250 F.2d 35 - Mellos v. Brownell — 250 F.2d 35

How this case has been cited

Cited by 10 later decisions — most recently March 2019

3 federal appellate · 3 district · 1 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1United States Court oí Appeals District of Columbia Circuit.

¶2Mr. Ernest M. Shalowitz, Washington, D. C., with whom Messrs. Louis E. Spiegler and Sol M. Alpher, Washington, D. C., were on the brief, for appellants.

¶3Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Thomas McGrail, Asst. U. S. Attys., were on the brief, for appellee Brownell.

¶4Messrs. Arthur C. Bailey, Bernard J. Gallagher and J. Roy Thompson, Jr., Washington, D. C., entered appearance for appellee National Surety Corp.

¶5Before Edgerton, Chief Judge, and Prettyman and Bastían, Circuit Judges.

¶6PER CURIAM.

¶7Appellants are aliens, who last entered the United States as temporary visitors on November 6, 1948. Thereafter, through the National Surety Company, they executed departure bonds conditioned upon their departure at the expiration of their temporary visit in the United States. The obligee in the bonds was the United States of America. Extension of this temporary stay was granted until October 19, 1950.

¶8On July 13, 1951, the Immigration and Naturalization Service declared the bonds breached by appellants due to their failure to depart the United States by October 19, 1950.

¶9By a private bill enacted into law May 21, 1952, appellants were granted permanent residence as of the date of the enactment of the Act.1

¶10Appellee Attorney General, through the Immigration and Naturalization Service, demanded payment in full of the bonds by the surety. Whereupon, appellants filed this proceeding for declara*36tory judgment decreeing that the departure bonds have not been breached. Upon trial, the District Court ordered the complaint dismissed on its merits. This appeal followed.

¶11We are met, at the threshold of this appeal, with a point not raised in the District Court or by counsel here, namely, whether the complaint should be dismissed as a suit against the United States to which it has not consented. This is the sort of jurisdictional question which may be raised at any time, either by the parties or by the court sua sponte.

¶12 Adler v. Brownell, 1957, 100 U.S.App.D.C. 55, 242 F.2d 28, makes it clear that the suit here “is in effect one against the United States to which it has neither been made a party nor consented.” Judgment against appellants will be vacated and the case remanded for dismissal of the complaint for lack of jurisdiction. It is so ordered.

¶13Judgment vacated and case remanded.