Yanish v. Wixon, 28347.
| Citation | 81 F. Supp. 499 |
| Decision Date | 20 December 1948 |
| Docket Number | No. 28347.,28347. |
| Court | U.S. District Court — Northern District of California |
| Parties | YANISH et al. v. WIXON. |
Gladstein, Andersen, Resner & Sawyer, and Lloyd E. McMurray, all of San Francisco, Cal., for plaintiffs.
Frank J. Hennessy, U. S. Atty., and Edgar Bonsall, Asst. U. S. Atty., both of San Francisco, Cal., for defendant.
Plaintiffs, alien residents of the United States against whom warrants have been issued charging them with membership in groups which advocate overthrow of the Government of the United States by force and violence, and with personal advocacy of such overthrow, seek to restrain defendant from conducting deportation proceedings against them. The grounds relied upon for the relief prayed for are in substance that the defendant has failed to appoint or assign a trial examiner to conduct hearings in accordance with the provisions of the Administrative Procedures Act and that the defendant is without right, authority or jurisdiction to proceed with the hearings under said warrants of arrest. 5 U.S.C.A. § 1001 et seq., hereinafter referred to as the Act.
Several preliminary objections have been urged on behalf of the defendant I. F. Wixon individually and as Director of Immigration and Naturalization Service.
First, that he is not a proper party individually or officially, and that the Attorney General of the United States should have been joined herein. This contention has been passed upon adversely to the claim of defendant in the recent case of Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188.
Secondly, it is asserted that petitioners have not exhausted their administrative remedies. Petitioners, at the threshold of the controversy, contend that the proceedings about to be conducted before the Immigration Service are without right, authority or jurisdiction in the light of the Administrative Procedures Act. If, in law, their contention is correct, it would seem purposeless to require petitioners to expend their energies in a hearing before the Immigration Service if at the consummation thereof it appeared to a reviewing court that the jurisdictional premise is absent. We have concluded that in the light of the contentions urged, and under all of the circumstances present, petitioners are not obliged to exhaust their administrative remedies and are properly before this court insofar as a test of the jurisdiction is concerned.
We now pass to the major contention: The Administrative Procedures Act under Section 7(a), 5 U.S.C.A. 1006(a), creates the following exception which is applicable herein: "Nothing in this chapter shall be deemed to supersede the conduct of...
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...Director of Immigration and Naturalization in setting bail. Yanish v. Phelan, D.C.N.D.Cal., 86 F.Supp. 461. See also Yanish v. Wixon, D.C.N.D.Cal., 81 F. Supp. 499, an action to restrain the District Director of Immigration and Naturalization from conducting deportation proceedings alleged ......
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...a Procedural Phantom, 61 Col.L.Rev. 1254 (1951). 5 Cases holding the Commissioner not indispensable in such a suit are Yanish v. Wixon, N.D.Cal., 1948, 81 F.Supp. 499; Navarro v. Landon, S.D.Cal., 1952, 106 F.Supp. 73; and Pedreiro v. Shaughnessy, 2 Cir., 1954, 213 F.2d 768, (see discussion......
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