In this suit by appellee for a declaratory judgment that he is a
citizen of the United States, the underlying issue as to the
constitutionality of §401(j) of the Nationality Act of 1940 being
clouded by an issue as to whether collateral estoppel prevents the
Government from challenging appellee's citizenship, the case is
remanded to the District Court with permission to the parties to
amend the pleadings, if they so desire, to put in issue the
question of collateral estoppel and to obtain an adjudication upon
it. Pp.
362 U. S.
384-387.
Cause remanded.
PER CURIAM.
This is a suit by appellee for a declaratory judgment that he is
a citizen of the United States. The District Court sustained the
contention of the United States that appellee had lost his
citizenship by reason of § 401(j) [
Footnote 1]
Page 362 U. S. 385
of the Nationality Act of 1940, 54 Stat. 1137, as amended, 58
Stat. 746, 8 U.S.C. § 1481(a)(10), and the Court of Appeals
affirmed. 238 F.2d 239. Meanwhile, we had decided
Trop v.
Dulles, 356 U. S. 86, and,
when certiorari was sought here, we granted the petition and
remanded the cause to the District Court for reconsideration in
light of that decision.
356 U. S. 258. On
remand, the District Court held that § 401(j) was unconstitutional.
The case is here on direct appeal (28 U.S.C. § 1252) from the
judgment of the District Court holding that appellee is therefore a
citizen of the United States. We noted probable jurisdiction. 359
U.S. 933.
After the case was argued, the Court,
sua sponte, put
to the parties the following questions based on appellee's
conviction for draft evasion: [
Footnote 2]
"(1) Was the judgment of conviction of appellee for draft
evasion premised in any respect upon his
Page 362 U. S. 386
citizenship status after the date of enactment of Section
401(j)?"
"(2) If so, does the judgment of conviction for any reason
foreclose litigation of the appellee's citizenship in the present
case?"
"(3) Are the foregoing questions appropriate for the Court's
consideration?"
The parties have filed supplemental briefs, and, from them, it
appears that the offense charged, and to which appellee pleaded
guilty, was departing from the United States November 15, 1942, to
evade service in the Armed Forces and remaining away until November
1, 1946. The statute under which he was convicted placed the duty
of service on "every male citizen of the United States, and of
every other male person residing in the United States." 54 Stat.
885, as amended, 55 Stat. 844, 50 U.S.C.App. 303(a) (1940 ed. Supp.
I).
Appellee contends that, while that Act requires service of
aliens residing here, it is inapplicable to nonresident aliens, and
that therefore the charge in the indictment that appellee remained
away could be applicable only if appellee were a citizen. Indeed,
the facts stipulated in the present case state that he was a
citizen by birth. It follows, appellee argues, that the judgment of
conviction for draft violation necessarily included an adjudication
of citizenship, and that that judgment brings into play the
doctrine of collateral estoppel (
Washington, Alexandria &
Georgetown Steam Packet Co. v. Sickles, 5 Wall.
580;
Emich Motors Corp. v. General Motors Corp.,
340 U. S. 558),
since the conviction of draft evasion was subsequent to September
27, 1944, the date of the enactment of § 401(j). The Solicitor
General argues,
inter alia, that the issue of citizenship
was not necessarily involved in the conviction for draft evasion,
since a charge of evasion by an alien would be made out even though
he had left the country provided the duty to serve had attached
when he resided here. The Solicitor
Page 362 U. S. 387
General suggests, however, that the avoidance of a
constitutional issue when not clearly necessary and the importance
of citizenship to the appellee are important factors to be
considered in disposing of the case. He is of the view that
"there is so little ground for saying that appellee's
citizenship status has already been definitively decided, we
believe that this issue should not and need not be canvassed by the
Court."
Yet, with his customary candor, the Solicitor General says,
"But, if the Court should be convinced on this record that
appellee's citizenship was authoritatively determined in his favor
in the 1947 criminal proceeding, we would not oppose a resolution
of the case on that basis."
The issue of collateral estoppel is a question that clouds the
underlying issue of constitutionality. Since the issue of
collateral estoppel may be dispositive of the case, we remand the
cause to the District Court with permission to the parties to amend
the pleadings, if they so desire, to put in issue the question of
collateral estoppel and to obtain an adjudication upon it.
It is so ordered.
[
Footnote 1]
Section 401(j) reads as follows:
"A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by:"
"
* * * *"
"(j) 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 land or naval
forces of the United States."
[
Footnote 2]
The facts stipulated in the present case and relevant to that
conviction are:
"III. Plaintiff was born in the United States on March 3, 1922,
and thus was a citizen of the United States at birth."
"IV. Under the laws of Mexico, plaintiff is now, and ever since
his birth has been, a citizen and national of the Republic of
Mexico."
"V. During 1942, plaintiff departed from the United States and
went to Mexico for the sole purpose of evading and avoiding
training and service in the Armed Forces of the United States."
"VI. Plaintiff remained in Mexico continuously from sometime
during 1942 until on or about November 1, 1946, for the sole
purpose of evading and avoiding training and service in the Armed
Forces of the United States."
"VII. On June 23, 1947, plaintiff upon his plea of guilty, was
convicted in the United States District Court for the Southern
District of California for violation of Section 11 of the Selective
Service and Training Act of 1940. He was sentenced to imprisonment
for a period of one year and one day."
Separate memorandum of MR. JUSTICE FRANKFURTER.
The Solicitor General's acquiescence in having this case
disposed of by avoiding decision of the important constitutional
question concerning the validity of § 401(j) of the Nationality Act
of 1940, which is the only one presented by the record, probably
reflects an understandable desire on the part of the Government to
have this Court adjudicate that issue unembarrassed by an
extraneous problem that did not come to the surface until this
appeal had been submitted. I do not think that this new matter -- a
claim of collateral estoppel -- should be considered here as though
this were a court of first instance. No matter how sympathetic one
may be towards liberalization of pleading and informality in
judicial proceedings,
Page 362 U. S. 388
the intrinsic demands of orderliness in the judicial process
require that the issues on which this Court is to render judgment
should be appropriately defined through pleadings and proceedings
in the lower courts, and not be initially shaped for adjudication
in this Court. Apart from all else, since taking testimony before
this Court has long since ceased to be feasible, we would
necessarily have to act on the merits of a claim, based on the
rather opaque law of collateral estoppel, resting on documentary
submissions not subject to the test of testimonial examination.
I am prepared, therefore, to accede to the Solicitor General's
suggestion, but to do so by wiping the slate clean. This calls for
an appropriate order vacating the proceedings in this Court and in
the District Court for the Southern District of California, as well
as the deportation proceedings which derived from a finding that
the appellee has lost his citizenship by reason of § 401(j) of the
Nationality Act, a conclusion which is the very issue in
controversy. I would do so without summarizing the positions of the
parties on the claim of collateral estoppel, which is not
relevantly before us on this record, and, above all, without any
intimation regarding the seriousness of such a claim.
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN and MR. JUSTICE
WHITTAKER join, dissenting.
This case having now been in the courts for some six years, we
think that proper judicial administration would require the Court
to decide the question of collateral estoppel, raised belatedly and
sua sponte. As we see it, if the Court can raise that
issue here, certainly we can decide it without the additional delay
of having the parties go through the motions of amending the
pleadings, as suggested. The Court could then pass upon the
constitutional issue and advise the Congress of its power in this
important field, in which it legislated some 16 years ago.