Myer KLIG, Appellant, v. Herbert BROWNELL, Attorney General of the United States, Appellee.
No. 12846.
United States Court of Appeals District of Columbia Circuit.
Decided April 4, 1957.
Argued Oct. 25, 1956.
We turn to the second group composed of claims 5, 6 and 7, which differ from the first group in limiting the solvent to “approximately 95% methyl alcohol.” With respect to these claims the District Court fоund as a fact in finding No. 5 that the evidence failed to establish any difference critical to an improved result in the use of Stradar‘s solvent instead of that disclosed by the first Hickman patent. The evidence is to the contrary and shows without contradiction, as we have noted above, that the use of Hickman‘s solvent of acetone and methyl alcohol would injure Stradar‘s plate and make it unsatisfactory for use. The rejection of claims 5, 6 and 7 on the basis of finding of fact No. 5 was therefore clearly erroneous.
The third group, claims 10, 11 and 14, refеr to the depth of dye penetration as being critical. Claim 10 describes a “depth less than the maximum deformation by engraving.” Claim 11 refers to a “depth of the order of 0.0001 inch.” Claim 14 prescribes a depth “less than the maximum deformation encountered in engraving.” The District Court found in finding of fact No. 6 that “Claims 10, 11 and 14 are indefinite in their reference to the depth of penetration of the dye in the base material and, therefore, define nothing inventive over the Hickman patents.” Hickman was not concerned with limiting the depth of the dye penetration, as we have seen. But with Stradar the depth to which the dye penetrated was most critical, for reasons already noted.
It seems obvious that the depths of penetration in claims 10 and 14—less than the maximum deformation by engraving—must be related to and equated with the “depth of the order of 0.0001 inch” specified in claim 11. The finding that a reference to a depth of penetration of the order of, i. e. about or approximately, one ten-thousandth of an inch is indefinite cannot be accepted as realistic. It would be difficult to be more precise. The three claims were sufficiently definite as to the depth of the dye penetration to prevail over the Hickman patents.
We think the record shows that Hickman and Stradar, working in different fields, solved different problems by developing different processes which produced products of different structure designed for different uses. It follows that Hickman‘s processes and products, though earlier, did not anticipate Stradar‘s. The District Court‘s dismissal of the complaint will be set aside, and the cause will be remanded for the entry of a judgment authorizing the Commissioner of Patents to issue a patent embodying the 14 claims which were formerly rejected.
So ordered.
FAHY, Circuit Judge, dissents.
Mr. David Carliner, Washington, D. C., with whom Mr. Jack Wasserman, Washington, D. C., was on the brief, for appellant.
Mr. John W. Kern, III, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joseph M. Ryan, Jr., Asst. U. S. Attys., were on the brief, for appellee. Mr. Leo A. Rover, U. S. Atty., at the time record was filed, also entered an appearance for appellee.
Before WASHINGTON, DANAHER and BASTIAN, Circuit Judges.
DANAHER, Circuit Judge.
Appellant has appealed from an adverse judgment in an action seeking declaratory relief from an order of deportation.
Appellаnt, a native of Russia, became a naturalized citizen of Canada, where, admittedly, he was a member of the Communist Party of Canada from 1929 to July, 1932. He was admitted to the United States for permanent residence in April, 1941. Later, after a visit to Canada, he was readmitted to the United States in December, 1945, upon presentation of a Resident Alien‘s Border Crossing Identification Card. Deportation proceedings were commenced against him in February, 1947, followed by hearings which culminated in a final order of deportation in August, 1951. The Board of Immigration Appeals reviewed and affirmed the Assistant Commissioner‘s order, and after rehearing, having found Klig possessed of good moral character over the past five years, on June 12, 1953, granted voluntary departure. Appellant argues that he was legally admitted to the United States in 1941 and again in 1945; that an alien so admitted is not presently deportable under Section 22 of the
The Board of Immigration Appeals summarized its understanding of appellant‘s position thus:
“* * * In other words, the argument is that, under the Amendment made by the Internal Security Act, a person who was a member of the Communist Party of Canada and whose membership had terminated prior to his application for admission to this country can be excluded, but that the same person, if he succeeds in illegally entering the United States, is immune to deportation under Section 4(a).”
The Court held3 that the Act did not provide for the deportation of an alien, who, after entry, became but later and before his arrest, relinquished his status as, a member of an organization, membership in which at the time of entry would have rendered him excludable. “If Congress meant that past membership, of no matter how short duration or how far in the past, was to be a cause of present deportation the purpose could have been clearly stated. The section does not bear this import.”
