Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280 (1955)

SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, v. UNITED STATES EX REL. ACCARDI.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 616. Argued April 22, 1955.—Decided May 23, 1955.

In a hearing granted pursuant to this Court’s judgment in 347 U. S. 260, Accardi sought to prove that denial of his application for suspension of deportation under § 19 (c) of the Immigration Act of 1917 was prejudged through issuance by the Attorney General of a confidential list of “unsavory characters,” including Accardi, and that, therefore, the Board of Immigration Appeals had not exercised its own discretion, as required by applicable regulations. After a full hearing, the District Court found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion,” and dismissed the writ of habeas corpus. Held: The judgment of the District Court is sustained. Pp. 281-284.

(a) This Court’s opinion in 347 U. S. 260 meant no more than that Accardi’s allegations sufficiently charged “dictation” by the Attorney General and that Accardi was entitled to a hearing on the question whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General. P. 282.

(b) The record fully supports the District Court’s conclusion that the Board’s decision represented the free and undictated decision of each member. Pp. 282-283.

(c) In the face of the evidence, speculation on the effect of subconscious psychological pressures provides insufficient justification for rejecting the District Court’s finding as “clearly erroneous.” P. 283.

219 F. 2d 77, reversed.

Marvin E. Frankel argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff,

Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.

Jack Wasserman argued the cause and filed a brief for respondent.

Mr. Justic e Clark delivered the opinion of the Court.

On the remand, the District Court, after a full hearing, found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion . . .” and again dismissed the writ. The Court of Appeals reversed, one judge dissenting, 219 F. 2d 77. The opinion of the court based its conclusion on the ground that the “Attorney General’s statements [had] unconsciously influence[d] the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi.” The chief judge, concurring in the result, thought that our prior opinion merely required Accardi to prove “that there was a list as alleged, that he was on it, and that this fact was known to the Board.” The dissenting judge, on the other hand, read our opinion as meaning “no more . . . than that [Accardi’s] allegations sufficiently charged ‘dictation’ by the Attorney General,” entitling Accardi to a hearing on the question of “whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General.” P. 90. He concluded that the finding of the trial judge was not clearly erroneous. We agree with the dissenting judge both as to the interpretation of our prior opinion and its application to the facts of this case.

Accardi emphasizes the trial court’s finding that the Board had notice of the program and of his inclusion therein. This “notice,” at most, was given only to the calendar clerk of the Board so that the hearing of certain cases might be expedited. The testimony that it was not furnished to members of the Board or the Chairman is undisputed.

Black, J., dissenting. 349 U. S.

We believe that Accardi has had the hearing required by our previous opinion and that he has failed to prove his case.

Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed.

Mr. Justice Harlan took no part in the consideration or decision of this case.

Mr. Justi ce Black, with whom Mr. Just ice Frank - furter joins, dissenting.

There is disagreement here as there was in the Court of Appeals as to precisely what was meant by our former opinion and holding in this case. Accardi v. Shaughnessy, 347 U. S. 260. This is not surprising in view of ambiguity of language at its best. The Court gives our former opinion a different and in some respects a narrower meaning than I would. I think the Court’s interpretation deprives Accardi of a right which I thought our first opinion guaranteed him as far as possible under existing law—an opportunity to have his rights determined by a tribunal which had not already made up its mind based on anonymous information. Consideration of this basic issue requires a more extensive reference to the record in this and the prior case than the Court has found it necessary to give. Accardi’s rights cannot be fairly determined on broad legal generalizations or by merely interpreting our former opinion. If that opinion means no more than the Court indicates then Accardi’s right to have suspension of his deportation determined without pre judgment by the Attorney General has never been passed on.

from Canada, intending to remain here permanently. But he had no immigration visa. Under the law this made him a deportable alien. Proceedings to deport him were begun in 1947. He married in 1949 and has one child. His wife and child depend on him for support. Because of his original illegal entry, Accardi was ordered deported.

The basis of this controversy is not the original order of deportation but is Accardi’s application for suspension of that order under § 19 (c) of the Immigration Act of 1917.1 That section provides that under certain circumstances the Attorney General “may” suspend deportation of an alien upon proof that he has had good moral character for the preceding five years. The Act does not require the Attorney General to hold hearings or make findings in suspension cases. But regulations properly promulgated by the Attorney General do provide for hearings, and as we held in the prior Accardi case those regulations have the effect of law. In other words, our holding was that the Attorney General can no more deny the suspension without hearings prescribed by the regulations than he could if such hearings had been prescribed by Congress itself. And as we explained in our prior opinion, the law through the regulations now provides for aliens like Accardi to obtain “decisions at three separate administrative levels below the Attorney General—hearing officer, Commissioner, and the Board of Immigration Appeals.” 347 U. S., at 266. The Board is appointed by the Attorney General and can be removed by him whenever he pleases.

