The opinion
HARLAN, Circuit Judge
(dissenting).
I am unable to agree with the result reached by my brethren in this ease. I read the majority opinion in the Supreme Court as holding that the issue on which the relator was entitled to a hearing before the Court was whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General. Mr. Justice CLARK said: “It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. * * * Rather, we object to the Board’s alleged failure to exercise its own discretion * * (Italics in original.) The language in the preceding paragraph of Justice CLARK’S opinion means no more, I think, than that the relator’s allegations sufficiently charged “dictation” by the Attorney General, and not that the acts alleged, if proved, necessarily resulted in dictation.
The relator has had his hearing on this issue and the trial Judge has found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion by the Attorney General or any of his assistants or anyone else acting or purporting to act for him.” That finding is supported by the sworn and unequivocal testimony of the Board members who sat on Accardi’s case — the Chairman testifying in person and the others by deposition — and I cannot regard the finding as “clearly erroneous.”' Nor can I agree with Judge CLARK who holds, as I understand his concurring opinion, that we may accept the finding but side-step its effect. Such a result can be achieved only by giving the Supreme Court’s opinion an interpretation which I do not think it will bear.
In my view, the dismissal of the writ should be sustained.