Julius Strupp, Plaintiff-appellant, v. John Foster Dulles, Secretary of State, Defendant-appellee, 258 F.2d 622 (2d Cir. 1958)

The sole question presented by this appeal is whether Julius Strupp, who was in Argentina when he was denied an extension of his passport on the ground that he was not a national of the United States, could subsequently bring an action for declaratory judgment of United States nationality under § 360, Immigration and Nationality Act of 1952, 8 U.S. C.A. § 1503, when he was physically within in this country. We hold that he may maintain the action and accordingly reverse the order of dismissal below and remand for further proceedings.

Strupp, a native of Germany, alleges that he was naturalized in 1928 as a United States citizen. Since 1947 he allegedly has spent most of his time in South America engaged in business ventures, returning to this country from time to time for periods of from two to six months. On December 20, 1952 plaintiff returned to South America on a United States passport. In January 1953 he applied to consular officials in Uruguay for an extension of his passport. Due to insufficient time to process the application before Strupp left for Argentina, he was advised to seek an extension from the Consulate in Buenos Aires.

The complaint alleges that he applied in Buenos Aires for an extension of his passport on February 2, 1953, but the application was denied on the ground that he had lost his American nationality by having resided continuously for five years in Argentina and Uruguay. Section 352 (a) (2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1484(a) (2) provides, with exceptions irrelevant here, that a naturalized citizen shall lose his nationality by continuous residence abroad for five years. On September 21, 1954 a certificate of loss of nationality was executed in Argentina,¹  and after approval by the Department of State, the certificate was transmitted to plaintiff on November 9, 1954. He appealed the issue of the certificate on three separate occasions, allegedly to the Board of Review of the Passport Office, although the government asserts the appeals were to the Board of Passport Appeals of the Department of State. In any event, the Board, whichever it may be, affirmed the finding of loss of nationality on July 26, 1955, March 5, 1956, and November 26, 1956.² 

Plaintiff filed this action for a declaratory judgment in December 1956 in the Southern District of New York, pursuant to 8 U.S.C.A. § 1503(a). Contending that plaintiff could not maintain his action unless his claimed rights as a national were denied while he was within the United States, the government moved to dismiss for failure to state a claim upon which relief could be granted. Rule 12 (b) (6), Federal Rules of Civil Procedure, 28 U.S.C.A. The motion was granted and Strupp now appeals.

This appeal turns upon a construction of § 360 Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1503.³  The government maintains that § 1503(a) requires a person to be within the United States when the claimed right is denied. It argues that the procedures to ascertain nationality established in § 1503(a) and in §§ 1503(b) and (c) are mutually exclusive, and that if a person is denied a claimed right while abroad he is remitted solely to the administrative remedies set out in the latter two subsections of the provision. To permit one such as plaintiff to seek a declaratory judgment, it is contended, would sanction and encourage the circumvention of the orderly procedures established by Congress.

We think the government's position is without support either in legislative history or in statutory policy. While as a matter of grammatical construction § 1503(a) is perhaps susceptible to either of the two interpretations urged upon us, it seems clear that the purpose of the provisions was to foreclose actions by persons only while they were abroad and not when they were actually within the United States.

The Nationality Act of 1940, § 503, 54 Stat. 1171, provided that a person denied a claimed right as a national could institute an action "regardless of whether he is within the United States or abroad * * *" and, if abroad, could obtain a certificate of identity from the local American consul to come to this country to prosecute the action. Concerned about the volume of actions, many of them spurious, brought in the courts and the opportunity afforded those obtaining certificates of identity to come to this country and then disappear. Puig Jiminez v. Glover, 1 Cir., 1958, 255 F.2d 54, 56 and references there cited, Congress in 1952 sharply restricted the jurisdiction of the federal courts to entertain such actions, as well as the class of persons permitted to obtain certificates of identity.

Referring to the jurisdiction of the courts, the Senate Report stated, "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." S.Rept. No. 1137, 82d Cong., 2d Sess. 50 (1952). We think it plainly appears that, in so stating the intent of the provision and in light of § 503 of the Nationality Act of 1940, those responsible for the bill believed its only effect was to prevent actions by those not within the country at the time the action was brought. Such an effect, coupled with the restriction of the class to whom certificates of identity might be issued, was deemed desirable to prevent frivolous and fraudulent actions by persons abroad, and to reduce substantially the number of persons traveling to this country under certificates of identity. Neither purpose would be served by denying Strupp, who is within the United States, access to the courts.

The recent opinion of Chief Judge Magruder writing for a unanimous First Circuit Court of Appeals in Puig Jiminez v. Glover, supra is square authority in favor of Strupp's position. It was there held that where the plaintiff is within the United States⁴  the district court has jurisdiction of an action for declaratory judgment whether or not the denial of the right occurred in the United States or elsewhere. We agree.

Reversed and remanded.