Rusk v. Cort
369 U.S. 367 (1962)

Annotate this Case

U.S. Supreme Court

Rusk v. Cort, 369 U.S. 367 (1962)

Rusk v. Cort

No. 20

Argued October 11, 1961

Decided April 2, 1962

369 U.S. 367

Syllabus

Appellee was born in the United States, but has resided abroad since 1951. His original passport having expired, he applied to the United States Embassy in Prague, Czechoslovakia, for a new one. This was denied on the ground that he had lost his citizenship under § 349(a)(10) of the Immigration and Nationality Act of 1952 by remaining outside the United States for the purpose of avoiding military service. He sued in a Federal District Court for declaratory and injunctive relief against appellant, the Secretary of State, alleging that he had not remained abroad to evade military service, and that § 349(a)(10) was unconstitutional. A three-judge District Court convened to try the case denied a motion to dismiss which was based on the claim that § 360(b) and (c) of the Immigration and Nationality Act of 1952 provide the exclusive procedure under which appellee could attack the administrative determination that he was not a citizen. It also held that § 349(a)(10) was unconstitutional, and awarded appellee a judgment declaring him to be a citizen and enjoining appellant from denying him a passport on the ground that he was not a citizen. Appellant appealed directly to this Court.

Held:

1. Since the District Court held § 349(a)(10) unconstitutional, this appeal is properly before this Court under 28 U.S.C. § 1252. P. 370, n 4.

2. 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) of the Immigration and Nationality Act of 1952, and the remedy pursued in the present case under the Administrative Procedure Act and the Declaratory Judgment Act was an appropriate one. Pp. 369 U. S. 370-380.

3. With respect to the other issues presented by this appeal, the case is set for reargument during the October Term, 1962. P. 369 U. S. 380.

Reported below: 187 F.Supp. 683.

Page 369 U. S. 368

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