Kennedy v. Mendoza-Martinez

CourtUnited States Supreme Court
Citation9 L.Ed.2d 644,83 S.Ct. 554,372 U.S. 144
Docket NumberNos. 2,3,MENDOZA-MARTINEZ,s. 2
PartiesRobert F. KENNEDY, Attorney General of the United States, Appellant, v. FranciscoDean RUSK, Secretary of State, Appellant, v. Joseph Henry CORT. Re
Decision Date18 February 1963

Bruce J. Terris, Washington, D.C., for appellant.

Thomas R. Davis, for appellee.

No. 3:

J. William Doolittle, Washington, D.C., for appellant.

Leonard B. Boudin, New York City, for appellee.

Mr. Justice GOLDBERG delivered the opinion of the Court.

We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for '(d)eparting from or remaining outside of the jurisdiction of the United States in time of war or * * * national emergency for the purpose of evading or avoiding training and service' in the Nation's armed forces.1

A. Mendoza-Martinez—No. 2.

The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922 and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942 he departed from this country and went to Mexico solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940.2 He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until 1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.

Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him. A single-judge District Court in an unreported decision entered judgment against Mendoza-Martinez in 1955, holding that by virtue of § 401(j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F.2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U.S. 258, 78 S.Ct. 713, 2 L.Ed.2d 757, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596.

On September 24, 1958, the District Court announced its new decision, also unreported, that in light of Trop § 401(j) is unconstitutional because not based on any 'rational nexus * * * between the content of a specific power in Congress and the action of Congress in carrying that power into execution.' On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, 79 S.Ct. 648, 3 L.Ed.2d 635, and then of its own motion remanded the cause, this time with permission to the parties to amend the pleadings to put in issue the question of whether the facts as determined on the draft-evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812.

The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis of invalidity that § 401(j) is 'essentially penal in character and deprives the plaintiff of procedural due process. * * * (T)he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings.'3 The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, Rogers v. Mendoza-Martinez, 365 U.S. 809, 81 S.Ct. 691, 5 L.Ed.2d 689. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U.S. 832, 82 S.Ct. 863, 7 L.Ed.2d 841.

B. Cort—No. 3.

Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M.D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft and shortly before his departure supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act.4 In late 1951 he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made 'valid only for return to the United States.' He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding, 'I believed that they were unlawful and I did not wish to subject myself to this and similar forms of political persecution then prevalent in the United States. * * * I was engaged in important research and teaching work in physiology and I desired to continue earning a livelihood for my family.' Cort had been a member of the Communist Party while he was a medical student at Yale from 1946 to 1951, except for the academic year 19481949 when he was in England. In late 1952, while still in England at Cambridge, he accepted a teaching position for the following academic year at Harvard University Medical School. When, however, the school discovered through further correspondence that he had not yet fulfilled his military obligations, it advised him that it did not regard his teaching position as essential enough to support his deferment from military service in order to enter upon it. Thereafter, his local draft board in Brookline, Massachusetts, notified him in February 1953 that his request for deferment was denied and that he should report within 30 days for a physical examination either in Brookline or in Frankfurt, Germany. On June 4 and on July 3 the draft board again sent Cort notices to report for a physical examination, the first notice for examination on July 1 in Brookline, and the second for examination within 30 days in Frankfurt. He did not appear at either place, and the board on August 13 ordered him to report for induction on September 14 1953. He did not report, and consequently he was indicted in December 1954 for violation of § 12(a) of the Selective Service Act of 1948 5 by reason of his failure to report for induction. This indictment is still outstanding. His complaint in this action states that he did not report for induction because he believed 'that the induction order was not issued in good faith to secure his military services, that his past political associations and present physical disabilities made him ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional committee subpoena or indicted under the Smith Act * * *.' Meanwhile, the British Home Office had refused to renew his residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia, where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.

In April 1959, his previous United States passport having long since expired, Cort applied at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport 'in order to return to the United States with his wife and children so that he might fulfill his obligations under the Selective Service laws and his wife might secure medical treatment for multiple sclerosis.' Mrs. Cort received a passport and came to this country temporarily in late 1959, both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's application, however, was denied on the ground that he had, by his failure to report for induction on September 14, 1953, as ordered, remained outside the country to avoid military service and thereby automatically forfeited his American citizenship by virtue of § 349(a)(10) of the Immigration and Nationality Act of 1952, which had superseded § 401(j). The State Department's Passport Board of Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction against enforcement of § 349(a)(10) because of its...

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