Congress, thereupon, in Sec. 23 of the
“That any alien who, at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States.” (Emphаsis supplied.)
Congress went farther. The 1918 Act “To exclude and expel” was further amended by the 1940 Act in that Section 2 was caused to read:
“Sec. 2. Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1 of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.” (Emphasis supplied.)
Congress flatly said that this Government will not receive certain classes of alien immigrants and will not harbor persons whom it does not want or whose presence is deemed hurtful to the United States. When the Court considered the cases of three persons whose past, but relinquished, membership in the Communist Party was relied upon as a ground for deportation, it observed that Congress had legislated with the Kessler language, supra, in mind. The 1940 amendment was found to be definitive and positive. “In the Act here before us [Congress] supplied unmistakable language that past violators of its prohibitions continued to be deportable in spite of resignation or expulsion from the party.”5 Mr. Justice Frankfurter, concurring, put it this way:
“But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens shall be allowed to stay, are for Congress exclusively to deter-
But, appellant argues, the classes of excludable aliens reached by thе 1918 Act did not include those who might be members of the Communist Party of Canada. The 1918 Act, so far as is here pertinent, had as its targets, aliens who are anarchists, aliens who advocate the overthrow by force and violence of the Government of the United States, those who entertain or teach disbelief in organized government, and otherwise as therein spelled out. It was not shown that membership in the Communist Party of Canada brought appellant within any such sweep, he claims, and thus his 1941 entry and the 1945 reentry were lawful. Hence Klig is not now deportable, he says. However, in addition to the meeting the time element, thus negating the effect of the Kessler v. Strecker rule (supra note 3), Congress removed the need for proof on a case by case basis, which Klig‘s argument fails to take into account.
“The
The Act thus expanded earlier law and prescribed that aliens who at any time “shall have been” members of any of the defined classes are to be excluded and deported. Specifically embraced within such classes were aliens who in the past had been members of “the Communist or other totalitarian party * * * of any foreign state * * *” Certainly that language included past membership in the Communist Party of Canada.8
Not only did Congress thus dispense with the necessity of proof in each individual case, as Mr. Justice Frankfurter noted, Section 22 of the Internal Security Act of 1950, amending the Act of 1918, provided a very real distinction between the groups of aliens mentioned in Section 1(1) and (3) and those aliens reached by Section 1(2). The
“(2) Aliens who, at any time * * * shall have been members of any of the following classes:
* * * * *
“(C) Aliens who аre members of or affiliated with * * * (iv) the Communist or other totalitarian party * * * of any foreign state * * *.
* * * * *
“Sec. 4(a) Any alien who was at the time of entering the United States * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall * * * be * * * deported * * *. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.”
The sweep of the Act is vast. Whatever refinements in its impact may exist in some circumstances have no application here. As Mr. Justice Frankfurter observed:
“It must be concluded, therefore, that support, or even demonstrated knowledge, of the Communist Party‘s advocacy of violence was not intended to be a prerequisite to deportation. It is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will. A fair reading of the legislation requires that this scope be given to what Congress enacted in 1950, however severe the consequences and whatever view one may have of the wisdom of the means which Congress employed to meet its dеsired end.”10
To recapitulate: under the 1940 Act, amending the 1918 Act, Klig was excludable because he had been a member of the proscribed class and on that account was deportable upon a showing that the party to which he had belonged, in fact advocated the violent overthrow of the Government. Under the 1950
Appellant has placed substantial reliance upon Berrebi v. Crossman.12 Citing no authority, the opinion seems to have overlooked the purpose of Congress, so clearly stated, with reference to the 1940 amendments, supra, which afforded the background for and contained the counterpart language followed and expanded in the 1950 Act, supra. Of course, too, the court lacked the benefit of the later discussion in Galvan v. Press, supra, which contained no reference to Berrebi. Nor has this case been cited in any other opinion coming to our notice. We are persuaded that appellаnt‘s reliance on Berrebi is misplaced, and we are cited to no authority contrary to the views we have expressed.
The status of Klig is not affected by the
Affirmed.
WASHINGTON, Circuit Judge, (dissenting).
This case presents a narrow problem of statutory construction: whether a resident alien who was a member of the Communist Party of Canada prior to his entry into the United States and at no time thereafter, is deportable under Section 22 of the Internаl Security Act of 1950. The issue is not whether membership in the Communist Party after entry but prior to the passage of the Act is ground for deportation under the above section; plainly it is. Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737. The issue is not whether appellant Klig would be excludable if he applied for entry today; plainly he would be.
