United States Johnson v. Shaughnessy/Dissent Reed
Mr. Justice REED, with whom THE CHIEF JUSTICE and Mr. Mr. Justice BURTON join, dissenting.
This Court affirms the decision that a proper medical finding of a physical defect which excludes an alien from entrance into the United States is final and not subject to further inquiry. With the Court's ruling on this point, I agree.
(1) The reversal of the dismissal of the writ of habeas corpus is founded on the Court's premise that the report of the reviewing board of medical officers 'shows that the appellate board based its conclusion on two considerations: (1) the initial certificate of the two public health doctors; (2) testimony given by Dr. Carlton Simon (a psychiatrist chosen by the alien).' The Court then concludes that 'the appellate board could not rest its finding that petitioner was a mental defective on the original certificate without denying petitioner the independent review and re-examination which Congress and the Surgeon General had prescribed.' That is to say, the report, as the Court phrases it, 'makes clear that the appeal board made no such medical examination as was required by the regulations.'  My reading of the opinion is that the Court thinks the record affirmatively shows a failure to comply with the statute and regulation § 34.13(g) and (h) as to findings and examination. 
There is a suggestion that a medical appeal board must certify that the alien had been examined.  I assume, however, that if the Court intended to require specific certification by the medical board of the steps leading to its findings and conclusions it would have made such a holding definitive.
I disagree with the Court's interpretation of the report. A strong presumption exists that public officials perform their duty. If the report had added the phrase, 'in accordance with the regulations,' after the word 'considered,' there could be no doubt as to the sufficiency of the report. The presumption of regularity until rebutted requires courts to adopt such an interpretation.  The statement of the board of medical officers that it 'has considered the appeal' means to me that the board has proceeded conformably to the statute and regulations.
(2) There is a graver error in the Court's holding, however, which may interfere with sound administrative procedure. Although petitioner was represented by counsel, no objection to the form of the report was made during the administrative process. This case heretofore has centered around the issue of finality disposed of by the Court. Even in the several hearings of her effort to get relief by habeas corpus, petitioner has never asserted, in this or any other court, that she was not examined by the physicians of the medical review board. This is made plain by the Court's statement of the generalized objections on other grounds to the report of the medical review board, see opinion at note 2, and from the affidavits and objections appearing in the record. The dissenting judge, 170 F.2d 1009, did not refer to the failure to examine petitioner. He spoke only of the failure of the Board of Special Inquiry and the medical board to req ire adequate and revealing certificates and reports. Even the petition for certiorari does not present the question. The brief does not discuss it.
The administrative remedy must be exhausted by fair effort to correct administrative errors before resort to habeas corpus or other judicial remedies.  To permit occasional reversal of administrative orders on points not brought to the attention of the agency hampers administrative routine and, if adopted as a rule of law, would disorganize administrative procedure. Afterthought cannot take the place of required objection. This is not a case where rules of practice and procedure defeat the ends of justice.  There is nothing in this record to indicate that disabilities of petitioner, or difficulties of procedure or practice, the emergence of a new rule of law or any other change of circumstance has affected the course of petitioner's pleas. She has had advantage of every method of relief known to the law but has not seen fit to bring forward the ground upon which this Court reverses.
It is obvious that had objection been made to the form of the report of the Board of Medical Officers at the hearing before the Board of Special Inquiry, April 6, 1948, a prompt elaboration of the report could have been obtained or, if no examination such as is required by the regulations had already been made, it could have been done promptly. Proper administrative procedure requires that objection to certificates be made at the earliest opportunity which in this case was during the administrative hearing before the Board of Special Inquiry. A litigant's unexplained failure to raise an issue does not justify capricious judicial intervention on behalf of an individual.
I would affirm the judgment below.
^1 The report reads as follows: 'Pursuant to the request of the District Director of Immigration and the order of the Medical Officer in Charge, the following Board of Medical Officers of the U.S. Public Health Service, has considered the appeal regarding subject-named alien May Gunborg Johnson and after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.'
'Sec. 16. The physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health Service who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical officers in any such alien; * * * Any alien certified for insanity or mental defect may appeal to the board of medical officers of the United States Public Health Service, which shall be convened by the Surgeon General of the United States Public Health Service, and said alien may introduce before such board one expert medical witness at his own cost and expense. * * *'
42 C.F.R., 1947 Supp., § 34.13.
'Re-examination; convening of boards; expert witnesses; reports. (a) The Surgeon General, or when authorized, a medical officer in charge, shall convene a board of medical officers to re-examine an alien
'(2) Upon an appeal by the alien from a certificate of insanity or mental defect, issued at a port of entry.
'(c) Re-examination shall include:
'(1) A medical examination by the board;
'(2) A review of all records submitted;
'(3) Use of any laboratory or diagnostic methods or tests deemed advisable; and
'(4) Consideration of statements regarding the alien's physical or mental condition made by a reputable physician after his examination of the alien.
'(g) The findings and conclusions of the board shall be based on its medical examination of the alien and on the evidence presented to it and made a part of the record of its proceedings.
'(h) The board shall report its findings and conclusions to the Immigration Service, and shall also give prompt notice thereof to the alien if the re-examination has been held upon his appeal. The board's report to the Immigration Service shall specifically affirm, modify, or reject the findings and conclusions of prior examining medical officers.'
It will be noted that the evidence presented to the board was made a part of the report to the Board of Special Inquiry as required by the regulation.
^3 'It hardly seems necessary to add that the statement of the appellate board that it had 'considered the appeal,' cannot be treated as a certification that petitioner had been given an independent medical examination.'
^4 Lewis v. United States, 279 U.S. 63, 73, 49 S.Ct. 257, 260, 73 L.Ed. 615: 'It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.'
R. H. Stearns Co. of Boston, Mass., v. United States, 291 U.S. 54, 63, 54 S.Ct. 325, 328, 329, 78 L.Ed. 647, and authorities cited; United States v. Chemical Foundation, 272 U.S. 1, 14; 47 S.Ct. 1, 6, 71 L.Ed. 131.
^5 We refused to review an issue not raised before an administrative body in Unemployment Compensation Commission of Territory of Alaska v. Aragan, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136: 'A reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.' Tri-State Broadcasting Co. v. Federal Communications Commission, 71 App.D.C. 157, 107 F.2d 956, 958. Cf. Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 51, note 9, 58 S.Ct. 459, 463, 464, 82 L.Ed. 638; Blair v. Oesterlein Mach. Co., 275 U.S. 220, 48 S.Ct. 87, 72 L.Ed. 249.
The Administrative Procedure Act contemplates presentation before the administrative agency of every issue that may be made the subject of judicial review by habeas corpus or appellate process. 60 Stat. 237, § 7(c), 8(b)(2), 10(b), (c) and (e), 5 U.S.C.A. §§ 1006(c), 1007(b)(2), 1009(b, c, e). The rule against raising questions on judicial review that were not raised in administrative proceedings has general application, see Caldarone v. Zoning Board of Review of City of Warwick, R.I., 60 A.2d 158, 159; Reisberg v. Board of Standards and Appeals of New York City, Sup., 81 N.Y.S.2d 511, 513; General Transp. Co. v. United States, D.C., 65 F.Supp. 981, 984.