Tom Mung Ngow v. Dulles, Civ. A. No. 1591-54.
| Decision Date | 09 July 1954 |
| Docket Number | Civ. A. No. 1591-54. |
| Citation | 122 F. Supp. 709 |
| Parties | TOM MUNG NGOW v. DULLES, Secretary of State. |
| Court | U.S. District Court — District of Columbia |
Joseph A. Rafferty, Jr., Asst. U. S. Atty., Washington, D. C., for defendant, for the motion.
The question presented on this motion is whether a person who claims to be a citizen of the United States, but who is outside of this country, may maintain an action for a declaratory judgment to secure an adjudication of his citizenship.
This action is brought against the Secretary of State for a declaratory judgment that the plaintiff is a citizen of the United States. The matter comes before the court on a motion by the defendant to dismiss the complaint for insufficiency. This motion, at the defendant's request, is being treated as a motion for summary judgment. The material and pertinent allegations of the complaint can be briefly summarized. It is alleged that the plaintiff was born in China on February 28, 1930, and that he is a son of a citizen of the United States. On this basis it is claimed that the plaintiff is a citizen of the United States by birth. It is further averred that the plaintiff made an application to the American consul at Hong Kong, for a passport to enable him to come to the United States, but that the application was disapproved on the ground that the plaintiff had not established his citizenship.
The plaintiff seeks an adjudication of his citizenship and of his right to enter the United States. The defendant moves to dismiss the complaint on the ground that the action does not lie. The question of law to be determined on this motion is whether this action may be maintained. While the complaint also raises certain constitutional issues, they are not reached for determination at this time, in the light of the disposition that is being made of this motion.
Actions for declaratory judgments were introduced into Federal jurisprudence by the Declaratory Judgment Act of June 14, 1934, 48 Stat. 955; 28 U.S.C.A. § 2201. The Supreme Court has approved the application of this statute to suits brought against the Secretary of State or the Attorney General, to establish citizenship, Perkins v. Elg, 69 App.D.C. 175, 99 F.2d 408, affirmed 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; McGrath v. Kristensen, 340 U.S. 162, 168-171, 71 S.Ct. 224, 95 L.Ed. 173.
Later the Nationality Code of 1940, § 503, Act of October 14, 1940, 54 Stat. 1137, 1171, created a special statutory action to obtain a declaration of nationality. This statutory proceeding differed from the general declaratory judgment action in two respects: first, the statute permitted the special action to be brought either in the District of Columbia or in the district of the plaintiff's residence, instead of only in the district of the defendant's residence, which would ordinarily be the District of Columbia; and second, the right of action was implemented by a provision that if the plaintiff was outside of the United States, he might obtain from a diplomatic or consular officer of the United States, upon a proper showing, a certificate of identity temporarily admitting him to this country on condition that he should be subject to deportation if the action should be decided against him.
Since repeals by implication are not favored, and as there was no repugnancy or conflict between the general provisions of the Declaratory Judgment Act and Section 503 of the Nationality Code, the former may not be deemed repealed pro tanto. Both remedies continued to coexist side by side. While the specific provisions were in effect, however, the general remedy fell into temporary disuse for adjudications of citizenship, as the special action provided by the Nationality Code was more flexible and more efficacious.
This was the state of the law when the Administrative Procedure Act was enacted on June 11, 1946, 60 Stat. 237; 5 U.S.C.A. § 1001 et seq. One of the objectives of this Act was to expand judicial review of administrative actions. This Act contains the broad provision, 5 U.S.C.A. § 1009(a), that, "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." Only two exceptions are expressed to this general rule: "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." The aim of the statute is brought into sharp focus by an additional provision (Id., subsection (c)):
"Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review."
The Act contains an express provision concerning the form of proceeding to secure judicial review of agency action (Id., subsection (b)):
"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 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."1
The object and intent of Congress in enacting this beneficent and progressive legislation is strongly emphasized by a unique and unusual expression found in the last section of the statute, 5 U.S.C.A. § 1011:
"No subsequent legislation shall be held to supersede or modify the provisions of this chapter except to the extent that such legislation shall do so expressly."
The purpose of Congress further unequivocally appears from the following statement in the report of Senator McCarran as Chairman of the Committee on the Judiciary, concerning this legislation (S.Rept. No. 752, 79th Cong., 1st Sess.):
"It i. e., the bill sets forth a simplified statement of judicial review designed to afford a remedy for every legal wrong."
Again the report sets forth that the provision above quoted confers "a right of review upon any person adversely affected in fact by agency action or aggrieved within the meaning of any statute." Finally, it is stated that, "Agency action made reviewable specially by statute or final agency action for which there is no other adequate judicial remedy, is subject to judicial review."
It is inconceivable how the Congress could have expressed more emphatically or more unequivocally its intention to subject every final agency action to judicial review at the behest of any person...
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Rusk v. Cort
...to citizenship claims, compare both the decision of the District Court in the present case, 187 F.Supp. 683, and Tom Mung Ngow v. Dulles, D.C., 122 F.Supp. 709, with D'Argento v. Dulles, D.C., 113 F.Supp. 933. 27 This is not so now. See the 1961 amendments to the Immigration and Nationality......
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Rosasco v. Brownell
...the jurisdiction of the federal courts. See also Fletes-Mora v. Brownell, 9 Cir., 1955, 231 F.2d 579; but see Tom Mung Ngow v. Dulles, D.C.D.C. 1954, 122 F.Supp. 709; Puig Jiminez v. Glover, Despite the fact that the court has no jurisdiction in these two actions, it is considered advisable......
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Grauert v. Dulles
...Act of 1952, 8 U.S.C.A. § 1503, but it may be instituted under the Declaratory Judgment Act, 28 U.S.C.A. § 2201. Tom Mung Ngow v. Dulles, D.C.1954, 122 F. Supp. 709. It should be dismissed, however, because it does not present a controversy within the meaning of the Act, 28 U.S.C.A. § The D......
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Puig Jimenez v. Glover, 5285.
...no explicit exclusion of such possibility, as was indeed held by the District Court for the District of Columbia in Tom Mung Ngow v. Dulles, 1954, 122 F.Supp. 709. We do not have to go so far as that in the present case, since we are of opinion that appellant clearly comes within the permis......