The opinion of the court was delivered by: LEIBELL
The petitioner herein sued out a writ of habeas corpus on July 1, 1949 for a review of certain proceedings of the Bureau of Immigration and Naturalization which had resulted in the issuance of a warrant of deportation on December 16, 1948. Argument on the writ was had before me on July 19, 1948. Final briefs were filed thereon in September, 1949. The writ was dismissed for reasons stated in an opinion of this Court filed February 9, 1950, 90 F.Supp. 397. An order on the decision was entered on February 20, 1950. On the same day the petitioner filed a notice of appeal to the Court of Appeals, Second Circuit, and petitioner was admitted to bail by this Court pending the determination of the appeal.
Also on February 20, 1950, the Supreme Court of the United States rendered an opinion in Wong Yang Sung v. McGrath, 70 S. Ct. 445, 455, holding that the Administrative Procedure Act of June 11, 1946, 5 U.S.C.A. § 1001 et seq., was applicable to deportation proceedings and that such proceedings 'must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity'.
Thereafter, on March 2, 1950 the petitioner through an order to show cause, moved for permission to amend nunc pro tunc the original petition for a writ of habeas corpus by adding sub-paragraphs C, D and E to paragraph 15;
to reargue the writ; and to have the writ sustained. The grounds asserted in support of the motion were that the deportation proceeding was conducted by a Presiding Inspector who was not appointed in accordance with Section 11 of the Administrative Procedure Act and who conducted the proceedings as an examining inspector, performing mixed prosecutive and judicial or hearing functions, in violation of Section 5 of the Administrative Procedure Act.
The Government opposed the motion contending that the filing of the notice of appeal barred the District Court from considering the motion and that the deportation proceeding in this case was initiated or commenced prior to the effective dates of the allegedly applicable sections of the Administrative Procedure Act,
and accordingly was specifically excepted from the provisions of that Act.
The petitioner brought on a second motion, on March 28, 1950, for an order permitting the relator to withdraw the notice of appeal filed February 20, 1950, and thus remove any jurisdictional question. The Government opposes that motion on the grounds that the District Court is without jurisdiction to entertain it; that the application to withdraw the notice of appeal is improper; and that the whole issue should be brought on by a petition for a new writ of habeas corpus.
The earlier rulings
that the filing of a notice of appeal deprived the District Court of authority to proceed any further in the matter, except in aid of the appeal or under Rule 60(a) relating to clerical mistakes, until it has received the mandate of the appellate court, have been modified by an amendment to Rule 73(a), F.R.C.P. which provides:- 'If an appeal has not been docketed, the parties, with the approval of the district court, may dismiss the appeal by stipulation filed in that court, or that court may dismiss the appeal upon motion and notice by the appellant.' No appeal has been 'docketed' and an application for leave to dismiss having been made, on notice, by the appellant, this Court has jurisdiction to entertain it.
The situation here presented is this'- After the February 9, 1950 decision of this Court in the habeas corpus proceedings, and before the record on appeal was docketed, in fact on the same day the notice of appeal was filed, a decision of the Supreme Court supervened which required an examination of its applicability to the facts in the instant case. Wong Yang Sung v. McGrath, 70 S. Ct. 445. In such circumstances it is proper that the United States Court of Appeals for this Circuit have a complete record available, so that it may review the matter in its entirety rather than piecemeal. A recent case in this Court presented a similar problem. In American-Hawaiian SS Co. v. United States (The Alaskan) D.C.S.D.N.Y., 85 F.Supp. 815, when after an appeal was docketed, the Court of Appeals denied a motion for a remand on the grounds of a supervening Supreme Court decision, but granted the movant leave to make application to the District Court to consider the merits of the application. A similar approach to the problem in the case at bar seems proper.
In order to determine whether the petitioner's motion to withdraw the appeal should be granted, the Court will first consider the merits of the original application for leave to amend the petition for the writ of habeas corpus.
A brief chronology of the various steps in the deportation proceeding and a resume of the charges is necessary to highlight the points advanced by petitioner. On April 12, 1930 a warrant of arrest of the alien, Peter Harisiades, was issued by an Assistant to the Secretary of Labor on the grounds that the petitioner had been found in the United States in violation of the Act of October 16, 1918, as amended by the Act of June 5, 1920, 8 U.S.C.A. § 137, for the reason: 'That he is an member of or affiliated with an organization, association, society or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States or of all forms of law.'
The following is quoted from my opinion dated February 9, 1950, 90 F.Supp. 399: 'A search was made for him (the alien) in several states, but the 1930 warrant was not served. Meanwhile he had assumed various aliases. In 1937 he married an American citizen. He has two children. In 1943 his alien registration record was checked and later his location was ascertained; but it was not until May 2, 1946 that the warrant of deportation was served and he was taken into custody.'
'On the same day, the relator was notified in writing that he had been served with and furnished a copy of the warrant of arrest and that he has been released in order to afford him an opportunity to arrange for his defense at a subsequent hearing which would be given to determine why he should not be deported from the United States. In this communication he was also advised of his right to counsel and the various rights and privileges were fully explained.'6A On the same date a formal notice of appearance in the deportation proceeding was filed by Carol King, the present attorney for the alien. On August 28, 1946 notification of a hearing on the warrant of arrest, set for September 12, 1946, was sent to the relator. Two adjournments of the hearing, to September 25, 1946 and October 15, 1946, were granted at the request of the petitioner's attorney and the hearing was finally opened on October 15, 1946, before a Presiding Inspector, Mr. Gilbert Zimmerman, who also conducted the examination of the alien. On that day in the course of the hearing the Presiding Inspector stated:-
'Q. You are informed that in addition to the charge contained in the Warrant of Arrest, the following additional charges are now lodged against you.
'1) That you are in the United States in violation of the Act of October 16, 1918, as amended, in that you have been found to have been after entry a member of the following class set forth in Section 1 of said Act: an alien who believes in, advises, advocates, or teaches the overthrow by force or violence of the government of the United States;
'2) That you are in the United States in violation of the Act of October 16, 1918, as amended, in that you have been found to have been after entry a member of the following class set forth in Section 1 of said Act: an alien who is a member of an organization, association, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the government of the United States;
'3) That you are in the United States in violation of the Act of October 16, 1918, as amended, in that you have been found to have been after entry a member of the following class set forth in Section 1 of said Act: an alien who is affiliated with an organization, association, society, or group that believes in, advises, advocates, ...