Opinion
Civ. Nos. 1173-48-1177-48.
May 5, 1948.
Carol King and Abraham J. Isserman, both of New York City, and David Rein and Joseph Forer, both of Washington, D.C., for plaintiffs.
George Morris Fay, U.S. Atty., and John Burke, Asst. U.S. Atty., both of Washington, D.C., for defendants.
Separate actions by Gerhart Eisler, by Irving Potash, by John Williamson, by Ferdinand C. Smith, and by Charles A. Doyle, in each instance against Tom C. Clark, individually and as Attorney General of the United States, and Watson B. Miller, individually and as Commissioner of Immigration and Naturalization, in each case for a declaratory decree that plaintiffs are entitled to a hearing in proceedings under the Deportation Act and for injunctive relief.
Judgments for plaintiffs.
The Court delivered the following opinion orally in granting the relief prayed for in the plaintiffs' motion.
The Court. Gentlemen, in these cases the defendant on the fundamental question takes the position that the Deportation Act, 8 U.S.C.A. § 157, does not require a hearing in the wording of the Statute, and that therefore the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., that is, the sections which are in issue here, do not apply.
On that question the Court is of the opinion that the Courts have read due process into the Act, and due process means a hearing, and that therefore hearing is an integral part of the Deportation Act; in fact, just as much as if the Act itself in words stated that a hearing should be held.
The defendant also takes the position that at most the question as to whether or not the procedure that the Government has instituted in these cases is a correct procedure is an interlocutory matter and therefore cannot be passed upon until the present proceedings are concluded.
The Court does not think it is an interlocutory matter in the legalistic sense at all. In the first place, the Court thinks the issue is fundamental. In the second place, the Court thinks it is more or less ridiculous to say that a matter of this importance, which can be decided now just as well as it can at the end of a long proceeding, should await the end of the proceeding, and the Court, therefore, grants the motion for a declaratory decree and injunctive relief as requested in the prayer for relief in these proceedings.
I will sign an order to that effect, gentlemen.