J. Samuel Wacker v. J. G. Bisson, Consul General, Dominion of Canada

in Nеw Or- was arrested laws.1 Wacker custody of and committed leans Orleans, Andrews, Jr., A. New Dean bail, Marshal without the United States La., appellant. for Short- pending preliminary examination. Orleans, La., Many, Hepburn M. New sought arrest, a writ ly Wacker after his appellee. for ground that the on the of habeas WISDOM, and Circuit Before RIVES authority to without Vice-Consul was Judge. MORGAN, Judges, District and complaint. district The the execute granted writ, bail denied but court the Judge. WISDOM, Circuit 25, 1963, April which Wacker met. Wacker, appellant, J. Samuel appealed from denial the Wacker brings Canada, awaiting extradition to application was This for a writ. declaratory judgment action this off-beat prosecution. for lack dismissed attacking validity unappealable anof the January 13, 1964, United States the is in extradition order. Wacker Since hearing week-long Commissioner held might just custody, cast as well have validity on and the the of the detention application form of an the action the justify sufficiency of the evidence however, corpus. Wacker, for habeas Wacker’s extradition. 18 U.S.C. § approach has twice that without tried The Canadian intervened Government appeal, complaint on success. In the The Commis- the extradition fronts, plаintiff at- advances on all the tacking Wacker, against certified found sioner constitutionality numer- the Secretary of the evi- to the State ous international treaties conven- speci- was to sustain the dence sufficient tions, challenging stat- charges, fied and committed the extra- (as applied), mak- ute and as written custody. ditee to the marshal’s ing possi- all other contentions based on day was commit- On the same that he ble, impossible, some reasons the sought ted, January 20, 1964, Wacker invalidity of the Wacker extradition. corpus on the second of habeas writ names as defendant Consul General thе ground that Commissioner committed the Canada, demanding the state. custody was him to before the record complaint district dismissed court the brought completed. ha- second He the subject jurisdiction for lack of the over against Dominion suit person matter and over the of the defend- although Canada, Wacker was taking remand, ant. We reverse and custody marshal. United States jurisdic- court view the district sovereign plead immu- Canada did not tion under the 26, 1964, nity. February motion of Act, ff., col- 28 U.S.C. to review § Canada, full after a the Dominion laterally validity hearing, court dismissed district proceeding. petition cause of ac- to state a for failure appeal. I. did not tion. Wacker brought April 9,1964, the de- the Canadian Vice-Con- March Wacker complaint claratory judgment before the be- suit now sul in Orleans filed a New past, (1956); Note, been Harv.L.Rev. 1. In courts have Canadian (1955). is reversed. residents situation to extradite Canadian Now the reluctant Ironically, commentators to the States for violations as the above United rigorous suggest, Tim See enforcement securities laws. United States partly Pollack, results from Cana laws bers & “Extradition Canadian securities protect States from a da to the United States Securities desire based the National securities frauds Fraud: Frustration citizens Countries,” Fed.B.J. of Both Canada. Policies Court, naming Bisson, corpus proceed as defendant J. G. A. In a habeas General, ing controversy Consul Dominion Canada. the case or is between person custody The Canadian Consul General moved to held in and his cus dismiss, urging lack of over todian. Wacker’s custodian is the Unit subject pleading im- matter and ed States marshal. In this foreign sovereign munity of con- action to review extradi acting hearing designated tion sular officer within Wacker has general defendant the consul his duties. The district dismissed court demanding government. pеtition.2 This is not enough proceeding in itself to draw the beyond

