Tom We Shung v. Herbert Brownell, Jr., 227 F.2d 40 (D.C. Cir. 1955). · Go Syfert
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Tom We Shung v. Herbert Brownell, Jr., 227 F.2d 40 (D.C. Cir. 1955). Cases Citing This Book View Copy Cite
8 citation events across 6 distinct courts.
Strongest positive: Matter of Lincoln Plaza Towers Assocs., 6 B.R. 808 (Bankr. S.D.N.Y. 1980)
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At page 41 Determining judicial review after statutory enactment1 citing caseEstevez v. Brownell, 97 U.S.App.D.C.-, 227 F.2d 38. Since the complaint was filed after the 1952 Act took effect, we think it immaterial, so far as the right…opening of page *41 (no citing court says what it cites this page for)
  • Matter of Lincoln Plaza Towers Assocs., 6 B.R. 808 (Bankr. S.D.N.Y. 1980).published
    Shung v. Brownell, 227 F.2d 40, 41 (D.C.Cir.1955), aff’d on other grounds, 352 U.S. 180 , 77 S.Ct. 252 , 1 L.Ed.2d 225 (1956); Magruder v. Safe Deposit & Trust Co., 159 F.2d 913, 914-915 (4th Cir. 1947). 31 .
Retrieving the full opinion text from the archive…
Tom We SHUNG, Appellant,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, Appellee
12117_1.
Court of Appeals for the D.C. Circuit.
Oct 13, 1955.
Published opinion
227 F.2d 40
1955 U.S. App. LEXIS 3154
Mr. Jack Wasserman, Washington, D. C., with whom Mr. Andrew Reiner, was on the brief, for appellant., Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., George E. Hamilton, III, Asst. U. S. Atty., and Albert E. Reitzel, Asst. Gen. Counsel, Immigration and Naturalization Service, were on the brief, for ap-pellee.
Edgerton, Miller, Fahy.
Cited by 6 opinions  |  Published
EDGERTON, Circuit Judge.

Before the 1952 Immigration and Nationality Act [1] was passed, the Attorney General ordered Tom We Shung excluded from the United States and Tom We Shung sought review under the Administrative Procedure Act [5 U.S.C.A. § 1001 et seq.] and a declaratory judgment. We decided against him on the merits. 93 U.S.App.D.C. 32, 207 F.2d 132. The Supreme Court, citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, vacated our judgment and remanded the case to the District Court with directions to dismiss the complaint. Tom We Shung v. Brownell, 346 U.S. 906, 74 S.Ct. 237, 98 L.Ed. 405. The Supreme Court thereby held that an exclusion order, like a deportation order, could not be reviewed, otherwise than in habeas corpus, on a complaint filed before the 1952 Act took effect.

Obviously our judgment settled nothing, since it was vacated. After the 1952 Act took effect Tom We Shung filed the present complaint, based on the same exclusion order and seeking the same relief. The District Court ruled that it was “without jurisdiction to review an order of exclusion in proceedings other than habeas corpus.”

We think the court had jurisdiction to review the order of exclusion.[*41] Estevez v. Brownell, 97 U.S.App.D.C.-, 227 F.2d 38. Since the complaint was filed after the 1952 Act took effect, we think it immaterial, so far as the right to judicial review is concerned, that the exclusion order was issued before the Act took effect. Muscardin v. Brownell, 97 U.S.App.D.C. -, 227 F.2d 31.

The present question, whether review may be had on a complaint filed after the 1952 Act took effect, is not res juMcata, since it neither was nor could have been decided in the previous suit, filed before the Act took effect. [2]

Reversed.

1

. 66 Stat 163, 8 U.S.C.A. § 1101 et seq.

2

. In this respect we disagree with Heikkila v. Barber, 9 Cir., 216 F.2d 497, certiorari denied 349 U.S. 927, 75 S.Ct. 769.