Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.
This case raises an interesting question concerning the right to judicial review under the Administrative Procedure Act,*fn1 hereinafter referred to as the Act.
The appellant, Trinler, is an alien who was admitted to the United States in 1942 as a "treaty merchant".*fn2 He was subsequently convicted for the violation of a Presidential war order, paid his fine and served the sentence imposed on him. Still later he has been made the unhappy subject of a deportation order issued by the Commissioner of Immigration and Naturalization, the person to whom the authority of the Attorney General to deport has been delegated.*fn3 This order was issued on the ground that he had failed to maintain his "treaty merchant" status. Claiming that the Act gave him a right to judicial review of this order, he filed in the District Court of the United States for the Eastern District of Pennsylvania a document labelled "Petition for Review". On motion of the respondent the petition was dismissed. 72 F.Supp. 193 (E.D.Pa.1947) noted in 96 U. of Pa.L.Rev. 268 (1947). He has appealed.
The first question raised is whether, assuming all other questions are answered in favor of the appellant, this case is ripe for review.It was suggested in the argument in this Court that the administrative process had not yet come to an end and until it had, review was premature. This point was evidently not made in the District Court and, indeed, was not taken seriously in the briefs submitted to us. But it was stressed in oral argument and has made us some difficulty.
We think this objection does not impose any substantial obstacle to review. The administrative process has come to an end. The statute says "the decision of the Attorney General shall be final."*fn4 That decision has been made by the Commissioner of Immigration and Naturalization, the duly delegated official, and this deportation order has been issued thereupon. It is true that Trinler has not been taken into custody and, obviously, has not been put on a ship for deportation, nor has the ship sailed. But these three things are no part of the administrative process. That ended when, intermediate proceedings provided for by the regulations issued by the Attorney General having been gone through with,*fn5 the order of deportation was issued. There is nothing more to do now than the purely ministerial act of taking the man into custody, putting him on a ship bound for the designated port.*fn6
No inconsistency between this view and that of the selective service cases is present. In fact they furnish a persuasive analogy here, as shown by the following language of Mr. Justice Douglas in Estep v. United States:*fn7 "Falbo v. United States, supra [320 U.S. 549, 64 S. Ct. 346, 88 L. Ed. 305], does not preclude such a defense in the present cases. In the Falbo case the defendant challenged the order of his local board before he had exhausted his administrative remedies. Here these registrants had pursued their administrative remedies to the end. All had been done which could be done. Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them."
To conclude that the administrative process has ceased with the issuance of the deportation order by the delegatee of the Attorney General does not, however, settle the question of whether Trinler has a right of judicial review or the nature of that right, if any he has.Attention has already been called to the language of the statute which says that the "decision of the Attorney General shall be final." Nevertheless, and in spite of such language, it is perfectly clear that it is not final in the sense that courts cannot do anything about it.*fn8 The petitioner points out, and the Government agrees, that the legality of deportation orders may be tested in habeas corpus proceedings.The Government also points out and the petitioner agrees, that such orders have been tested successfully only in such proceedings and subject to whatever limitations as there are inherent in such proceedings as to the scope of those questions which may be raised by habeas corpus.*fn9 Such review is not available to this petitioner because he has not yet been taken into custody.
We have, therefore, a situation where in spite of statutory language of finality for an administrative order there is judicial review of long standing, albeit of a limited nature. The new question presented in this litigation is whether that review has been enlarged by Section 10 of the Administrative Procedure Act. Paragraph (a) of Section 10 gives judicial review to "Any person * * * adversely affected * * * by such action."*fn10 We do not need to labor the point that petitioner is adversely affected by the deportation order. His difficulty comes, however, in the "excepting" clause with which Section 10 opens. That clause says "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion" the right of judicial review is given.*fn11
The Commissioner says that this case is an instance under the first exception because the basic statute*fn12 precludes judicial review and it precludes it in the already quoted phrase that the "decision of the Attorney General shall be final." Trinler says this phrase does not settle the question because in spite of that language courts have judicially reviewed deportation orders for many years through the habeas corpus proceedings. It is admitted, says Trinler, that at this particular stage of his deportation matter habeas corpus would not be available. Nevertheless, his argument runs, since there is a court created judicial review for deportation orders it cannot be said that the case is one where judicial review is precluded. Therefore, the argument continues, he has the right to review which Section 10 of the statute gives and the right accrues when the order is issued without his having to wait for the court created right of review by habeas corpus.
The Commissioner argues that such a result would upset long established administrative procedure in the handling of deportation cases. The petitioner argues that to permit a right of review upon the issuance of the deportation order instead of compelling a man to wait until arrested is ever so much fairer to him and prevents the hardship of his having to sacrifice his American possessions and be prepared to be taken out of the country if his habeas corpus proceedings fail. We can grant the truth of the foregoing statements by each side without being helped in the solution of our problem here. If the Act creates new rights for aliens by providing an earlier review of deportation orders, the Attorney General will have to modify his administrative practice. If it does not, the alien will have to continue to suffer whatever hardships that accompany his right to habeas corpus. The nub of the question seems to us to be whether these deportation proceedings are such as to fall within the first exception to Section 10 as a proceeding provided by a statute which "[precludes] judicial review".
Our conclusion is that the case does not fall within the exception. Therefore the judicial review provisions found in Section 10 of the Act are applicable. We are impressed by the fact that in spite of the basic statute's wording habeas corpus proceedings have always been available. Since they have been available the situation cannot be one where judicial review in the past has been precluded. In this we are supported, we think, by discussion found in the legislative history of the Act. In that discussion it was pointed out that statutes which preclude judicial review are unusual.*fn13 Congressman Walter pointed out to the House of Representatives that this clause was simply put in to provide for the unusual situation where judicial review of administrative action was actually precluded.*fn14
It may be granted that the area covered by Section 10 of the statute is not very wide. Counsel for petitioner has given us a long list of important statutes in which judicial review is expressly provided for. It may well be that the instances where it is expressly precluded are few. But whether the new law*fn15 made by Section 10 be wide or narrow, the instant case seems to us to be one which fits into it.
While it might look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus. The fact that review has been judge-made out of the concept of due process does not make it any less a qualification of the statute ...