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October 11, 1954

Michael NUKK, Frank Borich, Joseph Siminoff, Felix Kusman, Rose Lightcap, Ida Gottesman, Anna Taffler, Benny Saltzman, Bessie Geiser, Martin Young, Boris Sklar, Plaintiffs,
Edward J. SHAUGHNESSY, District Director of the Third District of the Immigration and Naturalization Service of the Port of New York, Defendant. Betty GANNET, Alexander Bittleman, Claudia Jones, Plaintiffs, v. Edward J. SHAUGHNESSY, District Director of the Third District of the Immigration and Naturalization Service of the Port of New York, Defendant

The opinion of the court was delivered by: MEDINA

The pleadings and issues in the fourteen actions before us are substantially the same. Each of the plaintiffs is an alien who has been ordered deported from the United States after appropriate administrative proceedings which none has sought to review by any judicial proceeding. The order of deportation in each case was based on an administrative finding that, after entering the United States, the plaintiff had been a member of the Communist Party of the United States. Final orders and warrants for the deportation of each of the plaintiffs have been outstanding for more than six months.

Three of the plaintiffs, namely, Gannet, Bittleman and Jones, have not been deported primarily because they were tried and convicted of violations of the penal provisions of the Smith Act, 18 U.S.C.A. § 2385, for conspiring to advocate the overthrow of the United States Government by force and violence. These plaintiffs have been sentenced to various terms of imprisonment and are now at liberty on judicial bond pending their appeals in the criminal action. With respect to the other eleven plaintiffs, they have not been deported by reason of the inability of the immigration authorities physically to effectuate deportation. Some of the plaintiffs are so-called 'stateless persons'; others have been denied, temporarily at least, readmittance to the countries of their nativity or last residence prior to coming to the United States.

 Since more than six months have elapsed from the entry of the final orders of deportation, the defendant has released the plaintiffs from custody on supervised parole in accordance with the express provisions of Section 242(d) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252(d), *fn1" and the regulations promulgated thereunder, 8 C.F.R. § 242.3(c), *fn2" the constitutionality of which plaintiffs now seek to attack.

 As may be seen, the regulations which have been promulgated under Section 242(d) of the Immigration and Nationality Act of 1952 closely follow the statutory language. Likewise, the orders of supervision pursuant to which the plaintiffs were released from custody on supervised parole substantially follow the language of the statute and the regulations, with the exception of certain restrictions with respect to plaintiffs' activities. *fn3" Although all of the plaintiffs have been notified by the defendant of the conditions of their parole under Section 242(d), they have refused to sign the written orders of supervision, copies of which are attached to their respective complaints.

 Since the time of the plaintiffs' release from the custody of the defendant on supervised parole, no action of any kind with respect to any of the plaintiffs has been taken or threatened by the defendant. Moreover, as will be shown later in this opinion, the defendant has no authority to take any further action.

 Following the issuance of the orders of supervision the plaintiffs commenced these actions in this Court, each respectively seeking a declaratory judgment and injunctive relief. The complaints ask that a declaratory judgment be made and entered declaring that Section 242(d) of the Immigration and Nationality Act of 1952, the regulations promulgated thereunder, and the orders of supervision issued against the plaintiffs, are all 'unconstitutional, invalid, illegal, void and inoperative,' and declaring that the particular provisions of the orders of supervision 'are unreasonable and an abuse of discretion.' The complaints further demand that an order be made and entered directing the defendant to set aside and cancel the orders of supervision, and that the defendant be enjoined from requiring the plaintiffs to obey the conditions of their supervised parole as contained in the orders of supervision.

 The plaintiffs have moved, by means of orders to show cause issued at the same time the various complaints were filed, for temporary injunctions against the defendant pending the hearing and determination of the actions. In all cases, temporary restraining orders were issued by single judges of this Court, relieving plaintiffs from any obligation of compliance with the varying provisions of the orders of supervision, pending the hearing and determination of the plaintiffs' motions for temporary injunctions.

