RUSK, SECRETARY OF STATE, v. CORT
No. 20
Supreme Court of the United States
Argued October 11, 1961. Decided April 2, 1962.
369 U.S. 367
Leonard B. Boudin argued the cause for appellee. With him on the brief was Victor Rabinowitz.
Briefs of amici curiae, urging affirmance, were filed by Jack Wasserman, David Carliner, Rowland Watts and Lawrence Speiser for the American Civil Liberties Union, and by Milton V. Freeman, Robert E. Herzstein, Horst Kurnik and Charles A. Reich for Angelika Schneider.
Sеction 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
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
Cort then instituted the present action against the Secretary of State in the United States District Court for the District of Cоlumbia, seeking declaratory and injunctive relief. His complaint alleged that he had not remained abroad to evade his military obligations, and
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
In support of its jurisdiction the District Court relied upon the Declaratory Judgment Act and the Administrative Procedure Act. 187 F. Supp., at 685. The Declaratory Judgment Act,
“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
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 .
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 .
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; McGrath v. Kristensen, 340 U. S. 162. 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, 106 F. Supp. 445; see Flemming v. Nestor, 363 U. S. 603.
It is the appellant‘s position, however, that despite these broad provisions of the Declaratory Judgment Act and the Administrative Procedure Act, Cort could not litigate his claim to citizenship in an action such as the
The Administrative Procedure Act confers the right to judicial review of “any agency action.” The procedures of
The predecessor of § 360 of the 1952 Act was § 503 of the Nationality Act of 1940,
In the ensuing years the abuses which some had anticipated did, indeed, develop, and the legislative history of § 360 of the 1952 Act shows that the predominate concern of Congress was to limit the easy-entry provision of § 503 of the 1940 Act, under which these abuses had occurred. Thus the report of the Senate Committee which studied immigration and nationality problems for two and a half years found that § 503 “has been used, in a considerable number of cases, to gain entry into the United States where no such right existed.” S. Rep. No. 1515, 81st Cong., 2d Sess., p. 777; see also Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 716, H. R. 2379 and H. R. 2816, 82d Cong., 1st Sess., pp. 108-110, 443-445. In describing the purpose of the legislation which became § 360 of the 1952 Act the Senate Judiciary Committee, stating that “[t]he bill modifies section 503 of the Nationality Act of 1940,” explained that it provides:
“that any person who has previously been physically present in the United States but who is not within the United States who claims a right or privilege as a national of the United States and is denied such right or privilege by any government agency may be issued a certificate of identity for the purpose of traveling to the United States and applying for admission to the United States. The net effect of
this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures. These procedures include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.” S. Rep. No. 1137, 82d Cong., 2d Sess., p. 50.
As a matter simply of grammatical construction, it seems obvious that the “such person” referred to in the Committee Report is a person who has chosen to obtain a certificate of identity and to seek admission to the United States in order to prosecute his claim. The appellee in the present case is, of course, not such a person.
This legislative history is sufficient, we think, to show that the purpose of
For these reasons, we hold that a person outside the United States who has been denied a right of citizenship is not confined to the procedures prescribed by
With respect to the other issues presented by this appeal, the case is set for reargument during the October Term, 1962, to follow No. 19.
It is so ordered.
MR. JUSTICE BRENNAN, concurring.
While I agree with the reasoning of the Court and join its opinion, I wish to note my view that its interpretation of § 360 of the Immigration and Nationality Act of 1952 is further supported by serious doubt as to whether the statute as construed and applied by the dissenting opinion would be constitutional. Compare, e. g., United States v. Witkovich, 353 U. S. 194, 201-202.
Necessarily implicit in the administrative denial of a right or privilege of citizenship on the ground that the individual affected has committed an expatriating act enumerated in § 401 of the 1940 Act or § 349 of the 1952 Act, is the assumption that the individual was theretofore a citizen. Accordingly, it follows from the interpretation advanced by the dissent that a person abroad who just prior to the adverse administrative action admittedly had been deemed a citizen, entitled to all the incidents of citizenship including the freedom to re-enter the country, may by unreviewable administrative action be relegated to the status of an alien confronted by all the barriers to alien entry and the limited access to judicial review that an alien enjoys. That Congress may, consistently with the requirements of due process, circumscribe general grants of jurisdiction1 so as to deny judicial review of administrative action which peremptorily initi-
If §§ 360 (b), (c) provided the sole avenue to judicial review for one who while abroad is denied a right of citizenship, the following consequences would result: He would have to apply for a certificatе of identity, which would be granted only if an administrative official was satisfied that the application was made in good faith and had a substantial basis. If the certificate were initially denied, an administrative appeal would have to be taken. If that failed, an attempt might be made to secure judicial review. A holding that no such review is available would mean that one who admittedly had been a citizen would have been conclusively converted into an alien without ever having gained access to any court. On the other hand, if review were forthcoming at this stage, and if issuance of a certificate were ordered, the individual would have gained only the right to travel to a United States port of entry—if he could afford the passage—there to be “subject to all the provisions of this chapter relating to the conduct of proceedings involving aliens seeking admission to the United States.” He would, in other words, have to submit to detention as an alien although it is assumed that he was once a citizen and no court had ever determined that he had been expatriated. Should he still encounter an administrative denial of the right to enter, he would finally get into court, but “in habеas corpus proceedings and not otherwise,” with whatever limitations upon the scope of review such language may imply.