II. the boundaries of “case or con troversy”. question arises in simi question The threshold is wheth lar form in habeas of an proceeding er this meets the constitu demanding when the requirement tional of a “case or contro government joined intervenes or is as a 3 versy” simply opini advisory or is an Ruiz, 1896, defendant. Ornelas 161 declaratory on.4 A is 502, 687, 689, U.S. 40 L.Ed. 5 advisory opinion and falls within the only demanding government’s consul scope judiciary article, if the case appealed a habeas in fa decision * * presents dispute “a difference or Supreme vor of extraditee. ‘appropriate judicial is for deter government Court said: he “[A]s mination,’ hypothetical or [not] abstract represented party was the real interested * * * or academic moot resisting discharge, was concrete, touching and [but] definite properly prosecuted by him on its be legal parties having relations adverse (Emphasis added.) half.” at U.S. legal interests. It must be a real and 507, 690, In. S.Ct. at L.Ed. at 789. controversy admitting spe substantial an identical situation Ninth Circuit through cific relief decree a conclu being government “The British held: * ** ”6 sive character. interest, party consul, the real its act- judgment, 2. In its reasоns for the district States; more versies between two or stated, part: petitioner n —between a court “Now an Citizens of State and attempting by Wacker is a third effort State; dif other Citizens of —between processes to frustrate States, ferent Citizens of the —between which exist between the United States claiming same State Lands under Grants of America and the Dominion of Canada. State, States, of different and between a Believing, do, as we the defendant foreign thereof, or the Citizens and representative Consul General in his ca- Subjects.” States, or Citizens pacity action, is immune to this as well 1911, States, 4. Muskrat v. United 219 U.S. itself, thе Dominon of Canada we 246; Willing 346, 250, 55 L.Ed. have no alternative but to this dismiss Chicago Ass’n, 1928, Auditorium suit. Wacker has been accorded care- scrutiny proceedings ful of all of the Frankfurter, Advisory See Opinions”, “A Note brought in this in the two ha- (1924). 37 Harv.L.Rev. 1002 corpus proceedings He referred to. Hartford, 5. Aetna Life Ins. ofCo. Conn. v. permitted should not be further to frus- Haworth, 1937, S.Ct. trate the action of this Court.” Borchard, 81 L.Ed. 617. See Judgments (2d 1941) ; 132-135 ed. Hart ‍‌​‌‌​​‌​‌‌​​‌​​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​‌​‌​​‌​​​‌​​‌‍III, 3. U.S.Const. art. sec. 2: “The Wechsler, & The Federal Courts and the Gases, Power shall extend to all in Law System “Developments Federal 135-138 Equity, arising under this Constitu Declaratory Judgments”, in the tion, Law— the Laws of the United (1949) ; Harv.L.Rev. Com 792-93 made, made, Treaties or which shall be ment, Prerequi Threat Enforcement — Authority; under their all Oases —to Controversy, of a site Justiciable 62 Col. affecting Ambassadors, public other 106, 110, 117, (1962). L.Rev. Consuls; Ministers and all Gases of —to admiralty Jurisdiction; Haworth, and maritime 6. Aetna Life Ins. Co. v. 240-241, —to Controversies to which the United 300 U.S. at 57 S.Ct. at Party; States shall be a Gontvo L.Ed. at 621. —to limits, party prose- narrow ing it, proper Within these to offense. was a controversy proceeding or to there is a case cute the corpus proceeding, and constitutional sense between extra- defend the demanding government. ap- prosecute proper party ditee is a many Strakosch, not within Cleugh which are peal.” Cir. Indeed issues might principle still our narrow of review estab- apply present or case contro- should constitutional habeas cases lished in these versy. do all the We not decide whether to this against demanding government, lim- fall within issues Wacker raises controversy. form hold party its or in interest whether the case real within the or that all issues which fall of action is habeas corpus scope anything, judgment. extraditee narrow habeas If controversy by requirement. meet sharpens the constitutional the case choosing for a an action early dаys of the C. From the judgment, nominal eliminates the lawyers Republic, have ar constitutional problems of party. The constitutional gued exclusive that the executive has the controversy usually arise when case power make final decision to extrad party in parties real one of the ite.9 In modern times the executive Compare Breeze Coffman v. interest. deny branch