239 F.2d 527 (2nd Cir. 1956), 63, Trop v. Dulles

Docket Nº:63, 24184.
Citation:239 F.2d 527
Party Name:Albert L. TROP, Plaintiff-Appellant, v. John Foster DULLES, as Secretary of State of the United States, and United States Department of State, Defendants-Appellees.
Case Date:December 28, 1956
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 527

239 F.2d 527 (2nd Cir. 1956)

Albert L. TROP, Plaintiff-Appellant,

v.

John Foster DULLES, as Secretary of State of the United States, and United States Department of State, Defendants-Appellees.

Nos. 63, 24184.

United States Court of Appeals, Second Circuit.

December 28, 1956

Argued Oct. 11, 1956.

Page 528

Osmond K. Fraenkel, New York City, for plaintiff-appellant.

Margaret E. Millus, Leonard P. Moore, U.S. Atty., Eastern Dist. of New York, Brooklyn, N.Y., for defendants-Appellees.

Before CLARK, Chief Judge, and HAND and SWAN, Circuit Judges.

HAND, Circuit Judge.

The plaintiff appeals from a judgment, summarily dismissing his complaint in an action under § 1503(a) of Title 8 U.S.C.A., for a judgment declaring him to be 'a national of the United States.' He is a native citizen, who was serving in 1944 in the United States Army in French Morocco; and the only question is whether he lost his 'nationality' because he was convicted by the judgment of a court-martial of desertion 'in time of war.' The sentence of the court was that he was 'to be dishonorably discharged from the service, to forfeit all pay and allowances due and to become due, and to be confined at hard labor * * * for three (3) years.' Since the judgment of the district court was summary we are to accept as true the statements in the plaintiff's affidavit upon the motion that he had been imprisoned in Casablanca in May 1944 for an earlier breach of discipline, and found the condition so intolerable that in desperation he escaped. The next day he surrendered; and meanwhile he had made no attempt to leave the area under control of American troops. He had had no intention to 'expatriate' himself or to become a national of any other country. Nor did he attempt to have any contact with any enemy of the United States, or to desert to any enemy of the United States or to any foreign country; and no claim was made in the court-martial proceedings that he had done so.

Page 529

As will appear, we do not find enough doubt of the constitutionality of the statute to resort to any but the natural meaning of the words: i.e., that 'in time of war' desertion of any kind results in 'expatriation.' Indeed, the proviso for possible restoration of 'nationality' makes it impossible to suppose that the crime was confined to desertion to the enemy. It was true that at common law no subject could throw off his allegiance, and apparently the sovereign could not 'expatriate' him. However, the Supreme Court, in Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, held that the Act of 1907, 34 Stat. 1228, was valid which 'expatriated' a woman who married an alien in this country; and that too although she had not intended to surrender her citizenship, and did not suppose that she was doing so. Again, in Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, a native citizen in 1940 married a citizen of Italy then in this country, and between 1941 and 1945 lived with him in Italy as his...

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