The habeas corpus petition considered in this case and the prior one alleged that the deportation order and the order denying favorable discretionary relief were both null and void, violated due process and should be set

Black, J., dissenting. 349 U. S.

aside. The two chief grounds alleged were: (1) The decision to deny favorable discretionary relief to Accardi “was pre-judged by the Attorney General on October 2, 1952,” which was six months before the Board of Immigration Appeals finally acted on Accardi’s application for suspension; (2) The Attorney General had so widely publicized and circulated statements about his plan to deport Accardi that it was impossible for the Attorney General’s subordinates to grant fair consideration to Accardi’s application for suspension of deportation. An exhibit attached to the petition showed that the Attorney General on October 2, 1952, publicized that “the Justice Department hopes to strip citizenship rights from 100 foreign-born racketeers and deport them” and that Accardi was one of these alleged racketeers. Other exhibits showed that after the Board of Immigration Appeals decision against Accardi in April, 1953, it was announced by the Department of Justice that the Board’s action was taken “under the current denaturalization and deportation program of Attorney General Brownell against top racketeers and subversives.” The District Court in the original proceedings refused to permit Accardi to offer evidence to prove that the Attorney General had prejudged his case and that the circumstances were such that the Attorney General’s subordinates could not give a fair trial. The District Court then summarily dismissed the case and the Court of Appeals, one judge dissenting, affirmed. 206 F. 2d 897. It was that case we reversed in our prior opinion the meaning of which is now in controversy.

When the case reached us we said in part as follows:

preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General ‘planned to deport.’ And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the ‘Attorney General’s proscribed list of alien deportees.’ To be sure, the petition does not allege that the ‘Attorney General ordered the Board to deny discretionary relief to the listed aliens.’ It would be naive to expect such a heavy-handed way of doing things.” 347 U. S., at 267.

Pointing out that “the allegations are quite sufficient” we went on to say that

“If petitioner can prove the allegation, he should receive a new hearing before the Board without the burden of previous proscription by the list. After the recall or cancellation of the list, the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right. Of course, he may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.” Id., at 268.

I think that petitioner proved beyond all peradventure that the Attorney General did “prejudge” Accardi’s case as alleged. Under our former opinion this was enough to justify relief. But this crucial question was not passed on at all by the District Court in this case. It went on the theory that we held that petitioner was entitled to relief only if he could establish that the Board of Immigration Appeals felt itself “dictated to” by the Attorney General so that it could not give a recommendation based on its own discretion. In my view this was an unwar-

Black, J., dissenting. 349 U. S.

ranted narrowing of the issues raised. But the Court today seems to accept this as the full scope of our prior holding. Given that narrow scope, our holding fell far short of deciding the issues which were actually presented and were due to be decided if, as we said, Accardi was entitled to “a fair hearing, which is nothing more than what the regulation accords petitioner as a right.”

tration with John Edgar Hoover. I asked him to prepare for me, after combing his records, names of persons who were engaged in subversive activities and subject to deportation, . . . racketeers and undesirables who were here in the country and subject to deportation . . . .” To carry out his program the Attorney General required a “progress report” to be submitted to him every day concerning the activities of the previous day. Accardi, he said, had been defined by him as a racketeer because of information received from the FBI, and that was the reason he “moved to deport him.” The record shows that Attorney General Brownell continued to carry out the particular deportation program Attorney General McGranery had begun. On April 3, the day the Board of Immigration Appeals decided against Accardi, Attorney General Brownell issued a press release announcing that “Accardi, known as a New Jersey racketeer, is a native of Sicily, Italy, and brother of Samuel Accardi against whom denaturalization proceedings are pending in the Federal court at Newark.” Later the Attorney General in a speech referred to Accardi as an “undesirable,” and an Assistant Attorney General in a speech listed Accardi among a number of so-called “nationally known hoodlums who are the objects of the program.”

It is significant that on the very day Attorney General Brownell referred to Accardi as a “racketeer,” the Board of Immigration Appeals found as a fact from evidence that he was “considered a person of good moral character.” Moreover, there was no evidence before the Board to show that Accardi was or ever had been a “racketeer.” The record therefore establishes that the Attorney General not only prejudged Accardi’s case against him but evidently did so on the basis of anonymous information that he was a racketeer. It may be as Judge Frank suggested that in so characterizing Accardi the Attorney General confused him with someone else. However this

Black, J., dissenting. 349 U.S.

may be, the record leaves no doubt that the Attorney General’s office decided to deport Accardi on the ground that he was a “racketeer” and that this characterization was continued by the Attorney General long after the Board had refused to suspend Accardi’s deportation although finding that he had a good moral character. The Attorney General’s pre judgment deprived Accardi of the benefit of the Attorney General’s discretion fairly exercised after a hearing as the law prescribes. For this reason the case should be affirmed.