The dissent would construe § 360 to mean that administrative action resulting in such a stark limitation of such fundamental rights is totally unreviewable. For the very procedures of subsections (b) and (c), which according to
The dissent finds shelter in United States v. Ju Toy, 198 U. S. 253, but that case does not resolve the constitutional doubts I have suggested. The precise issue there was the degree of finality to be accorded in habeas corpus proceedings to an administrative refusal of entry based on a finding that the petitioner was not, as he claimed, native-born and so had never been a citizen. Ju Toy was not an expatriation case in which administrative officials purported to withdraw rights of citizenship which admittedly once existed. Even if “the mere fact that [persоns seeking entry] . . . claimed to be citizens would not have entitled them under the Constitution to a judicial hearing,”2 it does not follow that rights attaching to admitted citizenship may be forfeited without a judicial hearing. To deny the rights of citizenship to one who previously enjoyed them “obviously deprives him of liberty . . . . It may result also in loss of both property and life; or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE CLARK join, dissenting.
The decision that the District Court had jurisdiction to entertain this declaratory judgment action, notwithstanding that the appellee is a foreign resident, seems to me manifestly wrong, in light of the governing statute and its legislative history which could hardly be more clear.
This issue depends upon § 360 of the 1952 Act. That section is entitled: “Proceedings For Declaration of United States Nationality In The Event of [the administrative] Denial of Rights And Privileges as National.” The provisions of the section set out in full in the margin,1 may be summarized as follows:
(1) If the person whose rights as a national have been administratively denied “is within the United
(2) If such person is “not within the United States,” but had previously been “physically” there, or was born abroad of an American citizen parent and is under the age of 16, (i) he may apply abroad for a “certificate of identity” to enable him to seek admission to the United States (subsection “(b)“); and (ii) if admission at a port of entry is finally denied him by the Attorney General, he may have that determination judicially reviewed “in habeas corpus proceedings and not otherwise.” If ultimately excluded from the United States, such person is made subject to all the provisions of the immigration law relating to the admission of aliens to the United States. (Subsection “(c).“)
As will be shown later, these provisions of the 1952 Act, among other things, departed from the comparable procedural provisions of § 503 of the Nationality Act of 1940,
ject to deportation in case it shall be decided by the court that he is not a national of the United States.“G. DECLARATORY JUDGMENT
“Under the provisions of section 503 of the Nationality Act of 1940 any person who claims a right or privilege as a national of the United States and who is denied such right or privilege by a governmental agency on the ground that he is not a national of the United States may institute an action in a district Federal court for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted the action in court, he may obtain from a diplomatic or consular officer a certificate of identity and may be admitted to the United States with the certificate upon the condition that he shall be sub-
“The bill modifies
section 503 of the Nationality Act of 1940 by limiting the court action exclusively to persons who are within the United States, and prohibits the court action in any case if the issue of the person‘s status as a national of the United States (1) arose by reason of, оr in connection with, any deportation or exclusion proceeding or (2) is an issue in any such deportation or exclusion proceeding. The reason for the modification is that the issue of citizenship is always germane in an exclusion and deportation proceeding, in which case an adjudication of nationality status can be appropriately made.“The bill further provides that any person who has previously been physically present in the United States but who is not within the United States who claims a right or privilege as a national of the United States and is denied such right or privilege by any government agency may be issued a certificate of identity for the purpose of traveling to the United States and applying for admission to the United States. The net effect of this provision is to require that the determination of the nationality of such person shall be made in accordance with the normal immigration procedures. These procedures include review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated.” S. Rep. No. 1137, to accompany S. 2550, 82d Cong., 2d Sess., p. 50. (Emphasis added.)