has assumed discretion Corporation, appropriate cases, a dis Muskrat v. United cretion exercised in favor seldom States, 1911, 346, 31 S.Ct. hold that In this we extraditee.10 case 55 L.Ed. 246. declaratory judg by scope of the review scope ment of review is the same the complaint raises Wacker’s B. by corpus. highly these limits sweeping habeas Within dubi of and multitude judgment issues, scope declaratory of of extradi an review review ous but authority should be the extradition tion does not conflict with the any chooses habeas than the extraditee more whether executive branch judgment.7 corpus declaratory corpus con habeas review of extradition by authority scope is ex habeas review flicts with the traditional existing law, tremely Under ha limited.8 the executive branch.11 Review only (1) declaratory judgment whether includes such review (2) jurisdiction, magistrate legality had tests proceedings; question a reason showed wisdom whether evidence guilty, ground to the accused able believe of extradition remains for the executive treaty (3) awas and whether the offense branch to decide. exclusion, pro- deportation 364, Miller, 1920, cases 40 7. The and 252 616; lins v. U.S. analogy. Supreme 347, vide a useful 64 L.Ed. Charlton S.Ct. 945, scope Kelly, 1913, 447, of review 229 S.Ct. Court holds U.S. 33 deportation Ames, 1274; cases is 184 Terlinden v. exclusion 47 L.Ed. 270, 484, or de- habeas 46 L.Ed. 534. same whether U.S. declaratory govern claratory judgment. The new strict limitations These same remedy expand judgment declaratory judgment in an does for corpus. habeas case. Shung, 1956, 352 v. Tom Brownell We 1893, Fong 9. See Yue v. United 1 L.Ed.2d 225. cases, exclusion and 905, relying declaratory judg- on Chief Justice John Mar cases, deportation Congress speeches shall’s before he merely for ment is a substitute appointed to was the Court.. declaratory judgment corpus. Since a remedy, the a substitute for a coercive is Note, in Ex- Executive Discretion See device use of the tradition, 62 Col.L.Rev. scope of review. not affect the should (1962). Phillips, 1925, 268 U.S. 8. Fernandez v. Col- Id. at 1328-1329. remedy. Peterson, See McLeod 3 Cir. III. F.2d arising problems We turn to from Declaratory Judgment Federal Act This falls into the second case itself. category declaratory judgment cases. Wacker cannot be denied relief on the Aristeguieta, In Jiminez v. 5 Cir. ground attorney asked a de F.2d held that it had Court claratory judgment instead of an from the relief; may plaintiff ask for a de magistrate order in an extradition claratory judgment if even also proceeding.12 question do seek a coercive decree.14 The “declara reasoning or the of that results deci- tory judgment is an and en alternative sion;13 Aristeguieta Jiminez does tirely remedy optional [T]here pro- not control instant case. This justification ordinarily is no for the re ceeding appeаl from is not an an extra- fusal of a on the order, proceeding dition but a for col- ground executory judgment that an was legality lateral review of the extra- Borchard, Declaratory obtainable.” dition. Judgments (2d 1941) at 316.15 ed. See writes, Professor Borchard “There are also Ballard Ins. v. Mutual Life Co. of general types two action which de- York, New F.2d claratory Fidelity (1) Casualty relief Allen is invoked: where v. American & Co., 458; Carpenter plaintiff Cir. ‍‌​‌‌​​‌​‌‌​​‌​​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​‌​‌​​‌​​​‌​​‌‍seeks declaration that he Edmondson, 92 F.2d 895. privileged act, or is from immune Rule Rules of the Federal Civil liability by, a * * * asserted the defendant Procedure states that “The existence оf actions in which no de- coercive adequate remedy pre another does not sought (2) possible; cree or even clude relief though plaintiff, capable where the appropriate.” in cases where it is See suing decree, executory for an or coercive Moore, Federal Practice section 5707 contents himself with the milder declara- chapter generally. language rights adequate tion as to his needs Declaratory Judgment of the Federal Act purpose.” Borchard, Declaratory declaratory itself leaves no that the doubt Judgments (2d 1941) at 315. ed. Extra- judgment оptional, is an alternative rem proceedings may edy. declaratory dition fall into either The act authorizes a category. or not further relief “whether cases no some extradition sought”. is or could be 28 U.S.C. § coercive decree is For available. exam- ple, if the 2201. is not held in cus- extraditee

