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. 

Notes