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

Citation122 F. Supp. 260
Decision Date23 June 1954
Docket NumberCiv. No. 1261.
PartiesJUNSO FUJII v. DULLES, Secretary of State.
CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)

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.

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 effectively invoke the jurisdiction of this court.

The amended complaint proceeds upon the theory of an express denial. It is therein alleged that the execution on November 20, 1952, of the Loss of Nationality Certificate constituted a denial of the plaintiff's rights within the meaning of Section 903. This position is untenable and it is unnecessary to decide whether it is the execution by the Consul of this document or its approval by the State Department in Washington, D. C., which is the denial, for the Consul's action is certainly not a denial when it is uncommunicated to the plaintiff prior to the filing of the complaint. Hitaka Suda v. Dulles, Civil No. 1302, D.Hawaii, April 26, 1954.

Thus, the first event in this case which could conceivably qualify as a denial for the purposes of the statute is the telegraphic approval by the State Department of this Certificate on December 18, 1952, two days after the filing of the complaint; this allegation is sought to be added to the amended complaint supplementally. Even if this request be granted, this fact does not avail the plaintiff, because it occurred subsequent to the filing of the complaint and is ineffectual to relieve that document's invalidity or its prematurity.

There is merit in the contention of the defendant that inasmuch as the original complaint fails to comply with Rule 8(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., all amendatory and supplemental material should be precluded on the ground that there is nothing in being possessing legal spark and life to be amended or supplemented, and it is sought to be added after the statutory basis for such an action has been repealed by Congress. However, this court will allow the amendments and supplements inasmuch as the amended complaint was filed pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and it having been held thereunder that a motion to dismiss is not a responsive pleading. Kelly v. Delaware River Joint Commission, 3 Cir., 1951, 187 F.2d 93, 94, certiorari denied, 1951, 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614; United States v. Newbury Mfg. Co., 1 Cir., 1941, 123 F.2d 453.

As noted before, however, there still are no facts alleged here upon which a valid denial can be predicated prior to the filing of the original complaint.

In order to preserve his right of action, the plaintiff seeks to invoke the Saving Clause, Section 405 of the Immigration and Nationality Act, 8 U.S. C.A. § 1101 note. That section provides in part:

"Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed * * * to affect any prosecution, suit, action, or proceedings, civil or criminal, * * * or any * * * right in process of acquisition, * * * done or existing, at the time this Act shall take effect; * * *."

The plaintiff argues that even if the original complaint be held invalid, he still initiated a suit, action, or proceeding within the meaning of the Saving Clause and consequently the applicable provisions of the 1940 Act are continued in full force and effect.

However, the Saving Clause presupposes a valid...

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3 cases
  • Matsuo v. Dulles, 15746.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • June 22, 1955
    ...makes it immune to change by Congress. Barber v. Yanish, 9 Cir., 1952, 196 F.2d 53, and cases cited in footnote; Junso Fujii v. Dulles, D.C. Haw.1954, 122 F.Supp. 260; Avina v. Brownell, D.C.Tex.1953, 112 F.Supp. 15; Ng Gwong Dung v. Brownell, D.C.N.Y. 1953, 112 F.Supp. 673. Section 405(a) ......
  • Wong Ark Kit v. Dulles, Civ. A. No. 52-1437.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 26, 1955
    ...as to confer jurisdiction under § 503, the controlling facts are those existing at the date suit is brought, Junso Fujii v. Dulles, D.C., D.Hawaii, 122 F.Supp. 260, 262-263. The simplest way to show that the court has jurisdiction is to prove that the consulate explicitly refused travel doc......
  • Yong Hong Keung v. Dulles, Civ. A. No. 52-1442.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 10, 1954
    ...been brought necessarily counteracts or destroys a previous positive denial of citizenship by the consular agent. Cf. Junso Fujii v. Dulles, D.C., Hawaii, 122 F.Supp. 260. Of course at the trial the plaintiff will have to support the allegation of denial made in his complaint, but at the pr......

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