a fundamental question going to the essence of due process, petitioner should not be penalized for failure of counsel to raise the quest......
  • Brownell v. We Shung, No. 43
    • United States
    • United States Supreme Court
    • December 17, 1956
    ...and Nationality Act of 1952. His complaint was dismissed on the ground that the order was valid. Tom We Shung v. Page 182 McGrath, D.C., 103 F.Supp. 507, affirmed sub nom. Tom We Shung v. Brownell, 93 U.S.App.D.C. 32, 207 F.2d 132. We vacated the judgment and remanded the cause to the Distr......
  • Tom We Shung v. Brownell, No. 11417.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 2, 1953
    ...were unfair and a legal nullity. These questions are fully dealt with by District Judge Keech in an opinion reported in 1952, 103 F. Supp. 507. We agree with his conclusions (1) that the Board was properly constituted, if not, that failure to make timely objection to its composition rendere......
4 cases
  • 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
    ...effective, December 28, 1945. 2 28 U.S.C.A. § 2201. 3 60 Stat. 243 (1946), 5 U.S.C.A. § 1009. 4 Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. 5 Tom We Shung v. Brownell, D.C.Cir., 1953, 207 F.2d 6 1953, 346 U.S. 906, 74 S.Ct. 237, 98 L. Ed. 405. The Court merely cited Heikkila v.......
  • United States v. Reid, H. C. No. 9-53.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 13, 1953
    ...result. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; but cf. Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. On a fundamental question going to the essence of due process, petitioner should not be penalized for failure of counsel to raise the quest......
  • Brownell v. We Shung, No. 43
    • United States
    • United States Supreme Court
    • December 17, 1956
    ...and Nationality Act of 1952. His complaint was dismissed on the ground that the order was valid. Tom We Shung v. Page 182 McGrath, D.C., 103 F.Supp. 507, affirmed sub nom. Tom We Shung v. Brownell, 93 U.S.App.D.C. 32, 207 F.2d 132. We vacated the judgment and remanded the cause to the Distr......
  • Tom We Shung v. Brownell, No. 11417.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 2, 1953
    ...were unfair and a legal nullity. These questions are fully dealt with by District Judge Keech in an opinion reported in 1952, 103 F. Supp. 507. We agree with his conclusions (1) that the Board was properly constituted, if not, that failure to make timely objection to its composition rendere......

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