The Court now holds, however, that under
Prior to 1940, immigration and nationality statutes were silent on the form and scope of judicial review in deportation, exclusion, and nationality cases. In 1905 this Court, in a habeas corpus proceeding involving an administrative denial of admission to this country of a nonresident citizenship claimant who had temporarily departed, held that due process did not require a judicial trial of the issue of citizenship; and that the courts could inquire into the administrative decision only within the conventional limits of habeas corpus review.5 United States v. Ju Toy, 198 U. S. 253 (Holmes, J.). In 1922, however, the Court held that a resident claimant in a deportation proceeding was entitled to a judicial determination of his citizenship status, thus turning the availability of full judicial relief on the geographical location of the claimant. Ng Fung Ho v. White, 259 U. S. 276 (Brandeis, J.).
In 1934 the
It was not until 1940 that Congress, in the
At the same time Congress recognized the possibility of abuse of this liberalized procedure on the part of nonresident claimants who might seek certificates of identity only to achieve entry into this country, without any thought of pressing their citizenship claims; and an attempt was made to guard against such abuse. Accordingly, the section was written to provide that certificates of identity should be furnished only upon “a sworn application showing that the claim of nationality presented in such [declaratory judgment] action is made in good faith and has a substantial basis“; it also authorized the Secretary of State, with the approval of the Attorney Gen
Commencing soon after the close of World War II, and perhaps in part as a result of the then recent repeal of the
The first step in this direction occurred in 1950 when Senator McCarran introduced S. 3455, § 359 of which, entitled “Judicial Proceedings for Declaration of United States Nationality in the Event of Denial of Rights and Privileges as a National,”7 was the earliest version of what ultimately became
“In spite of the definite restrictions on the use and application of section 503 to bona fide cases [see supra, pp. 389-390], the subcommittee finds that the section had been subject to broad interpretation, and that it has been used, in a considerable number of cases, to gain entry into the United States where no such right existed. . . . The subcommittee therefore recommends that the provisions of section 503 as set out in the proposed bill be modified to limit the privilege to persons who are in the United States. . . .” (Emphasis added.)
Read in connection with this report it is surely beyond doubt that the
Early in the following year three additional bills were placed before the Congress, one in the Senate and two in the House. S. 716,10 a revision of the earlier McCarran bill, and H. R. 2379,11 introduced by Representative Walter, both provided for “citizenship” declaratory relief only as to persons “within the United States.” The third, H. R. 2816,12 introduced by Representative Celler, afforded such relief to “any person” (making no reference to location), and in other respects was also substantially like existing
In the ensuing Joint Hearings on these bills13 attention became sharply focused on the question of what, if
However, it is evident that the proposals of both State and Justice were intended to fill the remedial gap in S. 716 respecting nonresidents; that they contemplated either limiting, or entirely doing away with, the unrestricted declaratory relief available to nonresidents under
Following the Joint Hearings, the McCarran bill, S. 716, was redrawn as S. 2055,18 and the Walter bill, H. R. 2379, was revised as H. R. 5678,19 in consultation with representatives of the State and Justice Departments.20 The revised McCarran bill adopted the Department of Justice proposals, in effect limiting the judicial remedy for testing nonresident citizenship claims to that afforded in connection with “exclusion” cases, that is habeas corpus.21 The new Walter bill was in effect a combination of existing
Congress, thus squarely faced with making, or not making, declaratory relief available to nonresident citizenship claimants, chose the latter course. It accepted S. 2550,25 the judicial remedy provisions of which became
In light of this unambiguous course of events, I do not understand how the Government‘s contention that the District Court lacked jurisdiction over this declaratory judgment action can be successfully challenged, the appellee at all relevant times having resided abroad. To say the least, the Court‘s contrary conсlusion seems to me to rest on the most insecure kind of reasoning.
Certainly, the past cases in this Court lend no support to this decision. Perkins v. Elg, 307 U. S. 325, holding that a resident, threatened with deportation, could maintain a declaratory judgment action to establish citizenship, was of course quite in line with Ng Fung Ho v. White, supra. Moreover, the case was decided in 1939, before Congress, for the first time, addressed itself to the availability of declaratory relief in nationality cases. Supra, p. 389. McGrath v. Kristensen, 340 U. S. 162, is even more inapposite. The issue there was simply whether, in the circumstances involved, an alien then in this country was eligible for naturalization, so that the
Shaughnessy v. Pedreiro, 349 U. S. 48, and Brownell v. Tom We Shung, 352 U. S. 180, the two cases relied on by the Court as supporting the applicability of the
When it comes to
Proceeding from that premise, and despite the unequivocal directive in subsection (c) of
Finally, the Court considers that Congress’ “predominate concern” in enacting subsections (b) and (c) of
“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 tо attack an administrative finding that he is not a citizen of the United States.”
But to sustain the Government‘s position on this issue it is not necessary to find that Congress, in enacting
I am unable to grasp how the Court could have reached the conclusion that the present declaratory action is not precluded by