Reply Brief — Garcia-Jaramillo v. Immigration & Naturalization Service

IN THE SUPREME COURT OF

THE UNITED STATES

NO. 79-1804

RODOLFO GARCIA-JARAMILLO,

Petitioner,

VS.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITON FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

ANSWER TO MEMORANDUM FOR THE

RESPONDENT IN OPPOSITION

FREDERICK HETTER

Member of the Bar

U.S. Supreme Court

2220 Fifth Avenue

San Diego, CA 92101

(714) 239-8185

Attorney for Petitioner

J. GALLAGHER — Printed Briefs (714) 835-6522

INDEX

Page

oo ee ee rere re oer rr re rere rr es 1

PE 04 nen 6a 60 6K KMAN EA MARSA NEE SIP OPM ENRU EON ONSEN 3

PO TOPO CULT TE LOE Cee ee Te 7

Pe I 0 5 GU cee bran as hee eee aba 8

TABLE OF AUTHORITIES

Cases Page

BOWMAN v. LOPERENA, et al.,

ee Ry en ne 3

CONTINENTAL OIL CO. v. UNITED STATES

ED bo SK 5A e tN eye vaaenseaea ad ond beedacdaes 7

DEPARTMENT OF BANKING v. PINK

oe ey aT

LEISHMAN v. ASSOCIATED ELECTRIC CO.

fe PPT ET Te eT PET TU TeT ET TOT eee EE Ee 5

ZIMMERMAN v. UNITED STATES

ee scree te i ek de 6

Code Page

PM I os ad gh ue've¥ cee vce csuccensscsxculaanes 5

Rules, Supreme Court Page

PoP Nand SktS nck UN d de awddekadeduesexddocact i

NEA Atk bein beKVES Kou auawedecdencvesexdccsensl 2

I ih 6 buck dnick bo0sh ae cdleuiskekckieeunes 1,2

Text | Page

R. STERN and G.GRESSMAN, SUPREME COURT PRACTICE

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ii

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

NO. 79-1804

RODOLFO GARCIA-JARAMILLO,

Petitioner

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORAR' TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

ANSWER TO MEMORANDUM FOR THE

RESPONDENT IN OPPOSITION

1. Respondent filed its Memorandum in Opposition

on May 30, 1980, which was received by petitioner on June

3, 1980.

2. Petitioner is filing the foregoing “Answer to the

Memorandum for the Respondent in Opposition” pursuant

to Section 5, Rule 24, Rules of the Supreme Court, adopted

June 15, 1970.

3. Attention of this Court is respectfully invited to

Section 1, Rule 24, Rules of the Supreme Court: the first

pleading which the Respondent is entitled to file is a Brief

in Opposition which should be filed within fifty days of

receipt of the Petition for Certiorari.

4. The designation made by the Solicitor General was

‘Memorandum For the Respondent in Opposition.” It is

very clear that said memorandum was not filed pursuant

to Section 1, Rule 24, supra. It is not a brief. It is simply a

memorandum of points and authorities.

5. Attention of this Court is likewise invited to Section

2, Rule 24, Rules of the Supreme Court, quoted for ready

reference:

“No motion by a respondent to dismiss a petition for

writ of certiorari will be received. Objection to the

jurisdiction of the court to grant writs of certiorari

may be included in briefs in opposition to petition

therefor.”

6. The “Memorandum for the Respondent in Opposi-

tion” cannot be considered as a supplemental brief, filed

pursuant to Section 5, Rule 24, because there was no brief

in opposition to be supplemented.

7. Itcannot be considered as a motion because there is

no prayer. Assuming it is a motion for the “sake of

argument” it is nonetheless disallowed by Section 2, Rule

24, cited above.

8. Since the memorandum filed by the Respondent is

not authorized by the Rules of this Court, the same should

be stricken from the record.

ARGUMENT

1. Although the memorandum of the Respondent

failed to state its object, itis impliedly asking this Court to

dismiss the petition.

2. Respondent cited Department of Banking v. Pink,

317 U.S. 264 (1942), and R. Stern and E. Gressman,

Supreme Court Practice, 395-403 (5th Ed. 1978) as its

authority.

3. In Department of Banking v. Pink, supra, the

issue was: Did the motion to amend its remittitur toll the

running of the three month period to file certiorari? The

answer from this Court is: No. The case of Department of

Banking, supra, is readily distinguishable with the

present case in that: In Department of Banking, supra,

the motion sought to amend the order of remittitur; it

added statements to the effect that the federal question

had been presented and passed upon by the court. In the

case at bar, the motion of the petitioner, in which

petitioner claimed to have tolled the running of the three

month period, was a motion to adduce additional evidence,

which purported to show alleged coercion.

4. Petitioner feels his contention is supported in the

case Bowman v. Loperena, et al., 311 U.S. 262 (1940)

This case was cited on page 399, R. Stern and G.

Gressman, Supreme Court Practice (5th Ed. 1978),

which the Respondent cited in its memorandum.

