United States v. Carusi, 9461.
| Decision Date | 08 July 1948 |
| Docket Number | No. 9461.,9461. |
| Citation | 168 F.2d 1014 |
| Parties | UNITED STATES ex rel. TRINLER v. CARUSI, Commissioner of Immigration and Naturalization. |
| Court | U.S. Court of Appeals — Third Circuit |
Abram Orlow, of Philadelphia, Pa. (Lemuel B. Schofield, of Philadelphia, Pa., on the brief), for appellant.
Gerald A. Gleeson, U. S. Atty., James P. McCormick, Asst. U. S. Atty., and Maurice A. Roberts, District Adjudications Officer, Immigration and Naturalization Service, all of Philadelphia, Pa., on the brief, for appellee.
Before BIGGS, McLAUGHLIN and KALODNER, Circuit Judges.
This court on February 16, 1948, reversed the judgment of the court below holding that Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009 (a), permitted judicial review of a deportation order entered by the Commissioner of Immigration and Naturalization,1 and a decree enforcing our decision was entered on the same day. It now appears that on August 26, 1947 while the case was pending on appeal the respondent, the then Commissioner of Immigration and Naturalization, Ugo Carusi, resigned his office and was succeeded by Watson Miller on August 27, 1947 as Acting Commissioner. Mr. Miller's nomination to the office by the President was confirmed by the Senate on December 18, 1947. See Section 7 of the Act of March 3, 1891, 8 U.S.C.A. § 101. On June 21, 1948 the Solicitor General moved this court for reconsideration of our judgment on the issue that the case had abated or alternatively for the substitution of Mr. Miller in place of Mr. Carusi as the respondent. The petitioner, Trinler, joins in the motion for substitution of Mr. Miller for Mr. Carusi and insists that the action has not abated. While the Solicitor General is of the opinion that the action has abated he states none the less that he takes this position reluctantly since he desires to appeal our ruling to the Supreme Court.
Both parties rely on the provisions of Rule 25(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. This rule is inapplicable to proceedings in this court. The pertinent rule is 28(5) of the Rules of this court which is based on Section 11 of the Act of February 13, 1925, 28 U.S.C.A. § 780. Section 11 provides in pertinent part that if an officer of the United States dies or resigns, "* * * it shall be competent for the court wherein the action * * * is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office2 it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved." It will be noted that under these provisions the point raised by the petitioner that the critical date was the date of the confirmation by the Senate of Mr. Carusi's successor, Mr. Miller, is irrelevant. No application was made to substitute Mr. Miller as the party respondent until nearly nine months after Mr. Carusi's resignation.
The question for our determination then becomes: is the principle of United States ex rel. Claussen v. Curran, 276 U.S. 590, 48 S.Ct. 206, 72 L.Ed. 720, applicable? In this case the Supreme Court affirmed per curiam, a decision of the Circuit Court of Appeals for the Second Circuit. See 16 F.2d 15. In the Claussen case the Court of Appeals for the Second Circuit affirmed a decision of the District Court of the United States for the Southern District of New York denying a writ of habeas corpus to a seaman who had been ordered deported on conviction of a crime involving moral turpitude within five years after "entry". Certiorari was granted by the Supreme...
To continue reading
Request your trial
-
Cisternas-Estay v. Immigration and Naturalization Service, CISTERNAS-ESTAY and D
...172 F.2d 897 (2d Cir. 1949). Contra, United States ex rel. Trinler v. Carusi, 166 F.2d 457 (3d Cir.), rev'd on other grounds, 168 F.2d 1014 (3d Cir. 1948). In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), however, the Supreme Court held that the APA governed dep......
-
Giambanco v. Immigration and Naturalization Service
...172 F.2d 897 (2d Cir. 1949). Contra, United States ex rel. Trinler v. Carusi, 166 F.2d 457 (3d Cir.), rev'd on other grounds, 168 F.2d 1014 (3d Cir. 1948). In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), however, the Supreme Court held that the APA governed dep......
-
Snyder v. Buck
...meaning of the section though an appeal is being sought, see Becker Steel Co. v. Hicks, 2 Cir., 66 F.2d 497, 499; United States ex rel. Trinler v. Carusi, 3 Cir., 168 F.2d 1014, as was implicit in Mathues v. United States ex rel. Cunningham, supra. For in that case a writ of habeas corpus, ......
-
Acheson v. Fujiko Furusho
...his office and he is separated from the office while the action is pending. The decision of the Third Circuit in U. S. ex rel. Trinler v. Carusi, 3 Cir., 1948, 168 F.2d 1014, is not inconsistent with our conclusion. The case of Ex parte La Prade, 1933, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1......