(concurring).
I concur in the affirmance of the judgment. I arrive at the same result by a somewhat different route.
The complaint considered in Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, was filed before the 1952 Act was passed, and the authority of the trial court to entertain it would normally be judged by the law in effect when the complaint was filed. The Supreme Court was not called upon to observe, either in passing, or otherwise, that a new action, instituted after the effective date of the 1952 Act, might or might not have a better standing.1 Because the complaint there in question was filed prior to the 1952 Act, the issue as to the operation of the new Act was not only not litigated but it was not an issue that might have been litigated. The decision, I think, was not res judicata.
To my mind, therefore, the controlling question is whether the 1952 Act did, as appellant asserts, have the retroactive effect of permitting a new action, such as this one, for the purpose of reviewing deportation orders made prior to the 1952 Act. As the opinion of the majority observes, Rubinstein v. Brownell, 92 U.S. App.D.C. 328, 206 F.2d 449, is no help on that point, for the order there involved was made after the effective date of the 1952 Act. Even if we were to grant, as there held, that the 1952 Act created a new remedy, I am convinced it cannot be said to have the retroactive effect here claimed for it. A primary reason given for the District of Columbia court’s conclusion that the remedy for review of such orders there sustained was provided in the 1952 Act, was the use in § 242(b) (4), Title 8, U.S.C.A. § 1252(b)(4), of the words: “no decision of deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” To my mind, this language can refer only to future, and not to past orders.
Another persuasive reason for concluding that the 1952 Act was not intended to apply, even procedure-wise, to earlier orders, is found in the strong language of the savings clause, § 405(a) of the Act, (see 8 U.S.C.A. § 1101 note), which was quoted in this court’s decision in Yanish *410v. Barber, 9 Cir., 211 F.2d 467, at page 470.2
Since I am of the view that any new procedure which may have been authorized by the 1952 Act was not intended to apply to the order here in question, I agree that the decision of the district court must be affirmed.
. That the decision of the Supreme Court was thus confined to the status of the former complaint would seem to be espeeially clear in view of the language of the savings clause in § 405 of the 1952 Act: “Nothing contained in this Act * * * shall be construed * * * to affect any prosecution, suit, action, or proceedings, civil or criminal, brought * * * at the time this Act shall take effect * *
. I agree with the majority that the whole tone of the Supreme Court’s opinion in* Heikkila v. Barber, supra, indicates that the court did not conceive it being possible that the 1952 Act retroactively extended a new remedy to the order here involved. I have explained above, however, why I think that issue was neither decided nor open to decision in that case. The court affirmed the action of the district court. Had the district court sustained the action, so that it was necessary that its judgment be reversed, as in Missouri Pacific Ry. v. United States, 189 U.S. 274, 23 S.Ct. 507, 47 L.Ed. 811, the failure also to remand for further proceedings under the new act, might call for a different conclusion as to the effect of the decision.