tody, corpus; analogous cannot use habeas a In a number situations declaratory judgment may permit declaratory judgment his courts a as be Aristeguieta Jiminez, case, 12. But see v. third Merino presented which would have 5 Cir. 1960, 206; City squarely, attorney 274 F.2d First National the issue Aristeguieta, extraditee, Bank of New York 2 Cir. fоr the Wacker’s coun- v. unlike 1960, 219, here, sought corpus F.2d vacated and dismissed sel rather 287 habeas moot, 1963, 49, declaratory 144, appeal judgment. as 84 S.Ct. than an 375 U.S. or a 11 L.Ed.2d 106. Note, Aristeguieta, 13. But cf. 61 Jiminez v. Note, Aristeguieta, See also v. Jiminez (1962). Mich.L.Rev. 383 (1962). 61 Mich.L.Rev. Cf. Merino 383 Hocke, 1961, v. 9 Cir. 289 F.2d Declaratory Judgments Borchard, 14. ff 316 Hocke, 1963, Merino F.2d v. 324 (2d 1941) Moore, ; ed. Federal Prac Marshal, Merino v. States United para. 3023-3024; Develop tice 57.07 at 1964, Cir. 5. first 326 F.2d Declaratory Judg ments ments, in the Law — Circuit, two Merino cases Ninth 787, (1949). 62 Harv.L.Rev. dictum, states that a direct lies Judgments Anderson, Declaratory from an 15. extradition before a See 1951). (2d United States In the sec. 541 ed. Commissioner. сorpus.16 District conducts Thus Court or Commissioner for habeas a substitute declaratory judgment The ex- may cases on a extradition use alien clusion, hearings parole deportation, le test the rather than habeas proceedings. partly gality rest of the Brown on Admin- Section exclusion Act;17 180, Shung, istrative the APA Procedure ell v. Tom 352 U.S. hearings.18 apply a de 1 L.Ed.2d 225. Or analogy persuasive claratory judgment habeas But in lieu of there is a be- deporta legality of a tween 10 of the APA and the to test Section Pedreiro, Shaughnessy Judgment Declaratory Both tion v. stat- order. Act. declaratory judg- broadly 99 L.Ed utes authorize Robinson, specifying any par- 868. ment also Cruz-Sanchez v. actions without See 771, 774; If, types Brovich ticular as Tom We 249 F.2d lawsuits. Cir. Shung hold, Holton, 841. 222 F.2d Section 10 and Pedreiro declaratory judgment permits Circuit of Columbia the APA District person corpus, of a crime held convicted that a lieu the Federal may bring Judgment Declaratory Act also author- against parole of ha board instead his as izes a sub- Hurley jailer. corpus. stitute for habeas D.C.Cir.1961, Reed, underlying policies of the S.D.N.Y.1965, Esperdy, Cf. Hom Sin support Act (re 903, (March 1965) F.Supp. judgments use extra immigrant preference petition). view of remedy per dition useful cases. It is a course, proсeed mitting confrontation between Of direct ings exactly interest, parties ex- do not stand two real pa exclusion, deportation, demanding government, footing or traditee triangular complications of proceedings. An administrative role without deporta Ruiz, corpus. exclusion or ficer conducts See Ornelas hearing; parole tion United States or 40 L. Forsythe Ohio, Contra, any v. State of the or executive curiam). (per board, department, independent Cir. establish ment, bureau, institution, agency, no states reasons Ninth Circuit commis gives support sion, separate authorities the administra office of opinion. per curiam Court’s brief tive breach Government legislative United judicial but not the States provides: “The APA 10 of the Section ” branches. U.S.C. proceeding for form of Report § 304. The Senate Committee * * * any applicable form of shall be ‘agency’ also states that “The word (including legal actions for declara judicial, by excluding legislative, defined prohibitory tory judgments or or writs of ” * * * and territorial authorities. injunction corpus) mandatory or habeas 1945, 752, Cong., See S. in Sess. 79th 1st jurisdiction.” competent any in court of Act, Legis Procedure Administrative 1009(b). § U.S.C.A. History lative at 196. sug- history legislative history of the APA legislative 18. The This indicates that gests may apply judicial not to extra- it the APA the entire excludes hearings. government. Act Section of dition branch A of the “agency speaks therefore, Commissioner, of ac- an States arm “agency” Court, may an 2 defines tion”. Section of the District an be * * * authority “agency” purposes of the Gov- as “each of the APA. The legislative history suggests than States other ernment of the United the Act courts, govern- Congress, in section 2 word “courts” ” possessions. narrowly should not be construed. ments 1945, June, light ‍‌​‌‌​​‌​‌‌​​‌​​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​‌​‌​​‌​​​‌​​‌‍legislative history, Print of Senate Committee this a United “ ‘agency’ holding substan- is defined States an states that Commissioner extradi- * * * Reg- may tially hearing pur- Federal tion poses be a “court” as Procedure See Administrative of the APA even if he is ister Act.” Act, Legislative History, Congress, purposes appeal 79th “court” for of direct from Register hearing. Aristeguieta, The Federal at 12. See Jimenez v. 1944r-1946 “agency” 1961, President 106. an “the 290 F.2d Act defines Cleugh nity Strakosch, instance, court of first it Ed. Cir. immunity appeal 330, any also waives from 332. judgment. Ordinarily adverse is out of cus accused If an who sovereign immunity waiver of does not brings mistakenly corpus, tody separate extend to a and unrelated law- petition as a suit the court treat g., Hughes e. In re suit. See Creditors deсlaratory judgment. McLeod v. for a Co., N.Y.Sup.Ct. & 9 Misc.2d Peterson, If F.2d N.Y.S.2d This custody, is in the Federal the accused is not a direct is no bar to Act hearing pre- from the extradition or the in an extradition vious habeas it a actions. Nor is com- case. pletely separate lawsuit; and unrelated IV. it is a collateral review of upheld de The court below sovereign immunity. plea of fendant’s guidelines We take our from Department makes The State here comprehensive the latest and most Su suggestion Compare immunity. Rich preme Court of im discussion of waiver Vaeuba, Cir. Naviera munity by foreign state, City National any question 24. Nor there Republic China, Bank of New York general plead capacity of a consul S.Ct. government sovereign