Summary
In Rasmussen v. Brownell, 1955, 350 U.S. 806, 76 S.Ct. 44, the Supreme Court reversed without opinion, and remanded the case to us for consideration on the merits, to which we now proceed.
Summary of this case from Brownell v. RasmussenOpinion
No. 11928.
Argued February 23, 1955.
Decided March 31, 1955.
Mr. Lewis Carroll, Asst. U.S. Atty., Washington, D.C., with whom Mr. Leo A. Rover, U.S. Atty., Washington, D.C., was on the brief, for appellant. Messrs. Harold H. Greene, Asst. U.S. Atty., and William J. Peck, Asst. U.S. Atty., Washington, D.C., at the time record was filed, entered appearances for appellant.
Mr. Jack Wasserman, Washington, D.C., with whom Mr. Irving Tranen, Washington, D.C., was on the brief, for appellee.
Before EDGERTON, FAHY and WASHINGTON, Circuit Judges.
This is an action for a declaratory judgment, seeking review of an order of deportation. The Government appeals from a judgment for the plaintiff, who is an alien not claiming American citizenship. The deportation order in this case was made under the provisions of the Immigration Act of 1917, 39 Stat. 874, and neither party suggests that the 1952 Act, 66 Stat. 163, has any application.
The District Court is without jurisdiction to review the order complained of other than in a habeas corpus proceeding. Heikkila v. Barber, 1953, 345 U.S. 229, 235, 73 S.Ct. 603, 97 L.Ed. 972. This court's order of February 6, 1951, granting a Government motion to remand the case to the District Court for trial, was based on the theory that the decision in McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L. Ed. 173, would support jurisdiction in the present case. We think the later decision in Heikkila shows this to have been a mistake, and that our previous order has not become the law of the case which we are required to perpetuate. See White v. Higgins, 1 Cir., 1940, 116 F.2d 312. The case must be remanded to the District Court with directions to vacate the judgment and dismiss the action. Zank v. Landon, 9 Cir., 1953, 205 F.2d 615.
So ordered.