Klig last entered this country in 1945. From 1929 to 1932 he had been a member of the Communist Party of Canada. The pertinent exclusion statute in effect in 1945 was the
Under present law, an alien is deportable if he “at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.”
“[Sec. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
* * * * * *
“(2) Aliens who, at any time, shall be or shall have been members of any one of the following classes:
“(A) * * *
* * * * * *
“(C) Aliens who are members of * * * the Communist Party * * * of * * * any foreign state * * *.
* * * * * *
“(H) * * *.”
The question which divides us in this case is whether the reference in Section 4(a) to the “classes enumerated” in Section 1(2) of the exclusion statute incorporates only the classes enumerated in letters (A) through (H), or those classes plus the preliminary matter in (2) relating not to classes as such but to the time of membership in the classes enumerated. Under the first construction, which is mine, Section 4(a) would require the deportation of an alien who was “at the time of entering the United States, or has been at any time thereafter” a member of the Communist Party of any foreign state; this would not reach Klig. Under the other view, Section 4(a) would require the deportation of an alien who “at the time of entering the United States or at any time thereafter” was an alien “who, at any time, shall be or shall have been” a member of the class “who are members of the Communist Party” of any foreign state; the majority adopts this reading of the statute to deport Klig.
I think the first construction is very plainly the correct one. Section 4(a) refers to Section 1(2) only to incorporate “the classes of aliens enumerated” therein, and the classes of aliens are enumerated only in subsections (A) through (H), inclusive—not in the preamble which relates merely to time. Section 4(a) specifies its own time period for membership for purposes of deportation, whereas the preliminary matter of (2) states another time period for membership for purposes of exclusion. To read the exclusion time period as a nullification or amendment of the deportation time period is unjustified in the absence of plain language; here the language used clearly shows that no such implied repeal or amendment was intended. Our colleagues of the Fifth Circuit have already so concluded: Berrebi v. Crossman, 1953, 208 F.2d 498. And
The premise underlying the majority‘s view is that the “motif” of the deportation section must parallel the exclusion statute; since the exclusion statute reaches members of classes (2) (C) regardless of the time of their membership, the court concludes that the deportation section must or should have similar effect. But the premise is not supportable. If Congress had wanted to carry out the “motif” of the exclusion statute in the deportation statute, it could simply have said “all aliens who were excludable under Section 1 are deportable” or “all aliens who at any time shall be or shall have been members of the classes excludable under Section 1 are deportable.” But Congress did nоt so provide. The language it used cannot reasonably be construed to allow the exclusion time element to obliterate the deportation time element.
The Supreme Court has cautioned us in such matters not to “assume that Congress meant to trench on [an alien‘s] freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433; see also Barber v. Gonzales, 1954, 347 U.S. 637, 642, 643, 74 S.Ct. 822, 98 L.Ed. 1009. Surely, the interpretation of the statute adopted by the majority is exactly contrary to this admonition.
Not only does the statutory language itsеlf leave no room for doubt, but a review of congressional activity in the area demonstrates that Congress did not intend to deport persons like this appellant. In 1939 a proposed amendment to the
Did Congress change its mind in 1950, when it adopted the Internal Security Act? At one stage it evidently considered doing so.3 But later on—when the Conference Report was written on the final legislation, H.Rep. No. 3112, 80th Cong., 2d Sess. (1950), accompanying H.R. 9490—the Report said: “* * * in general, this provision [Section 4(a)] covers those classes of aliens who * * * are members of subversive organizations.” (Emphasis added.) And when Senator McCarran explained on thе Senate floor the effect of the 1950 changes in detail, he at no point suggested that membership before entry was being added as a new ground for deportation.4 The majority finds support (fn. 9) for its conclusion in a Senate report which was issued by a subcommittee in 1950 in connection with the studies leading to recodification of all immigration laws into the
“This class has been clarified to make it clear that aliens who are not excludable under the law existing at the time of entry because of past membership in the proscribed subversive classes are not to be deportable solely because of such past membership * * *.”6
It is not at all incongruous to say that membership prior to entry warrants exclusion but not deportation. For it is entirely reasonable for Congress to deny admission to former Communists, no matter how far distant their membership. But as to those already here for years, who may have demonstrated desirability as residents and have acquired familiеs and property here, different considerations enter. Congress has indicated that Communist Party membership will be considered grounds for deportation only if it occurred after entry, while the alien was enjoying United States residence. Of course, Congress may sometime say that membership before entry is a ground for deportation. But until it does so, I find no basis for holding that this alien is deportable. On the contrary, I think that Congress has specifically provided that he is not deportable.