immunity of his immunity foreign 389. The of a state is The crucial an extradition case.19 judge-made law. It does not rest question participa is whether Canada’s any Constitution or federal statute. As tion in and ha pointed privileged the Court “the out: proceedings constitutes waiver position foreign of a not an state is ex immunity. plicit command of the Constitution. It given policy rests on considerations le The Dominion Canada gal sanction Id. Court.” at extradition, initiated inter Wacker’s 75 S.Ct. at 99 L.Ed. at ap proceedings, vеned in the extradition sovereign immunity has con peared and, proceedings, in both habeas years. Sovereign designated tracted in although recent im defendant as the munity legal plead petition, did not “is a which the second habeas doctrine sovereign immunity protests its des not been favored the test time. ignation plea increasingly as defendant. Canada’s It has been found to be in day. immunity very comes late growing subjection conflict with the sovereign, governmental a for Unlike a judg domestic action to moral eign immunity sovereign ap if it spite waives ment.” Ibid. of some differ pears timely plea. ences, similarity and fails to make a a basic there is between Fajardo Sugar Co., City Richardson National Bank case and the present Republic case. The of China Restatement, Foreign private Law Relations sued a private citizen. The citi (Proposed 1962) up section Draft sep Official zen set a counterclaim on a based Hackworth, Digest 74(3); 2 section 176. arate and unrelated transaction. foreign sovereign Republic sovereign If the immu- waives of China im- asserted diplomatic suits, party 19. A is not officer. consul a tbe was the nominal Normally Government, consul the im- a cannot assert Canadian consul thе munity sovereign general. general a Restate- of state. The consul has act- Foreign 74(2) ment, throughout Relations Law sec. ed on behalf of Canadian the (cid:127) (a) opin- purposes a. But the Canadian and Comment Government. For this of immunity distinguish consular for all acts consul has ion no we see reason to be- including capacity, personal immunity the within official his tween the of the con- proceedings. sovereign immunity extradition Re- initiation of sul and the Foreign statement, sec. Relations Law Dominion of Canada. prior 85(1). the ha- In and the immunity counterclaim, munity suit in a collateral attack the to as to the but forеign immunity hearing. on the extradition The China waived Court held that government by making voluntary appearance: in an ordi- which intervenes “The a * * * nary subjects appeal. lawsuit itself to an is short of matter the invoking appeal foreign government of law and The reviews all errors e a have [w] against resisting no some errors of fact. there is it Here our law but a claim only by recovery. appeal, fairly direct review is the which would curtail its review, litigant, scope law, any of collateral attack. other It wants our like declaratory cor- or habeas law from the claims but it wants our free pus, justice.” 361-362, normаl at is much narrower than the Id. at scope appeal. Broadly phrased, The im- on an review L.Ed. at immunity plied is City here there- that a for- waiver the National Bank holds eign government much narrower than waiver fore intervene vol- cannot normal, appealable advantage untarily, ease. over a obtain an private citizen, and then retire behind a Foreign support conclu- cases also our immunity private citi- shield when zeal- sion. The courts of Britain Great quo. attempts to the status zen restore foreign ously immunity protect general principle case stands for the sovereigns. British courts hold But the by foreign voluntary appearance that a immunity sovereign ex- that a waiver immunity any government as to waives subsequent if collateral tends essentially orig- taken defensive measures appeal from was no there direct private citizen. Abuba- inal of Johore v. Sultan lawsuit. Privy kar, Judicial Committee principle applies present to the Law Re- 19 International Council City per- casé. The National Bank case ports No. 38 at 182. completely mits a unrelated counterclaim against foreign government in the holding fact on the rest our same The instant case is in the lawsuit. government demanding awаs separate nature a “counterclaim” in a hearing. party If the arising lawsuit out of the transac- demanding government intervenes very step, tion. We but a small take demanding gov hearing, step, beyond City Bank. the National immunity to subse its ernment waives Like the counterclaim in the National validity of quent review the actions to City case, judg- Bank entirely ment action is If defensive. succeeds, Wacker he will not obtain an V. recovery against affirmative the Domin- Unfortunately Wacker, ishe only nullify ion of Canada. He will no off in a better litigation prior results Domin- proceed action than in his habeas City ion of Bank Canada. National ing; teaches, Shung as Tom We permitted the Court an unrelated coun- pro same in both review the terclaim, private had because the citizen ceedings. Indeed, off. be worse no other recourse equitable A foreign government. Wacker here remedy sound discre committed hearing; no from the extradition tion the courts.20 Cruz-Sanchez recourse is collateral review Robinson, declaratory judgment. court an alien had al held that when ready judicial re There is unfairness to the demand- obtained ing government implied deportation in an waiver view Mechling Barge Mfg. C-O-Two Lines United Kerotest Co., 1952, 324, 331, Equiрment Fire Byers L.Ed.2d See Public Serv Co., Wycoff Byers, F.2d ice Commission of Utah v. 254 205. 237, 73 S.Ct. 96 344 U.S. short, hold order, we district he was entitled jurisdiction declaratory judgment. by court has to review the le- order the same gality proceeding court un- Robinson the In Cruz-Sanchez v. corpus in true “res der the Federal conceded pointed judicata apply”, and remanded but out: Act. case is reversed does not proceedings for opinion. consistent this with complete had a re- “Cruz-Sanchez corpus. The trial view court there made all the essential Judge (dissenting). RIVES, Circuit

