# Rusk v. Cort/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brennan
United States Supreme Court
369 U.S. 367
Rusk v. Cort
Argued: Oct. 11, 1961. --- Decided: April 2, 1962
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.'
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.' 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 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, 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.
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 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 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. 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 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.
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 one side this conceptual difficulty, it is to be noted that subsections (b) and (c) by their very terms simply provide that a person outside of the United States who wishes to assert his citizenship 'may' apply for a certificate of identity and that a holder of a certificate of identity 'may' apply for admission to the United States. As the District Court said, 'The language of the section shows no intention to provide an exclusive remedy, or any remedy, for persons outside the United States who have not adopted the procedures outlined in subsections (b) and (c). Neither does the section indicate that such persons are to be denied existing remedies.' 187 F.Supp., at 685.
The predecessor of § 360 of the 1952 Act was § 503 of the Nationality Act of 1940, 54 Stat. 1137. That section provided that a claimant whose citizenship was denied by administrative authorities could institute a declaratory judgment suit in the federal courts to determine his right to citizenship, whether he has in the United States or abroad. In addition, the section broadened the venue of such an action by permitting suit to be brought in the 'district in which such person claims a permanent residence.' Finally, the section provided a method by which a claimant could enter the United States and prosecute his claim personally.
The legislative history of § 503 indicates that Congress understood the provision for a declaratory judgment action to be merely a confirmation of existing law, or at most a clarification of it. What was concededly novel about § 503 was the provision designed to permit a citizenship claimant outside the United States to be admitted to this country upon a certificate of identity in order personally to prosecute his claim to citizenship, subject to the condition of deportation in the event of an adverse decision. At the time of the enactment of this provision some misgivings were expressed that it might be utilized by aliens to gain physical entry into the United States and then to disappear into the general populace.
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 Submittees 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 § 360(b) and (c) was to cut off the opportunity which aliens had abused under § 503 of the 1940 Act to gain fraudulent entry to the United States by prosecuting spurious citizenship claims. We are satisfied that Congress did not intend to foreclose lawsuits by claimants, such as Cort, who do not try to gain entry to the United States before prevailing in their claims to citizenship.
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 § 360(b) and (c), and that the remedy pursued in the present case was an appropriate one. This view is in accord with previous decisions of this Court concerning the relationship of §§ 10 and 12 of the Administrative Procedure Act to the subsequently enacted Immigration and Nationality Act of 1952. See Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868; Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. The teaching of those cases is that the Court will not hold that the broadly remedial provisions of the Administrative Procedure Act are unavailable to review administrative decisions under the 1952 Act in the absence of clear and convincing evidence that Congress so intended.
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.
Case set for reargument.

## Notes

* ↑ 66 Stat. 163, 267-268, 8 U.S.C. § 1481(a)(10), 8 U.S.C.A. § 1481(a)(10).
* ↑ 50 U.S.C.App. § 454 et seq., 50 U.S.C.A.Appendix, § 454 et seq. Appellee had previously registered as a regular registrant under the Universal Military Training and Service Act of 1948.
* ↑ 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630.
* ↑ We postponed consideration of the question of our jurisdiction of this appeal until the hearing of the case on the merits. 365 U.S. 808, 81 S.Ct. 691, 5 L.Ed.2d 690. Under 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, a direct appeal may be taken from a District Court decision holding unconstitutional an Act of Congress in a civil action in which an officer of the United States is a party. Since the District Court held § 349(a)(10) unconstitutional, this appeal is properly before us under § 1252.
* ↑ Section 360(a), 66 Stat. 163, 273, 8 U.S.C. § 1503(a), 8 U.S.C.A. § 1503(a):
* ↑ Section 360(b) and (c), 66 Stat. 163, 273-274, 8 U.S.C. § 1503(b) and (c), 8 U.S.C.A. § 1503(b, c):
* ↑ Section 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171-1172, provided:
* ↑ For example, one of the managers of the bill in the House explained the declaratory judgment provisions as follows:
* ↑ For instance, a representative of the Immigration and Naturalization Service testified at the House Committee hearings that after a citizen claimant had been permitted to enter the United States, '(I)t would be open to question, in my mind, whether you would ever get him out again.' Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, superseded by H.R. 9980, 76th Cong., 1st Sess., p. 292; see also, id., at 294, 296.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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