5. In Bowman, supra, the District Court issued and

order of adjudication on August 21, 1936. Petitioner filed

a petition for rehearing of an order of adjudication on

September 10, 1936. Petitioner filed again a second

petition for rehearing on November 15, 1937. On February

17, 1938, the petition for rehearing was denied. Petitioner

appealed to the Court of Appeals for the Ninth Circuit on

March 18, 1938. Petitioner specifically appealed the order

of adjudication of August 21, 1936. The Court of Appeals

for the Ninth Circuit dismissed the appeal because:

although the appeal was taken within thirty days from the

order denying the petition for rehearing, it came too late,

because the adjudication was entered, August 21, 1936;

the thirty days expired on that date. Petitioner filed a

certiorari before this Court on the issue of: whether the

filing of the petition for rehearing tolled the running of the

thirty day period. |

6. This Court has stated in Bowman, supra, page 266:

“Treating the petition of September 10, 1936, and

the motion of October 14, 1936, as petitions for

rehearing of the order of adjudication, and the

petition of November 15, 1937, as a second petition

for rehearing filed out of time, the endorsement upon

the latter by the judge of the court, and the hearing

held and opinion announced upon it, show that it was

entertained by the court and dealt with upon its

merits. Until the order of February 17, 1938, no final

decision was rendered sustaining the adjudication as

against the debtor’s attack.

These circumstances enlarged the time for taking

appeal from the order of adjudication. The filing of an

untimely petition for rehearing which is not enter-

tained or considered on its merits, or a motion for

leave to file such a petition out of time, if not acted on

or if denied by the trial court, cannot operate to

extend the time for appeal. But where the court allows

the filing and, after considering the merits, denies the

petition, the judgment of the court as originally

entered does not become final until such denial, and

the time for appeal runs from the date thereof.

We hold that the court below should have entered

the appeal.

The judgment is reversed and the cause is remanded

to the Circuit Court of Appeals for further proceed-

ings in conformity to this opinion.”

7. Petitioner contends that the filing of “Petition

Pursuant to 28 U.S.C. 2347 (c) for Leave of Order

Directing Respondent to Receive Petitioner’s Additional

Evidence” to the Court of Appeals on January 14, 1980,

can be considered as filing a second motion for rehearing,

as mentioned in Bowman, supra. The fact that the Court

of Appeals accepted and denied it constitiuted enlarge-

ment of the period to file certiorari to this Court. Petition-

er contends that the ninety day period should start on

February 13, 1980, when said petition was denied as per

the Bowman holding.

8. Petitioner feels that his contention is shared by this

Court in the case of Leishman v. Associated Electric

Co., 318 U.S. 203. The issue presented before this Court

was: whether petitioner appealed to the Circuit Court of

Appeals for the Ninth Circuit within the time provided by

law (28 U.S.C. 230).

9. This Court has stated Leishman, supra, page 205:

“In so holding that the court recognize the general

rule that where a petition for rehearing, a motion for a

new trial, or a motion to vacate, amend, or modify a

judgment is seasonably made and entertained, the

time for appeal does not begin to run until the

disposition of the motion. But this case was different-

iated on the ground that the instant motion was not

one to amend the judgment but merely one to amend

and supplement the findings and conclusions. 128 F.

2d 204. We granted the certiorari to settle the impor-

tant question of practice presented under the Rules

of Civil Procedure.

We think that petitioner’s time to appeal did not

begin to run until the disposition of his motion under

Rule 52 (b) on June 9, 1941, and accordingly that his

appeal was timely. The motion was not addressed to

mere matters of form but raised questions of sub-

stance since it sought reconsideration of certain basic

findings of fact and the alterations of the conclusions of

the court. In short the necessary effect was to ask that

rights already adjudicated be altered. Consequently

it deprived the judgment of that finality which is

essential to appealability. Cf. Zimmerman v. United

States, 298 U.S. 167; Department of Banking v.

Pink, 317 U.S. 264. It is immaterial that petitioner

did not specifically request the amendment of the

judgment, and the distinction based on this failure to

request by the court below is artificial and untenable.

If the motion had been granted and the requested

amendment and supplemental findings made, the

judgment would have to be amended or altered to

conform to those findings and the conclusions result-

ing from them. We conclude that a motion under Rule

52(b) such as the instant one which seeks to amend or

supplement the findings of fact in more than purely

formal or mechanical aspects tolls the appeals statute,

and that the time for taking an appeal runs from the

date of the order disposing of the motion. Cf. Con-

tinental Oil Co. v. United States, 299 U.S. 510.

The motion was not one for a new trial under Rule

59 and respondent’s argument, based on that premise,

that it was not filed in time, is not pertinent.”

10. Again, petitioner contends that the petition filed

by petitioner to the Court of Appeals on January 14, 1980,

tolled the running of the ninety day period per the

Leishman holding.

WHEREFORE, in view of all the arguments and

authorities cited, a Writ of Certiorari should be issued to

review the opinion and orders of the Ninth Circuit.

Respectfully submitted,

LAW OFFICES OF FREDERICK HETTER

BY: FREDERICK HETTER

Attorney for Petitioner

PROOF OF SERVICE

STATE OF CALIFORNIA )

SS.

COUNTY OF RIVERSIDE )

| am a citizen of the United States and a resident of the

County aforesaid; | am over the age of eighteen years and not

a party to the within entitled action; my business address is

612 N. Bush St., Santa Ana, California 92701.

On June 17, 1980 | served the within ANSWER TO

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

on the interested parties in said action, by placing a true copy

in each of 3 sealed envelopes with postage thereon fully

prepaid, in the United States mail at Santa Ana, California,

addressed as follows:

WADE McCREE MARGARET J. PERRY

Solicitor General of Attorney

The United States Department of Justice

Department of Justice Washington, D.C. 20530

Washington, D.C. 20530

JAMES J. O’KEEFE

DISTRICT DIRECTOR

Immigration and Naturalization Service

880 Front Street

San Diego, CA 92188

| certify under penalty of perjury that the foregoing is true

and correct.

EXECUTED on June 17, 1980 at Santa Ana, California.

Jack Gallagher