findings required Ad- either the or the Procedure Act ministrative motion The district court sustained the Immigration Act, either General, Consul Domin- defendant evidence, due standards of review Canada, ju- for lack of ion of to dismiss process other fields. risdiction, succinctly stated its rea- declaratory petition, Cruz-Sanchez as follows: sons nothing up which had not been set “Reasons. upon already. passed a There is argu- “Plaintiff’s counsel in oral guarantee of conclusive- further against ment announced that the suit judgment. first No sub- ness sequent Beeson, defendant, was not in the changed the situ- had events against personal nature of a declaratory petition ation, since against Beeson in his but one Beeson day in ha- was filed representative capacity as Consul Further- beas more, was entered. Canada, General of the Dominion alleged for fail- excuse being only way plaintiff’s this up grounds for ure to relief set all counsel believed he could obtain proceedings. in the habeas against process the Do- service latter matters are neces- These minion of This Court is Canada. sary support position taken without to entertain of them is court. Mention the trial against foreign suit nation or sov- fact that made because ereign such as the Can- Dominion gained appellant inordinatе an ada or its New Orleans Con- appeal to this amount time representative sul General as is no merit.” there Court which sovereign, Dominion of Can- F.2d at City ada. National Bank of New a similar Here we have situa Republic China, York v. U.S. tion, except that Wacker has had the ben (1955), reh. den. S.Ct. hearings. of Uvohabeas Even efit S.Ct. corpus proceedings in federal habeas Mill, 389; Matthews Rice v. Walton brought by prisoner, district state 1949, U.S.App.D.C. F.2d evidentiary court need hear not hold an 69; ex rel. Cardashian United States ing a state court has held full when Snyder, D.C., 1930, 44 F.2d fair on all issues. 827, 51 den. 283 cert. 351, Sain, 1963, Townsend v. the Con- Since L.Ed.2d 770. being representa- in his sul is sued principle apply in should capacity representative of the tive judgment action. If the district court Canada, en- the Consul Dominion joys should that Wacker has had a conclude immunity the same suit. hearing in full and fair the two habeas Arcaya Paez, S.D.N.Y., 1956, 145 proceedings on those issues this case Cir., F.Supp. affirmed 10 necessity serious, is no which are there Etivebank, E.D. Samad evidentiary holding any additional Va., F.Supp. Puente Spanish Nat. (cid:127)3fr (cid:127)X* if Court, through remedy by declaratory judgment for

