Florentine v. Landon, 14289.

• Decision Date: 19 December 1955
• Docket Number: No. 14289.,14289.
• Citation: 231 F.2d 452
• Parties: Harry Edward FLORENTINE, Appellant, v. H. R. LANDON, District Director of Immigration and Naturalization at Los Angeles, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

231 F.2d 452 (1955)

Harry Edward FLORENTINE, Appellant, v. H. R. LANDON, District Director of Immigration and Naturalization at Los Angeles, California, Appellee.

No. 14289.

United States Court of Appeals Ninth Circuit.

December 19, 1955.

David C. Marcus, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Robert K. Grean, Andrew J. Davis, Jr., Los Angeles, Cal., for appellee.

Before FEE and CHAMBERS, Circuit Judges, and WIIG, District Judge.

PER CURIAM.

Florentine appeals from a judgment dismissing a petition for a judicial declaration of his status as a national and citizen of the United States. In his original complaint,¹ filed November 9, 1952, H. R. Landon, as District Director of Immigration and Naturalization at Los Angeles, was named as the only party defendant. Florentine in his complaint set up no "facts" except that he alleged he was born in the United States at Los Angeles, California, and was a native born citizen and a permanent resident within the jurisdiction of the court. He set up as conclusions that the action was brought under § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903,^* and 28 U.S.C.A. § 2201, under which he sought to invoke the jurisdiction of the District Court. He also concluded "that an actual controversy exists concerning petitioner's rights and privileges as a constitutional citizen of the United States between petitioner and respondents." The most important of these conclusions is set out in the exact words in which it appears:

"Petitioner herein claims the rights and privileges as a citizen of the United States, and the respondents, through their subordinate officers, agents and employees have denied your petitioner his rights and privileges as a constitutional citizen of the United States and as a national of the United States, and have treated petitioner herein as an alien, and, more particularly, have contended and claimed that your petitioner is not a citizen of the United States and not entitled to the rights and privileges as a citizen of the United States, on the ground that he is not a national or citizen of the United States."

On March 10, 1953, Landon filed a motion to dismiss for lack of jurisdiction over the subject matter, failure to state a claim upon which relief could be granted and failure to join an indispensable party. Before hearing was had on this motion, and on April 9, 1953, Florentine filed an amended complaint in which substantially the same allegations were set up, but joined Herbert Brownell, as Attorney General of the United States, who was alleged therein to be "Attorney General of the United States and as such" "the head of the Department of Justice and Immigration and Naturalization Service." So far as the record shows, no service was ever made upon Herbert Brownell either personally or officially.

Pursuant to Rule 12(b) (1, 2, 6) of the Federal Rules of Civil Procedure, 28 U. S.C.A., Brownell, as Attorney General, appearing specially, filed a motion to dismiss the amended complaint for lack of jurisdiction over the subject matter, lack of jurisdiction over the person and failure to state a claim upon which relief could be granted. The trial court held that, since the statute upon which the petition was based, namely, 8 U.S.C.A. § 903, was repealed on June 27, 1952, c. 477, Title 4, § 403(a) (42), 66 Stat. 280, and the expiration date of this section was set for December 24, 1952, the court did not have jurisdiction over the person of the Attorney General of the United States and that his motion to dismiss under Rule 12(b) (7) is also valid since the amended complaint, filed after the expiration of the statute under which it was brought, does not state a claim upon which relief can be granted.

Neither the original petition nor the amended petition states sufficient facts to found the relief prayed for or any other relief. No "facts" are set up whereby it can be determined from the face of the complaint that the Attorney General, the District Director or any other of the officers or agents of the Service, did anything. They may have entertained a belief that Florentine was not a citizen or not a national, and in that sense they may have denied his status. It is not set up that there was any procedure taken or any act done inimical to Florentine or to his status. Therefore, the motion of Landon to dismiss the...