Junso Fujii v. Dulles, Civ. No. 1261.

• Court: U.S. District Court — District of Hawaii
• Writing for the Court: McLAUGHLIN
• Citation: 122 F. Supp. 260
• Parties: JUNSO FUJII v. DULLES, Secretary of State.
• Decision Date: 23 June 1954
• Docket Number: Civ. No. 1261.

122 F. Supp. 260

JUNSO FUJII
v.
DULLES, Secretary of State.

Civ. No. 1261.

United States District Court, D. Hawaii.

June 23, 1954.

122 F. Supp. 261

Fong, Miho, Choy & Chuck (Katsuro Miho) Honolulu, Hawaii, A. L. Wirin & Fred Okrand, Los Angeles, Cal., for plaintiff.

A. William Barlow, U. S. Atty., Dist. of Hawaii, Honolulu, Hawaii, Louis B. Blissard, Asst. U. S. Atty., Dist. of Hawaii, Honolulu, Hawaii, for defendant.

McLAUGHLIN, Chief Judge.

The plaintiff has filed this timely action under Section 503 of the Nationality Act of 1940, 8 U.S.C. § 903, petitioning this court for judgment declaring him to be a citizen of the United States.

The original complaint was filed December 16, 1952, and alleged that the plaintiff was a citizen of the United States by virtue of his birth in Honolulu, T. H., on August 30, 1911, but that he left the United States on May 2, 1939, to go to Japan, and has resided there ever since. It was alleged also that from March 24, 1945, to February 8, 1946, the plaintiff served in the Japanese Armed Forces, although that service was not his free and voluntary act, and

"That quite some time ago, the Plaintiff executed a Petition addressed to the American Consular Service at Kobe, Japan * * *" for a passport, but that no action had been taken on the petition and that the "non-action and inexcusable delay" by the consulate constituted a denial of the plaintiff's rights and privileges within the meaning of 8 U.S.C. § 903.

Subsequently, on March 15, 1954, the plaintiff filed an amended complaint in which it was alleged as follows:

1. That what the plaintiff had sought on the above occasion was actually registration as an American citizen and this was done on October 17, 1952.

2. That this application was denied on November 20, 1952, when the Vice-Consul executed a Loss of Nationality Certificate relating to the plaintiff by reason of his service in the Japanese Armed Forces.

122 F. Supp. 262

3. That such constituted a denial within the meaning of Section 903.

To both of these complaints, the defendant filed a motion to dismiss. At the hearing on the latter, the following additional facts were adduced: First, that at the time of the filing of the original complaint, the plaintiff was unaware that the Vice-Consul had, on November 20, 1952, executed a Loss of Nationality Certificate and forwarded the same to the State Department in Washington, D. C., in accordance with 8 U.S.C. § 901;¹ secondly, that on December 18, 1952, the State Department sent a telegram to the American Consul at Kobe approving a number of Certificates executed by him, one of which was the plaintiff's. (This Certificate was formally approved by the State Department March 18, 1953, and the plaintiff's application denied by the United States Consul in Kobe March 20, 1953.)

The original complaint depends for its validity upon the theory that the denial necessary for an action under 8 U.S.C. § 903 resulted from the "inexcusable delay" by the Consulate in processing the plaintiff's application. Section 903 states that the claimant must be denied a right or privilege as a national of the United States "upon the ground that he is not a national of the United States * * *." Without alleging such a basis for the denial, the plaintiff states no claim within the meaning of the Nationality Act of 1940, 8 U.S.C. § 903. Dulles v. Lee Gnan Lung, 9 Cir., 212 F.2d 73; Yoichi Fujii v. Dulles, Civil No. 1300, D.Hawaii, May 28, 1954. Merely alleging delay without alleging the denial to have been rested upon this ground is insufficient for the purposes of the statute, for the delay may be occasioned by reasons other than that the applicant is not a national of the United States. Jack Len Lee, Guardian ad litem for Sing Hoon Lee and Sing Yuen Lee, v. Dulles, Civil No. 1188, D. Hawaii, June 1, 1954.

While delay by the Government in granting the right petitioned for may well be, in effect, a denial of that right, this delay must have been of unreasonable duration in order to call this principle into operation. In view of the nature of these claims, and the time needed for their processing, the two-months' delay complained of here would clearly not be of unreasonable length, even if it were alleged to have been founded on plaintiff's lack of nationality — an allegation which does not appear in this original complaint.

Therefore, the original complaint fails to state a claim upon which relief can be granted, and does not...