369 U.S. 367 (1962), 20, Rusk v. Cort

Docket Nº:No. 20
Citation:369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809
Party Name:Rusk v. Cort
Case Date:April 02, 1962
Court:United States Supreme Court
 
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Page 367

369 U.S. 367 (1962)

82 S.Ct. 787, 7 L.Ed.2d 809

Rusk

v.

Cort

No. 20

United States Supreme Court

April 2, 1962

Argued October 11, 1961

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Syllabus

Appellee was born in the United States, but has resided abroad since 1951. His original passport having expired, he applied to the United States Embassy in Prague, Czechoslovakia, for a new one. This was denied on the ground that he had lost his citizenship under § 349(a)(10) of the Immigration and Nationality Act of 1952 by remaining outside the United States for the purpose of avoiding military service. He sued in a Federal District Court for declaratory and injunctive relief against appellant, the Secretary of State, alleging that he had not remained abroad to evade military service, and that § 349(a)(10) was unconstitutional. A three-judge District Court convened to try the case denied a motion to dismiss which was based on the claim that § 360(b) and (c) of the Immigration and Nationality Act of 1952 provide the exclusive procedure under which appellee could attack the administrative determination that he was not a citizen. It also held that § 349(a)(10) was unconstitutional, and awarded appellee a judgment declaring him to be a citizen and enjoining appellant from denying him a passport on the ground that he was not a citizen. Appellant appealed directly to this Court.

Held:

1. Since the District Court held § 349(a)(10) unconstitutional, this appeal is properly before this Court under 28 U.S.C. § 1252. P. 370, n. 4.

2. A person outside the United States who has been denied a right of citizenship is not confined to the procedures prescribed by § 360(b) and (c) of the Immigration and Nationality Act of 1952, and the remedy pursued in the present case under the Administrative Procedure Act and the Declaratory Judgment Act was an appropriate one. Pp. 370-380.

3. With respect to the other issues presented by this appeal, the case is set for reargument during the October Term, 1962. P. 380.

Reported below: 187 F.Supp. 683.

Page 368

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

Section 349(a)(10) of the Immigration and Nationality Act of 1952 provides:

From and after the effective date of this Act, a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by --

* * * *

(10) departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States. For the purposes of this paragraph, failure to comply with any provision of any compulsory service laws of the United States shall raise the presumption that the departure from or absence from the United States was for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States.1

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The appellee, Joseph Cort, is a physician and research physiologist. He was born in Massachusetts in 1927. In May of 1951, he registered with his Selective Service Board under the so-called "Doctors' Draft Act."2 A few days later, he left the United States for Cambridge, [82 S.Ct. 789] England. In 1953, while still in England, he was repeatedly notified by his draft board to report for a physical examination either in the United States or at an examining facility in Europe. He disregarded these communications and, in September of 1953, his draft board ordered him to report to Brookline, Massachusetts, for induction into the Armed Forces. He failed to report as directed, and remained in England. In 1954, an indictment charging him with draft evasion was returned in the United States District Court for the District of Massachusetts. Earlier that year, after the British Home Office had refused to renew his residence permit, Cort had gone to Prague, Czechoslovakia. He has been there ever since.

In 1959, Cort applied to our Embassy in Prague for a United States passport, his original passport having long since expired. His application was denied by the Passport Office of the Department of State on the ground that he had lost his citizenship under § 349(a)(10) of the 1952 Act by remaining outside the United States for the purpose of avoiding military service. Subsequently, the State Department's Board of Review on Loss of Nationality affirmed the decision of the Passport Office on the same ground.

Cort then instituted the present action against the Secretary of State in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief. His complaint alleged that he had not remained abroad to evade his military obligations, and

Page 370

that § 349(a)(10) was, in any event, unconstitutional. A three-judge court was convened. The Secretary of State moved to dismiss the action upon the ground that § 360(b) and (c) of the Immigration and Nationality Act of 1952 provide the exclusive procedure under which Cort could attack the administrative determination that he was not a citizen. The District Court rejected this contention, holding that it had jurisdiction of the action for a declaratory judgment and an injunction. On motions for summary judgment, the court determined that the appellee had remained abroad to avoid service in the Armed Forces. Relying upon Trop v. Dulles,3 the court held, however, that § 349(a)(10) was unconstitutional, and that, consequently, the appellee's citizenship had not been divested. The court accordingly entered a judgment declaring the appellee to be a citizen of the United States and enjoining the Secretary of State from denying him a passport on the ground that he is not a citizen. Cort v. Herter, 187 F.Supp. 683. This is a direct appeal from that judgment.

The only question we decide today is whether the District Court was correct in holding that it had jurisdiction to entertain this action for declaratory and injunctive relief. If not, we must vacate the judgment and direct the District Court to dismiss the complaint.4

Page 371

[82 S.Ct. 790] In support of its jurisdiction, the District Court relied upon the Declaratory Judgments Act and the Administrative Procedure Act. 187 F.Supp. at 685. The Declaratory Judgments Act, 48 Stat. 955, as amended, 28 U.S.C. § 2201, provides:

In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

Section 10 of the Administrative Procedure Act provides:

Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion --

(a) RIGHT OF REVIEW. -- Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

(b) FORM AND VENUE OF ACTION. -- The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the

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absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.

60 Stat. 243, 5 U.S.C. § 1009.

Section 12 of the Administrative Procedure Act provides in part:

No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.

60 Stat. 244, 5 U.S.C. § 1011.

On their face, the provisions of these statutes appear clearly to permit an action such as was brought here to review the final administrative determination of the Secretary of State. This view is confirmed by our decisions establishing that an action for a declaratory judgment is available as a remedy to secure a determination of citizenship -- decisions rendered both before and after the enactment of the Administrative Procedure Act. Perkins v. Elg, 307 U.S. 325; McGrath v. Kristensen, 340 U.S. 162. Moreover, the fact that the plaintiff is not within the United States has never been thought to bar an action for a declaratory judgment of this nature. Stewart v. Dulles, 101 U.S.App.D.C. 280, 248 F.2d 602; Bauer v. Acheson, 106 F.Supp. 445; see Flemming v. Nestor, 363 U.S. 603.

It is the appellant's position, however, that, despite these broad provisions of the Declaratory Judgments Act and the Administrative Procedure Act, Cort could not litigate his claim to citizenship in an action such as the

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one he brought in the [82 S.Ct. 791] District Court, but is confined instead to the procedures set out in subsections (b) and (c) of § 360 of the Immigration and Nationality Act of 1952. Section 360 establishes procedures for determining claims to American citizenship by those within and without the country. Subsection (a) covers claimants "within the United States," and authorizes an action for a declaratory judgment against the head of the agency denying the claimant a...

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