There are also other reasons why I think this judgment should be affirmed and the case sent back to the Board of Immigration Appeals to carry out the directions of the Court of Appeals. Whatever this Court’s prior opinion may have meant, the case should not go off on the District Court’s finding of fact that the Board of Immigration Appeals actually exercised its own untrammeled discretion despite what the Attorney General said or did. That finding rests almost entirely on testimony given by the Board members themselves denying that they were influenced by the Attorney General’s planned program to deport certain named aliens. I deem it bad practice to subject administrative officers, acting in a quasi-judicial capacity, to a probe of the mental processes which led them to decide as they did. That is what the Court sanctions here. We have already decided that this practice is no more desirable than that of probing the minds of judges to try to fathom the reasons which prompt their decisions. United States v. Morgan, 313 U. S. 409, 421-422.

an assistant, which appear in the record, proclaim a strong desire and purpose to carry out a program under which Accardi and a large group of others named from time to time were to be stripped of citizenship and deported from this country. The District Court found that notice of this program was given to the Board. This Court, however, distinguishes between information given to the Secretary of the Board and to the Board itself. But a program of this kind, so well-publicized that it went to every part of the United States and to various political gatherings, could hardly be expected not to permeate the Board of Immigration Appeals working in the Department of Justice in Washington. Orders and proclamations of the Attorney General, head of that Department, cannot be thought to have so little influence or effect in his Department. It is true that the statements and program of the Attorney General are now referred to as intended to do no more than “expedite” action by the Attorney General’s subordinates, including the Board of Immigration Appeals. But this program according to the evidence occupied the most prominent place in the Department’s activities. Daily reports had to be made to the Department by those men who carried on the program. They were selected because of their outstanding ability and aggressiveness. So what we have is not merely a finding by the District Court that the Attorney General’s program was sent to the Board. We have in addition a showing of departmental emphasis on that program which makes it impossible to believe that the subordinates were oblivious to the Attorney General’s great interest in deporting the particular men whose names appeared on his “proscribed list” or “program” or “statistical data” as it was variously termed by government witnesses. The requirement for fair administration of justice is not satisfied by a mere finding based on Board members’ testimony that this particular Board at this particular time was strong enough

Black, J., dissenting. 349 U. S.

to resist the plain implications of the Attorney General’s strong program for deportation.

The inevitability of what was to happen to Accardi after his name was put on the “Attorney General’s proscribed list of alien deportees” is rather strongly indicated by the fact that not one of these aliens has ever been granted final discretionary relief allowing him to remain in this country. In an effort to show that aliens on the list are not barred from discretionary relief, the Government refers to four specific cases. In two of those cases, however, the aliens were not deportable under existing law and thus the Board did not reach the question of discretionary relief. In the third case the alien was allowed to leave voluntarily instead of being forcibly deported as he otherwise would have been. In the fourth case the Board did actually recommend that deportation be suspended. But that is not the full picture. The hearing officer who had recommended the alien’s immediate deportation was investigated after the Board’s recommendation of suspension. The Department of Justice concluded that he had been derelict in not fully developing “important derogatory information” concerning the alien and announced that he had been relieved of duty and that disciplinary action would be taken against him.2 At the instance of the Department, as the Government’s brief points out, the Board granted a rehearing on the alien’s right to suspension which appears to be still pending. Thus the Attorney General cannot point to a single case in which one of the proscribed aliens has been finally granted a discretionary suspension.

that fair consideration which the law requires. The use of administrative bodies as agencies of justice under law is seriously weakened by proceedings such as these. We should adhere to the spirit of our first opinion and require that the Board hold a fair hearing in Accardi’s case after “the recall or cancellation” of this “list” as the Court of Appeals ordered.3 The implications of the Attorney General’s program and statements must be repudiated before this Board can be considered the kind of free and impartial tribunal which our system of justice demands.

BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA et al.

Reargued on the question of relief April 11-14, 1955—Opinion and judgments announced May 31, 1955.

1. Racial discrimination in public education is unconstitutional, 347

U. S. 483, 497, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle. P. 298.

2. The judgments below (except that in the Delaware case) are reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondiscriminatory basis with all deliberate speed. P. 301.

(a) School authorities have the primary responsibility for elucidating, assessing and solving the varied local school problems which may require solution in fully implementing the governing constitutional principles. P. 299.

(b) Courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. P. 299.

(c) Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. P. 299.

(d) In fashioning and effectuating the decrees, the courts will be guided by equitable principles—characterized by a practical flexibility in shaping remedies and a facility for adjusting and reconciling public and private needs. P. 300.

294 Syllabus.

(e) At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. P. 300.

(f) Courts of equity may properly take into account the public interest in the elimination in a systematic and effective manner of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles enunciated in 347 U. S. 483, 497; but the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. P. 300.

