Rusk v. Cort, No. 20

CourtUnited States Supreme Court
Writing for the CourtSTEWART
PartiesDean RUSK, Secretary of State, Appellant, v. Joseph Henry CORT
Decision Date02 April 1962
Docket NumberNo. 20

369 U.S. 367
82 S.Ct. 787
7 L.Ed.2d 809
Dean RUSK, Secretary of State, Appellant,

v.

Joseph Henry CORT.

No. 20.
Argued Oct. 11, 1961.
Decided April 2, 1962.

Page 368

Oscar H. Davis, Washington, D.C., for the appellant.

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

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

Page 369

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, 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 rejucted 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, D.C., 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

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, 28 U.S.C.A. § 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

Page 372

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, 5 U.S.C.A. § 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, 5 U.S.C.A. § 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, 59 S.Ct. 884, 83 L.Ed. 1320; McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173. 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, D.C., 106 F.Supp. 445; see Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435.

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

Page 373

one he brought in the 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 right or privilege of citizenship—except that such an action cannot be instituted if the issue of citizenship arises in connection with an exclusion proceeding. 5 Subsections (b) and (c) deal with citizenship claimants 'not within the United States.' The former provides with limitations, for the issuance abroad of certificates of identity 'for the purpose of traveling to a port of entry in the United States and applying for admission.' The latter subsection declares that a person issued such a certificate 'may apply for admission to the United States at any port of entry, and shall be subject

Page 374

to all the provisions of this Act relating to the conduct of proceedings involving aliens seeking admission to the United States.' Judicial review of those proceedings is to be by habeas corpus and not otherwise.6

Page 375

Thus, the question posed is whether the procedures specified in § 360(b) and (c) provide the only method of reviewing the Secretary of State's determination that Cort has forfeited his citizenship. More precisely stated, the question in this case is whether, despite the liberal provisions of the Administrative Procedure Act, Congress intended that a native of this country living abroad must travel thousands of miles, be arrested, and go to jail in order to attack an administrative finding that he is not a citizen of the United States. We find nothing in the statutory language, in the legislative history, or in our prior decisions which leads us to believe that Congress had any such purpose.

The Administrative Procedure Act confers the right to judicial review of 'any agency action.' The procedures of § 360(b) and (c) would culminate in litigation not against the Secretary of State whose determination is here being attacked, but against the Attorney General. Whether such litigation could properly be considered review of the Secretary of State's determination presents a not insubstantial question. Putting to...

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182 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...opinion); Morris v. Gressette, 432 U.S. 491, 501 (1977); Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967); Rusk v. Cort, 369 U.S. 367, 379-80 (1962); Int'l Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 807 (D.C. Cir. 1983). Second, the Supreme Court has provided that cour......
  • Califano v. Sanders, No. 75-1443
    • United States
    • United States Supreme Court
    • February 23, 1977
    ...820, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 372, 82 S.Ct. 787, 790, 7 L.Ed.2d 809 (1962). However, an Act of Congress enacted since our grant of certiorari in this case now persuades u......
  • Franklin v. Massachusetts, No. 91-1502
    • United States
    • United States Supreme Court
    • June 26, 1992
    ...legislative intent, Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 380, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962)). No such evidence appears here. The current version of the statute provides that "[t]he Secret......
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); accord, Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 7 L.Ed.2d 809 16 Doe's complaint names four defendants: the United States Civil Service Commission; Alan Campbell, Ch......
  • Request a trial to view additional results
183 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...opinion); Morris v. Gressette, 432 U.S. 491, 501 (1977); Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967); Rusk v. Cort, 369 U.S. 367, 379-80 (1962); Int'l Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 807 (D.C. Cir. 1983). Second, the Supreme Court has provided that cour......
  • Califano v. Sanders, No. 75-1443
    • United States
    • United States Supreme Court
    • February 23, 1977
    ...820, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 372, 82 S.Ct. 787, 790, 7 L.Ed.2d 809 (1962). However, an Act of Congress enacted since our grant of certiorari in this case now persuades u......
  • Franklin v. Massachusetts, No. 91-1502
    • United States
    • United States Supreme Court
    • June 26, 1992
    ...legislative intent, Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 380, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962)). No such evidence appears here. The current version of the statute provides that "[t]he Secret......
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); accord, Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 7 L.Ed.2d 809 16 Doe's complaint names four defendants: the United States Civil Service Commission; Alan Campbell, Ch......
  • Request a trial to view additional results

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