 The defendant has cross-moved with respect to all fourteen complaints, asking the Court for an order (1) dismissing all of the complaints herein, pursuant to Rule 12(b) of the Rules of Civil Procedure, 28 U.S.C., for failure to state claims upon which relief can be granted and for failure to join an indispensable party; (2) vacating and dissolving the temporary restraining orders herein pursuant to Rule 65(b) of the Rules of Civil Procedure and Title 28 United States Code, § 2284(3); and (3) appointing a three-judge Court, in accordance with the provisions of Title 28 United States Code, §§ 2282 and 2284, to hear and determine the matters herein in issue.

 The plaintiffs' attorneys offered no opposition to the defendant's application for the appointment of a three-judge Court, and, accordingly, on June 21, 1954, this statutory Court was designated in accordance with the appropriate provisions of Title 28 United States Code, § 2284. All of these actions, including the various motions, were heard together on June 30, 1954, pursuant to orders of this Court, dated June 21, 1954, and June 23, 1954, respectively, and extensive arguments were made by counsel for both sides. On July 27, 1954, the temporary restraining orders referred to above were modified in certain similar respects by an order of this Court, and, as so modified, continue to be outstanding against the defendant in all the cases.

 The position of plaintiffs is untenable principally because there is no justiciable controversy between the parties. It is fundamental to declaratory judgment actions that there be an actual and existing dispute upon which the adjudicatory powers of the court can operate *fn4" ; and it has long been settled law that the constitutional powers of the federal courts do not give them competence to render advisory opinions. And yet that is precisely what plaintiffs here would have us do.

 The District Director is a subordinate official who has no power to take any further action with respect to these plaintiffs beyond what he has already done. His authority ceased with the issuance of the orders of supervision and the release of plaintiffs from custody on supervised parole. Nor is it claimed or alleged in any of the complaints that the District Director has in any manner threatened to take further action against plaintiffs or any of them. Nowhere is it alleged that any of the plaintiffs has violated the terms of the statute under attack. A wilful failure to comply with the regulations issued under Section 242(d) is a penal offense punishable upon on conviction by imprisonment and fine. Thus if they refuse to comply with the conditions of their parole, it is the Attorney General or the United States Attorney for the district in which the parole conditions will have been violated who will determine whether or not plaintiffs or any of them should be prosecuted. For aught that now appears there may be no actual prosecution of any of these plaintiffs, and the factual background indispensable to the determination of any such prosecution, should it take place, is in futuro and as yet non-existent.

 The principle involved here is, in substance, the same as that reaffirmed by the Supreme Court in United Public Workers of America (C. I. O.) v. Mitchell, 1947, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. There, certain employees of the executive branch of the Federal Government and a union of such employees sued to enjoin the members of the Civil Service Commission from enforcing the provision of Section 9(a) of the Hatch Act, 5 U.S.C.A. § 118i, which forbade such employees to take 'any active part in political management or in political campaigns' and for a declaratory judgment holding the Act unconstitutional. In denying declaratory relief to all but one of the employees, on the ground that they had failed to present a justiciable controversy, the Court pointed out that these employees did not allege that they had violated the Act, or that the Commission had actually threatened to interfere with their rights, but only that they desired to engage in acts of political management and in political campaigns and understood that if they engaged in this activity the Commission would order their dismissal from federal employment. A consideration of these factors compelled the Court to conclude that these employees '[seemed] clearly to seek advisory opinions' as to whether or not they could act contrary 'to the rule against political activity.' As to these employees, the Court stated, 330 U.S. at pages 89-90, 67 S. Ct. at page 564:

'As is well known the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues 'concrete legal issues, presented in actual cases, not abstractions' are requisite. This is as true of declaratory judgments as any other field. These appellants seem clearly to seek advisory opinions upon broad claims of rights protected by the First, Fifth, Ninth and Tenth Amendments to the Constitution. * * * [The] facts of their personal interest in their civil rights, of the general threat of possible interference with those rights by the Civil Service Commission under its rules, if specified things are done by appellants, does not make a justiciable case or controversy.
'The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against ...

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