Economou v. US Dept. of Agriculture, 535 F.2d688 (2d Cir. 1976).
Holding
Neither Barr v. Matteo, 360 U. S. 564, nor Spalding v. Vilas, 161 U. S. 483, supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if, in the course of enforcing the relevant statutes, they infringed respondent's constitutional rights, and even if the violation was knowing and deliberate.
1. This Court ought not to pass on the constitutionality of § 212 (a)(4), as applied to respondent, unless such adjudication is unavoidable; and there is a threshold question as to whether respondent's return to this country from his afternoon trip to Mexico in 1956 constituted an "entry" within the meaning of § 101 (a) (13) of the Immigration and Nationality Act of 1952, so as to subject him to deportation for a condition existing at that time but not at the time of his original admission before the 1952 Act became effective.
2. It would be inconsistent with the general ameliorative purpose of Congress in enacting § 101 (a) (13) to hold that an innocent, casual and brief excursion by a resident alien outside this country's borders was "intended" as a del,arture disruptive of his resident alien status so as to subject him to the consequences of an "entry" into the country on his return.
3. Because attention was not previously focused upon the application of § 101 (a) (13) to this case, and the record contains no detailed description or characterization of respondent's trip to Mexico in 1956, the judgment below is vacated and the case is remanded for further consideration of the application of that section in the light of this opinion.
1. The corporation is not an indispensable party to the suit.
2. The controversy is between two States, since the Arkansas is the real party in interest in the contract with the Texas corporation and the complaint alleges that Texas is unlawfully interfering with its performance.
1. The waiver standard set forth in Fed Rule Crim Proc 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review. Shotwell Mfg. Co. v. United States, 371 U. S. 341, followed; Kaufman v. United States, 394 U. S. 217, distinguished.
2. The District Court, in the light of the record in this case, did not abuse its discretion in denying petitioner relief from the application of the waiver provision.