“This its chief the judge, deportation in Herbert W. Chris- exclusion and Honorable cases which tenberry, in two matters be- need does exist in heard extradition orders. involving Shaughnessy plaintiff Pedreiro, 1955, him and his fore by proposed Domin- 99 L.Ed. alleged inadequacy ion of Canada for criminal the Court to the referred Canada, deporta habeas offenses which occurred in fully rights by saying considered the tion orders that would not it plaintiff completely and has reviewed keeping Immigra inbe with either the proceedings all of the which occurred tion Act or the Administrative Procedure before the United Com- States require person deport Act “to ordered hearings missioner in on extensive go jail ed to in order to obtain review January 13, 14, 15, 20, 1964. Likewise, holding a court.” in proceedings The to were referred challenged exclusion orders be either corpus proceedings, and in by declaratory judg Judge Christenberry both instances action, ment the Court noted in Brownell plaintiff’s petition. denied following See Shung, 1956, 180, 183, v. We of this docket numbers 252, 255, 1 L.Ed.2d Docket Court: Miscellaneous 1117, No. corpus proceeding “For a habeas Applica- In the Matter the alien must be detained at the Joseph tion of Samuel Wacker custody, least be in technical as the Corpus, ofWrit Habeas writ de- puts Government it. On the other by Judge Christenberry nied on hand, declaratory judgment action April 22, 1963; and Miscellaneous requires no such basis and odium No. Dоcket the Matter pres- of arrest and detention is not America, United States of rel. ‍‌​‌‌​​‌​‌‌​​‌​​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​‌​‌​​‌​​​‌​​‌‍J. ex ent.” Samuel Wacker Dominion of Can- hand, On the other in criminal extra- ada, Applying for a of Habeas Writ proceedings dition the first writ to be Corpus, by Judge writ denied Chris- apprehen- issued is a “warrant for the tenberry February on person charged.” sion so petitioner “Now Petitioner Wacker is at- U.S.C. 3184. The in this § tempting by a third to frus- case is effort confined Parish Prison of processes Orleans, trate which New Louisiana. exist between the United States majority scope holds that America and Dominion of Can- review in a do, Believing, ada. as we that the corpus pro- is the same inas a habeas defendant Consul in his General ceeding. point holding that the representative capacity immune is opened Act has action, to this as well is Do- backdoor to review an extradition or- itself, minion of Canada we have escapes pro- der me when the front door but to this suit. alternative dismiss grants vided the Great Writ access Wacker has been accorded careful justice provides same court of scrutiny proceedings of all of relief. brought treaty When there is a or convention corpus proceedings two habeas re- power for extradition the vested per- ferred He should not be to. person executive surrender further to ac- mitted frustrate the foreign government. to See Valentine tion of this Court.” Neidecker, 1936, v. United States ex rel. agree judge. I with the district learned 9, 299 analogy suggested by Fong Ting States, 1893, cases Yue v. United deportation hearings exclusion does 149 U.S. apply, because there a real ex need. States rel. Knauff v. Shaughnessy, 542- L. HILLYER and also, Vincent Manuchehr 317; see Riahi, Appellants, 3184; Jimenez v. Ariste- 18 U.S.C.A. § guieta, 1961, 290 F.2d 106. 5 Cir. CORPORATION, PAN AMERICAN PETROLEUM very provides lim- The Great Writ Appe llee. judicial ited review but it has No. 7725. De- been held that heretofore Apрeals claratory provides' United States Court of Act an al- Tenth Circuit. ternative, additional, alone an let mode June review. significant It in Brownell v. Shung, supra, Supreme Court “ * ** said that exclusion orders challenged be either habeas cor-