(g) While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with the ruling of this Court. P. 300.

(h) Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. P. 300.

(i) The burden rests on the defendants to establish that additional time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. P. 300.

(j) The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. Pp. 300-301.

(k) The courts will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. P. 301.

(1) During the period of transition, the courts will retain jurisdiction of these cases. P. 301.

3. The judgment in the Delaware case, ordering the immediate admission of the plaintiffs to schools previously attended only by white children, is affirmed on the basis of the principles stated by this Court in its opinion, 347 U. S. 483; but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in the light of this opinion. P. 301. 98 F. Supp. 797, 103 F. Supp. 920, 103 F. Supp. 337 and judgment in No. 4, reversed and remanded.

91 A. 2d 137, affirmed and remanded.

Counsel for Parties. 349 U.S.

Robert L. Carter argued the cause for appellants in No. 1. Spottswood W. Robinson, III, argued the causes for appellants in Nos. 2 and 3. George E. C. Hayes and James M. Nabrit, Jr. argued the cause for petitioners in No. 4. Louis L. Redding argued the cause for respondents in No. 5. Thurgood Marshall argued the causes for appellants in Nos. 1, 2 and 3, petitioners in No. 4 and respondents in No. 5.

On the briefs were Harold Boulware, Robert L. Carter, Jack Greenberg, Oliver W. Hill, Thurgood Marshall, Louis L. Redding, Spottswood W. Robinson, III, Charles S. Scott, William T. Coleman, Jr., Charles T. Duncan, George E. C. Hayes, Loren Miller, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Louis H. Pollak and Frank D. Reeves for appellants in Nos. 1, 2 and 3, and respondents in No: 5; and George E. C. Hayes, James M. Nabrit, Jr., George M. Johnson, Charles W. Quick, Herbert 0. Reid, Thurgood Marshall and Robert L. Carter for petitioners in No. 4.

Harold R. Fatzer, Attorney General of Kansas, argued the cause for appellees in No. 1. With him on the brief was Paul E. Wilson, Assistant Attorney General. Peter F. Caldwell filed a brief for the Board of Education of Topeka, Kansas, appellee.

S. E. Rogers and Robert McC. Figg, Jr. argued the cause and filed a brief for appellees in No. 2.

J. Lindsay Almond, Jr., Attorney General of Virginia, and Archibald G. Robertson argued the cause for appellees in No. 3. With them on the brief were Henry T. Wickham, Special Assistant to the Attorney General, T. Justin Moore, John W. Riely and T. Justin Moore, Jr.

Milton D. Korman argued the cause for respondents in No. 4. With him on the brief were Vernon E. West, Chester H. Gray and Lyman J. Umstead.

294 Counsel for Parties.

Joseph Donald Craven, Attorney General of Delaware, argued the cause for petitioners in No. 5. On the brief were H. Albert Young, then Attorney General, Clarence W. Taylor, Deputy Attorney General, and Andrew D. Christie, Special Deputy to the Attorney General.

In response to the Court’s invitation, 347 U. S. 483, 495-496, Solicitor General Sobeloff participated in the oral argument for the United States. With him on the brief were Attorney General Brownell, Assistant Attorney General Rankin, Philip Elman, Ralph S. Spritzer and Alan S. Rosenthal.

By invitation of the Court, 347 U. S. 483, 496, the following State officials presented their views orally as amici curiae: Thomas J. Gentry, Attorney General of Arkansas, with whom on the brief were James L. Sloan, Assistant Attorney General, and Richard B. McCulloch, Special Assistant Attorney General. Richard W. Ervin, Attorney General of Florida, and Ralph E. Odum, Assistant Attorney General, both of whom were also on a brief. C. Ferdinand Sybert, Attorney General of Maryland, with whom on the brief were Edward D. E. Rollins, then Attorney General, W. Giles Parker, Assistant Attorney General, and James H. Norris, Jr., Special Assistant Attorney General. I. Beverly Lake, Assistant Attorney General of North Carolina, with whom on the brief were Harry McMullan, Attorney General, and T. Wade Bruton, Ralph Moody and Claude L. Love, Assistant Attorneys General. Mac Q. Williamson, Attorney General of Oklahoma, who also filed a brief. John Ben Shepperd, Attorney General of Texas, and Burnell Waldrep, Assistant Attorney General, with whom on the brief were Billy E. Lee, J. A. Amis, Jr., L. P. Lollar, J. Fred Jones, John Davenport, John Reeves and Will Davis.

Phineas Indritz filed a brief for the American Veterans Committee, Inc., as amicus curiae.

Mr. Chief Justi ce Warren delivered the opinion of the Court.

These cases were decided on May 17, 1954. The opinions of that date,1 declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.2 In view of the nationwide importance of the decision, we invited the Attorney General of the United

States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.

Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.3

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies 4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.