This denaturalization proceeding against respondent was
dismissed by the District Court because of failure of the
Government to file an affidavit of good cause with the complaint,
and that Court did not specify that the dismissal was "without
prejudice." The Court of Appeals dismissed the Government's appeal,
and this Court granted certiorari, which was sought by the
Government only to assure its right to proceed against respondent
in a new proceeding.
Held: under Rule 41(b) of the Federal Rules of Civil
Procedure, such a form of dismissal does not bar a new
denaturalization proceeding against respondent,
Costello v.
United States, ante, p.
365 U. S. 265,
and, accordingly, the writ of certiorari is dismissed. Pp.
365 U. S.
290-291.
Writ of certiorari dismissed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This denaturalization proceeding was brought in the District
Court for the Eastern District of New York under § 338(a) of the
Nationality Act of 1940. 8 U.S.C. (1946 ed.) § 738. The "good
cause" affidavit was not filed with the complaint. The District
Court dismissed the complaint following our decision in
United
States v. Zucca, 351 U. S. 91,
"without prejudice to the government's right to institute a
proceeding to denaturalize the defendant upon
Page 365 U. S. 291
the filing of the required affidavit."
149 F. Supp. 952. The Court of Appeals for the Second Circuit
reversed, holding that the dismissal motion should have been
denied. 247 F.2d 123. We reversed, and ordered the case "remanded
to the District Court with directions to dismiss" the complaint.
356 U. S. 256. The
District Court, on the remand, declined to order a dismissal
"without prejudice," and instead entered an order which did not
specify whether the dismissal was with or without prejudice. The
Court of Appeals for the Second Circuit dismissed the Government's
appeal in an unreported opinion which stated that
"there was no basis for [the district judge] to take action
other than he did, namely, to comply with the clear command of the
Supreme Court, without attempted embellishment. We have no occasion
now to pass on the effect of that command upon possible later
litigation."
The Government filed its petition for certiorari only to assure
its right to proceed against the respondent in a new proceeding in
the event that we should rule in
Costello v. United States,
ante, p.
365 U. S. 265,
that the order entered by the District Court for the Southern
District of New York in that case precluded the institution of the
second denaturalization action against Costello. Our decision today
in
Costello establishes that such a form of dismissal does
not bar a subsequent proceeding against the respondent. The writ is
therefore
Dismissed.
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