pus by declaratory judgment action.” (Em- at at 255.

phasis added.) did not hold It that even challenged by

exclusion orders could be declaratory judg-

both habeas holding ment. That is also as to the true availability deportation

for the review of orders in

Shaughnessy Pedreiro, supra. There

is, submit, Congress I no indication that

intended successive reviews

the same action. I would administrative

agree with the Ninth Circuit there nothing nothing statutes and permits

in the decisions which cumula-

tive remedies and de-

claratory petition against the order deportation and a exclusion fortiori the same extradition order. See Rosenberg,

Arellano-Flores Cruz-Sanchez v.

Robinson,

Sigurdson Guercio, S.D.Calif., v. Del ‍‌​‌‌​​‌​‌‌​​‌​​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​‌​‌​​‌​​​‌​​‌‍F.Supp. important treaty obliga-

It is that the

tions of States be honored unnecessary delay,

without and this case permitting

well illustrates how ha- addition to corpus may unreasonable, result delay,

if not interminable not consistent prompt performance

with the of our

treaty obligations.

I would affirm the court, respectfully

district and therefore

dissent.

Case Details

Case Name: J. Samuel Wacker v. J. G. Bisson, Consul General, Dominion of Canada

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 22, 1965

Citation: 348 F.2d 602

Docket Number: 21629_1

Court Abbreviation: 5th Cir.